Crimes (Mental Impairment and Unfitness to be Tried) Act 1997: Report (html)

7. Juries under the CMIA in the higher courts

Introduction

7.1 Juries are a central part of proceedings under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) (‘CMIA’):

• Juries determine whether an accused is unfit to stand trial.

• Where an accused has been found fit to stand trial, or where there is no issue about their unfitness, juries determine their criminal responsibility. This may include a determination that the accused is not guilty because of mental impairment.

• Where an accused is unfit to stand trial, juries determine their criminal responsibility in a special hearing, and make a finding that the accused is not guilty of the offence charged, is not guilty of the offence charged because of mental impairment^[1] or that the accused (who has been found unfit to stand trial) committed the offence charged.^[2]

7.2 The CMIA, however, also provides for a process where a trial judge may replace the jury as the decision maker in determining whether the accused is not guilty because of mental impairment. Under section 21(4) of the CMIA, if the prosecution and defence agree that the proposed evidence establishes the defence of mental impairment, the trial judge may hear the evidence. If satisfied that the evidence establishes the defence of mental impairment, the trial judge may direct that a verdict of not guilty because of mental impairment be recorded.^[3] If the trial judge is not so satisfied, the accused must be tried by a jury.^[4]

7.3 Jury involvement in proceedings under the CMIA gives rise to an obligation on judges to direct the jury about the law in order to assist the jury in reaching its decision in each of the inquiries listed above. Judges must give these ‘jury directions’ on the findings available to a jury in a special hearing, on how the jury is to approach the defence of mental impairment when it is raised as a defence and on the consequences of a finding of not guilty because of mental impairment.

7.4 The terms of reference specifically ask the Commission to consider whether the process for determining fitness to stand trial can be improved and whether legislative clarification is required on how the law should provide for the jury to approach the elements of an offence and any defences or exceptions, when the defence of mental impairment is in issue. In this chapter, the Commission examines these specific issues and the role of the jury and jury directions in CMIA proceedings in the higher courts more broadly.

7.5 The Commission has drawn the following conclusions on the procedures involving juries under the CMIA:

• The Commission has formed the view that unfitness to stand trial is a pre-trial issue, consistent with the fact that the role of the jury has, over time, become limited to determining criminal responsibility in non-CMIA trials. The Commission therefore recommends that a judge or magistrate determine investigations into unfitness.

• In the Commission’s view, criminal responsibility should be determined by a jury in all CMIA matters, for accused who are fit to stand trial and unfit to stand trial. This serves to benefit the accused, victims and the community. The Commission recommends that the process where a trial judge may replace the jury as the decision maker in determining whether the accused is not guilty because of mental impairment should be abolished.

• The Commission acknowledges the importance of clear and comprehensible jury directions to ensure that the jury applies the law to the facts of the case and to protect the accused’s right to a fair trial. The Commission recommends improvements to jury directions under the CMIA that are consistent with recent legislative reforms to jury directions in Victoria.

Investigations into unfitness to stand trial

7.6 Under the CMIA, a jury determines the question of unfitness to stand trial in an investigation presided over by a judge.^[5] In its Review of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997: consultation paper (‘the consultation paper’), the Commission considered whether there should be some reduction in or removal of the jury’s role in determining unfitness. In particular, the Commission asked whether it is necessary to have a jury determine the question of unfitness in particular circumstances, such as where the prosecution and defence are in agreement that an accused is unfit, or in all cases.

A judge-alone procedure where the prosecution and defence are in agreement

7.7 In cases where the prosecution and the defence agree on the unfitness of an accused (based on expert reports), a jury is nonetheless empanelled to hear evidence that the accused is unfit and to make a formal finding of fitness or unfitness. The process has been criticised for several reasons, including that it can leave jurors feeling confused about their role in the process, it takes up the time of the jurors and the court and it depletes the jury pool without justification.

7.8 The Victorian Parliament Law Reform Committee recommended that the Victorian Government consider amending the CMIA to allow the trial judge to investigate an accused’s unfitness to stand trial, without a need for a jury.^[6] The Committee expressed support for this process to apply where both the prosecution and the defence agree that the accused is unfit.^[7]

7.9 The Victorian Parliament Law Reform Committee observed that the requirement to conduct unfitness investigations before a jury may place an unnecessary burden on the community and could exacerbate the stress and anxiety that accused with intellectual disability or other cognitive impairment ordinarily experience when in court. It outlined the main arguments for removing the requirement that the investigation into an accused’s unfitness to stand trial be conducted before a jury:

• unfitness investigations primarily involve technical matters that are more suitable to be heard by a judge alone

• an unfitness hearing is not designed to be adversarial—no decisions are made about the person’s criminal responsibility

• a judge hearing evidence alone may be quicker, less formal and less confusing or stressful for a person with an intellectual disability or other cognitive impairment.^[8]

A judge-alone procedure in all cases

7.10 More broadly, some have questioned the need for a jury at all in the investigation of unfitness to stand trial, even where the prosecution and the defence do not agree. In England and Wales, the requirement that a jury decide whether a person is unfit to stand trial was based on the Criminal Lunatics Act 1800. In recent decades, however, recommendations have been made that the trial judge be able to determine the issue. The Butler Committee in its Report of the Committee on Mentally Abnormal Offenders said:

Insofar as the question is whether the trial should proceed, juries are not normally involved in a decision of this sort. … A decision of the issue by the judge would be more expeditious than trial by jury, and this is of some importance where the decision has to be made in the middle of the trial. ^[9]

7.11 Similarly, Lord Justice Auld in his Review of the Criminal Courts of England and Wales observed in relation to the issue of unfitness to plead (as it is referred to in that jurisdiction):

It is difficult to see what a jury can bring to the determination of the issue that a judge cannot. He decides similar questions determinative of whether there should be a trial, for example, whether a defendant is physically or mentally fit to stand or continue trial in applications to stay the prosecution or for discharge of the defendant [citation omitted].^[10]

7.12 England and Wales as a jurisdiction has since dispensed with the requirement for a jury in determinations of unfitness to stand trial.^[11]

Views in submissions and consultations

7.13 Nearly all submissions that addressed this issue and the majority of those consulted supported a process where a judge determines unfitness to stand trial if the parties agree that the accused is unfit.^[12] Those stakeholders in favour of this process made the following arguments:

• The jury does not have a real role where the parties agree that the accused is unfit to stand trial.^[13]

• A judge-alone procedure would be more practical and expeditious.^[14] The current process incurs unnecessary costs.^[15] Introducing this new process would justifiably reduce costs.^[16]

• A judge-alone procedure would be less stressful for the accused during the investigation and during the period leading up to the investigation.^[17] In one case an accused with an intellectual disability and in the early stages of dementia was held in remand for 371 days before being found unfit.^[18]

• The complexity of the medico-legal evidence may not be appropriate for jurors.^[19] Further, the jury directions on the multiple criteria for unfitness are complex.^[20]

7.14 There was also support for removing the jury’s role entirely, even where the parties are not in agreement, in investigations of unfitness to stand trial.^[21] Those who supported this option noted that:

• Unfitness is a pre-trial issue. Pre-trial issues are usually determined by a judge.^[22]

• A judge-alone procedure will be more transparent as both parties will have the benefit of the judge’s reasons.^[23]

• In a judge-alone procedure, judges would have greater capacity to modify the proceeding to meet the needs of the accused, for example, by taking breaks.^[24]

7.15 However, others thought that the role of the jury should not be limited in this way. Two submissions said that a judge-alone procedure should only occur if the accused chooses it.^[25] The Victorian Institute of Forensic Mental Health (Forensicare) submitted that where there is disagreement about the accused’s unfitness, the jury should resolve the issue of unfitness.^[26] One submission suggested a ‘Mental Health Court’ model if the role of the jury in investigations of unfitness to stand trial is to be changed.^[27]

7.16 There were also some concerns raised in a consultation about the effect on victims of varying the level of jury involvement in the process.^[28]

7.17 The Commission’s advisory committee had mixed views on the appropriate extent of jury involvement in investigations of unfitness to stand trial. Some members noted the importance of jury involvement for the community, especially in high profile cases, and victims.^[29] A view was also expressed that juries gave the process more rigour. However, other members were of the view that unfitness is a pre-trial issue which should be determined by a judge.^[30] These members believed that judges were more able to deal with the evidence involved in investigations of unfitness and a judge-alone procedure would be more efficient and could decrease the stress on the accused.^[31]

The Commission’s conclusion

7.18 The Commission has considered views on the Victorian Parliament Law Reform Committee’s recommendation for a judge-alone procedure to investigate unfitness to stand trial. The Commission has also considered views on the approach in other Australian jurisdictions and England and Wales, where a judge may determine an accused’s unfitness to stand trial.^[32]

7.19 In the Commission’s view, unfitness to stand trial should be determined by a judge, or a magistrate, in all cases. While submissions and consultations pointed to many benefits of a judge-alone procedure, including cost savings and the avoidance of stress to the accused, the Commission’s conclusion is based on the nature of the investigation into unfitness to stand trial. The Commission has found that the role of the jury has, over time, become limited to determining criminal responsibility in a trial. Investigations into unfitness to stand trial involve a pre-trial issue that need not be determined by a jury, as opposed to a determination of criminal responsibility.

The narrowing role of the jury

7.20 In relation to the determination of pre-trial issues, juries have historically been involved in determining whether to indict and commit a person to trial. Until 2009, such a process existed under the Crimes Act 1958 (Vic).^[33] The process was first introduced in 1864, at which time the Attorney-General held the ultimate prosecutorial discretion, and the process functioned to avoid ‘leav[ing] the prosecution of justice substantially to men subject to the influence of the prevailing political party’.^[34] In 2009, the Criminal Procedure Act 2009 (Vic) abolished the grand jury procedure, resulting in the prosecution of an indictable offence being decided solely by the Director of Public Prosecutions.^[35]

7.21 The jury’s role in determining pre-trial issues has also changed in decisions concerning special pleas. An accused may enter a special plea in addition to a plea of not guilty in some circumstances.^[36] Previously, judges would empanel a jury to determine a special plea.^[37] However, as the Judicial College of Victoria notes, with the development of the common law, a special plea can be interpreted as a question of law to be determined by a judge.^[38]

7.22 The CMIA process of investigating unfitness to stand trial appears to be the only other instance in a criminal proceeding where the jury determines an issue other than criminal responsibility. The requirement for a jury is a ‘historical survival from the days when prisoners were subjected to “peine forte et dure”’, a method that is no longer practised.^[39]

Other considerations

7.23 Prosecutorial discretion now lies with an independent Director of Public Prosecutions,^[40] diminishing the need for a jury to act as a safeguard against politically motivated prosecutions. The Commission concludes therefore, like the decision to indict an accused and the determination of special pleas, that investigations into unfitness to stand trial should be similarly determined by a judge.

7.24 While the Commission notes the concerns expressed in consultations regarding the interests of the community and victims, the Commission considers that these interests can be accommodated within a judge-alone process. Further and significantly, a jury will make the ultimate determination of criminal responsibility. The Commission also does not consider that a judge-alone process would be less rigorous than a process involving a jury. In any case, there is currently a right for an accused to seek leave to appeal against a finding of unfitness by a jury.^[41] The Commission’s recommendation in Chapter 9 to introduce a right of appeal for an accused who has been found fit to stand trial or ‘fit to plead guilty’ also acts as a safeguard under the proposed judge-alone procedure for the determination of unfitness.

7.25 Also relevant to consideration of this issue are the Commission’s recommendations in Chapter 3 to introduce additional requirements into the criteria for unfitness to stand trial^[42] and to introduce a ‘fitness to plead guilty’ test, where an accused can be found fit to plead guilty if they satisfy certain criteria.^[43] These recommendations introduce a range of additional requirements for nuanced pre-trial decision making, a task which in the Commission’s view is more appropriate to be conducted by a judge. An equivalent example is the decision a judge is required to make about the capacity of a witness to give evidence if they are under a particular age or have a cognitive or communication impairment.^[44]

7.26 The Commission’s recommendation aims to:

• limit the role of the jury in CMIA matters to criminal responsibility and not pre-trial issues, consistent with other criminal hearings

• reduce the stress or anxiety due to the presence of the jury that may be experienced by an accused, who may have disordered or impaired mental processes at the time of the hearing

• expedite the unfitness to stand trial process

• increase the efficiency of the court process by freeing up court resources and the jury pool for the determination of criminal responsibility.

Recommendation

51 Section 7(3) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) should be amended to provide that the question of a person’s fitness to stand trial is to be determined on the balance of probabilities by a judge or a magistrate.

Determining the defence of mental impairment

7.27 As discussed at [7.2], under section 21(4) of the CMIA, if the prosecution and defence agree that the evidence establishes the defence of mental impairment, the trial judge may hear the evidence and, if satisfied that the evidence establishes the defence, may direct the recording of a verdict of not guilty because of mental impairment. This procedure was introduced several years after the introduction of the CMIA, based on the Commission’s recommendation in its Defences to Homicide reference.^[45]

7.28 The following section considers:

• whether any changes should be made to the existing judge-alone procedure under section 21 in ordinary criminal trials

• whether a new process should be introduced to make the existing judge-alone procedure available to someone who has been found unfit to stand trial, in place of a special hearing.

The defence of mental impairment in an ordinary criminal trial

7.29 In the consultation paper the Commission sought feedback on whether the judge-alone procedure in section 21 of the CMIA was operating well in practice for people who were fit to stand trial. The Commission asked whether any changes should be made to the current process.

Views in submissions and consultations

7.30 The Commission found support for a judge-alone procedure to determine the defence of mental impairment in place of an ordinary criminal trial. This support was underpinned by the following views in submissions and consultations:

• When the parties and the psychiatrists agree that the evidence establishes the defence of mental impairment, the jury process can become ‘artificial’ or a ‘formality’.^[46]

• The current process, which allows a judge-alone determination, is appropriate.^[47]

• A judge may be better able to determine the issue given their experience instead of requiring a jury to assimilate and understand very complex material in a short space of time.^[48]

7.31 The importance of considering the perspective of victims in a process based on the consent of the parties was also noted.^[49]

The Commission’s conclusion

7.32 The Commission has had regard to the benefits associated with the existing judge-alone procedure, the support for it in submissions and consultations and the absence of problems concerning its practical operation. The Commission also acknowledges that where the prosecution and defence agree that the evidence establishes the mental impairment defence, it is unlikely that the jury will arrive at a different conclusion. Further, a jury’s decision that a person has not established the defence can be overturned on appeal if the evidence is such that no reasonable jury could have made that decision.^[50]

7.33 However, in the Commission’s view these factors do not overcome the importance of jury involvement in the determination of criminal responsibility in CMIA matters. As the Commission noted in its jury directions reference, ‘the jury system is and continues to be the best way to determine guilt’.^[51] This is particularly true in CMIA matters which often involve the occurrence of a serious event that has profound and lasting consequences for the accused, victims and the community. The Commission considers that this calls for the direct involvement of the community, in the form of the jury, in determining criminal responsibility.

7.34 For the community, trial by jury serves as ‘the community’s guarantee of sound administration of criminal justice’.^[52] As Justice Deane observed in Brown v The Queen, the institution of trial by jury is for ‘the benefit of the community as a whole as well as for the benefit of the particular accused’.^[53] The Commission sees substantial value in the public examination of these matters. Further, the involvement of the jury requires the presentation of the evidence and the issues in a case in a way that is comprehensible to the accused, victims and the community.^[54] Exposure of this kind serves a significant public and educative function. There is still a lack of awareness and understanding of people with mental conditions; a process involving a jury can help the parties involved, and the public, to understand why the law deals differently with people who come under the CMIA.

7.35 For the accused, the jury provides an additional layer of protection of their rights. Requiring the parties to put their positions to the court before a group of independent members of the community provides for a more rigorous process and a form of salutary control over the determination of criminal responsibility.

7.36 CMIA processes can also be particularly difficult for victims and their families. As the Director of Public Prosecutions, John Champion SC noted:

The often violent nature of the offending in this area, coupled with the acceptance of the mental illness of the accused person, too frequently leaves victims and their families feeling that the offending behaviour has in some way, been excused. Being found not guilty of a crime due to mental impairment, and the imposition of non-custodial supervision orders in particular, can be difficult outcomes for victims and their relatives and families to comprehend, and accept. My own experience shows that this difficulty often extends to the general community.^[55]

7.37 The Commission considers that the determination of criminal responsibility by a jury provides a greater level of acknowledgment to victims and their families of the harm that they have experienced. The importance of acknowledgment of victims and their family members is not diminished in cases where an accused has been found under the law not to be criminally responsible due to a finding of not guilty because of mental impairment. The Commission recognises the importance of victims and their families witnessing the process of the hearing, and listening to the psychiatric or psychological evidence and the reasons for dealing with the accused within the forensic mental health or disability system rather than the prison system.^[56] In the Commission’s view, this will promote the acceptance and understanding of the finding of not guilty because of mental impairment and its underlying causes, such as a mental illness, intellectual disability or other cognitive impairment.

7.38 Finally, although there has been a slight trend in Victoria towards reducing the role of the jury in the determination of criminal responsibility (for example, through the introduction of direct acquittals and the increasing number of indictable offences triable summarily), the jury continues to play a paramount role in determining criminal responsibility in this jurisdiction.

7.39 The Commission acknowledges that the change it recommends here reverses its recommendation in the 2004 Defences to Homicide final report where the Commission observed that the jury’s role in a process where the prosecution and defence agree that the evidence establishes the defence of mental impairment was perfunctory and ceremonial.^[57] In light of the reasons outlined above, the Commission no longer holds this view. Further, the Commission considers that any sense of artificiality in the process will be avoided by a proper explanation by the judge to the jury of their role and the reason for the special nature of the process.

7.40 The Commission accordingly recommends that the process under section 21 of the CMIA be abolished and that the CMIA should not provide for an exception to a jury determining criminal responsibility (regardless of whether prosecution and defence agree that the evidence establishes the defence of mental impairment).

Recommendation

52 A jury should determine criminal responsibility in all criminal trials in the higher courts under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic). Section 21(4) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) should be abolished.

7.41 An exception to this is the determination of criminal responsibility by a judicial officer (either by a magistrate in the Magistrates’ Court or Children’s Court or by the President of the Children’s Court) where the defence of mental impairment is raised, currently provided for in the CMIA.^[58] The Commission considers this to be an appropriate exception consistent with the general exception that is made to the requirement for a jury in cases where jurisdiction is granted for summary determination in the Magistrates’ Court or determination within the specialist jurisdiction of the Children’s Court.

The defence of mental impairment following a finding of unfitness to stand trial

7.42 In the consultation paper the Commission discussed the uncertainty concerning whether, following a finding of unfitness to stand trial:

• the CMIA permits a judge-alone procedure^[59] to determine whether the defence of mental impairment has been established, or

• the CMIA requires a special hearing to be conducted before a jury in all circumstances.

7.43 Since the consultation paper was published, the Court of Appeal handed down its decision in SM v The Queen^[60] (‘SM’). An issue in SM was whether the judge-alone procedure in section 21 is available under the requirement in section 16 that a special hearing ‘be conducted as nearly as possible as if it were a criminal trial’ to which the Juries Act 2000 (Vic) was applicable. The majority found that it was not and it was held that a judge-alone procedure could not follow a finding of unfitness to stand trial based on a current reading of the legislation.^[61] As the law stands, after SM, a jury must be empanelled to deliver a verdict in a special hearing and a judge-alone determination of criminal responsibility under the CMIA is not open following a finding of unfitness.

7.44 However, the question of whether a judge-alone procedure should be available to an accused who has been found unfit is open for consideration by the Commission. This question is relevant to the question of whether improvements can be made to the unfitness to stand trial process, as well as the requirement to ensure that the operation of the CMIA balances effectiveness with the need to be just and consistent with the underlying principle of the right to a fair trial.

7.45 In the consultation paper the Commission considered justifications for allowing a judge to determine the defence of mental impairment in place of a special hearing before a jury. For example, a judge-alone hearing may be less stressful or distressing for an accused or their family members.^[62] The Commission also considered arguments against allowing a judge-alone procedure. For example, a person who has been found unfit to stand trial may not be able to instruct their lawyer to agree to the matter being determined by a judge rather than a jury.^[63]

Views in submissions and consultations

7.46 Submissions and consultations that addressed this topic were divided in their views.^[64] Those who were in support of a judge-alone process in place of a special hearing (where the prosecution and defence agree that the evidence establishes the defence of mental impairment) noted that:

• There is little utility or benefit in court and jury resources being allocated to a special hearing in these circumstances.^[65] A judge-alone procedure would avoid the delay, inconvenience and expense of a special hearing.^[66]

• The court is able to determine the accused’s criminal responsibility in a robust manner.^[67]

• A judge-alone process would avoid putting the parties through the stress of a special hearing.^[68]

7.47 Those stakeholders who did not support a judge-alone process argued that a person who is unfit to stand trial cannot instruct their lawyer to agree to proceed by judge alone.^[69] The Victorian Equal Opportunity and Human Rights Commission (VEOHRC) submitted that this type of ‘substituted decision-making’ is potentially inconsistent with a person’s right to the equal protection and equal benefit of the law in the Charter of Human Rights and Responsibilities Act 2006 (Vic).^[70] The VEOHRC also referred to Article 12 of the Convention on the Rights of Persons with Disabilities, which requires that measures relating to the exercise of legal capacity respect the rights, will and preferences of the person.^[71]

The Commission’s conclusion

7.48 As with the determination of the defence of mental impairment in ordinary trials, the Commission is of the view that the same considerations apply in the determination of criminal responsibility of people found unfit to stand trial. Determinations of criminal responsibility in these circumstances should also be conducted by a jury.

7.49 In addition, the Commission notes the difficulty in lawyers obtaining instructions

from a client who is unfit to stand trial to agree to a matter being determined by a

judge. Although an accused will have to go through a special hearing, despite the

parties involved thinking that the best course of action is a judge-alone procedure, the Commission considers that this is necessary to protect the rights of the accused. As Justice Bell noted in DPP v Watson:^[72]

it is a very serious thing to conclude that counsel can exercise decision-making capacity on behalf of an accused without instructions, especially where the consequence would be that the accused would thereby lose the opportunity to test the prosecution case and obtain an acquittal.^[73]

7.50 The Commission notes the concern that requiring an unfit accused to attend a special

hearing that involves the empanelment of a jury and determination of criminal responsibility is very likely to be stressful for an accused and their carers. The Commission has recommended that an accused should be allowed to be absent from a special hearing (Recommendation 66) to assist in addressing this concern.

Recommendation

53 A jury should determine the criminal responsibility of all people found unfit to stand trial in the higher courts under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic). If Recommendation 52 to abolish section 21(4) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) is not adopted, the process provided for in that section should not be available to determine the criminal responsibility of a person found unfit.

7.51 A similar exception to that discussed at [7.41] applies to determinations of criminal responsibility in special hearings after a finding of unfitness in the Magistrates’ Court and Children’s Court (if the Commission’s recommendations to provide a power to determine unfitness are adopted).

Cost implications of changes to jury involvement in CMIA determinations

7.52 The Commission’s recommendations to change the current involvement of juries in determinations of unfitness and determinations of criminal responsibility will have cost implications, including:

• costs associated with the jury (for example, the fees paid to jurors)

• costs associated with court usage and time spent by judges, court staff, defence practitioners and prosecutors in court (for example, in the time taken to empanel a jury and in directions to the jury).

Judge-alone determinations of unfitness to stand trial

7.53 The Commission’s recommendation to remove the jury in determinations of unfitness to stand trial and to provide that judges and magistrates determine unfitness to stand trial will result in cost savings.

7.54 The Juries Commissioner’s Office (JCO) advised that there is a fixed cost associated with having jury trials in Victoria (such as staffing and facilities at the JCO and the courts). Additionally, the cost for each prospective juror attending for jury service for the first day is approximately $46 per person. This comprises the $40 jury service fee paid to the pool member, and approximately $6 in administrative costs to the JCO.

7.55 In most cases, this $46 cost to government is likely to be significantly less than the cost incurred by a prospective juror’s employer through the requirement that they pay the balance of the salary of their staff member,^[74] and lose the benefit of their productivity for at least one day. In work conducted to analyse the cost implications of the Commission’s recommendations (see Chapter 5 at [5.174]–[5.175]), the University of Melbourne calculated the opportunity cost to employers for 33 people per day (the upper limit of the average panel size for an ordinary criminal trial) to be over $6,600 daily.^[75]

7.56 The JCO advised that the panel size for a 12-person jury^[76] varied depending on the type of CMIA hearing and whether or not the particular hearing involved challenges.

7.57 The panel size for hearings to investigate unfitness to stand trial and special hearings to determine criminal responsibility after a finding of unfitness ranges from 20–27 prospective jurors. If there are to be no challenges, the panel will be 20 people and if there are to be challenges, the panel size is increased to 27 people.^[77]

7.58 The panel size for a criminal trial where the defence of mental impairment is expected to be raised (where there are no issues regarding unfitness to stand trial) is 30–33 people. The average panel size for a criminal trial is 39 prospective jurors. However, this figure accounts for larger panels required for longer or complex trials.

7.59 Using the range of standard panel size of 20–27 prospective jurors for a hearing to investigate unfitness to stand trial, each matter that is not required to be determined by a jury would result in the following savings:

• $920–$1,242^[78] (the cost of empanelling a jury for the first day of an unfitness determination)

• $480^[79] (the cost for a jury for each subsequent day of the unfitness determination).

7.60 Based on information from Forensicare about requests made by the Office of Public Prosecutions for reports of assessments of unfitness in 2012–13, this could result in such savings being made in up to an estimated 45 cases per year.^[80]

7.61 It was suggested in the Commission’s consultations that many unfitness determinations would be unlikely to run for more than a day if they were uncontested, even with the involvement of the jury. Assuming that all 45 cases required a one-day hearing, the total costs per financial year could be between $41,400^[81] and $55,890.^[82]

7.62 If each case required a two-day hearing, a cost of $21,600 ($480 x 45 cases) would be added to these figures, resulting in a total cost of between $63,000 and $77,490 for the 45 cases in one financial year. On the basis of these calculations, the costs savings per year associated with not having jury trials to determine unfitness would be between $41,400 and $77,490.

7.63 As noted at [7.52], empanelling juries also results in costs associated with court resources required for hearings of unfitness matters, such as use of courtrooms and time taken to empanel. These costs have not been included in this savings calculation as the Commission has been unable to quantify them.

Removing judge-alone determinations of criminal responsibility

7.64 The Commission’s recommendation to remove judge-alone determinations of criminal responsibility under the current CMIA provisions will require all determinations of criminal responsibility under the CMIA in the higher courts to be made by a jury. If adopted, this will have a cost implication. Requiring cases that previously could have been determined by a judge alone to be determined by a jury would incur fixed costs associated with having a jury (discussed above at [7.54]), as well as the specific costs associated with prospective jurors attending for jury service on the first day of empanelment and the jurors for subsequent days of a hearing.

Hearings in ordinary criminal trials

7.65 Assuming the smallest panel size of 30 prospective jurors, each criminal hearing where the defence of mental impairment may be raised and requires determination by a jury incurs the following costs:

• $1,380^[83] to empanel a jury for the first day of a criminal trial

• $480^[84] for a jury for each subsequent day of the criminal trial.

7.66 The Commission was not able to obtain an exact figure of the number of judge-alone determinations of criminal responsibility. However, based on its analysis of cases determined under the CMIA in the higher courts, it can be cautiously estimated that just under half of cases might proceed using these provisions.

7.67 Of the 159 cases determined under the CMIA between 1 July 2000 and 30 June 2012, there were judgments available for 65 cases (40.9 per cent), from which more detailed information about the case could be gleaned. In 41 of the 65 cases, information in the judgment indicated a finding of not guilty because of mental impairment, of which 23 (56.1 per cent) were made by a judge under the judge-alone provisions.^[85]

7.68 Using that percentage and the number of reports that were requested from Forensicare in 2012–13 for an assessment on the defence of mental impairment, an estimate can be made of the possible number of judge-alone determinations. Information from Forensicare on the report requests made by the Office of Public Prosecutions in 2012–13, indicates that there were 15 requests for a report on the issue of the defence of mental impairment alone. This is an indication of the minimum number of reports and does not represent all the requests for reports made over the relevant period.^[86]

7.69 Therefore, assuming all of these cases were to go to trial and the defence of mental impairment was raised, it can be estimated that approximately eight cases in 2012–13 (56.1 per cent of 15 report requests) could have been determined by the judge-alone procedure. If so, the cost of having jury trials for those determinations of criminal responsibility, instead of judge-alone determinations, would be $11,040^[87] for eight one-day trials.^[88]

7.70 While this cost implication is an important consideration, in the Commission’s view it is not significant and does not outweigh the importance of having community involvement, by way of a jury, in all determinations of criminal responsibility.

Hearings where the accused is unfit to stand trial

7.71 The Commission’s recommendation to confirm that a jury determine criminal responsibility when an accused is unfit clarifies the current uncertainty about whether judge-alone determinations of criminal responsibility can follow a finding of unfitness. There is insufficient information on the extent of any variation in practice on this issue, therefore it is not clear whether this will represent a substantive change in the operation of the current law and thus result in additional costs for special hearings following a finding of unfitness.

7.72 However, for completeness, the Commission has had regard to the costs required for a jury in a special hearing.

7.73 Using the panel size range of 20–27 prospective jurors for a hearing to investigate unfitness to stand trial, each matter that is required to be determined by a jury would result in the following costs:

• $920–$1,242^[89] to empanel a jury for the first day of a special hearing

• $480^[90] for a jury for each subsequent day of the special hearing.

7.74 According to Forensicare, in 2012–13 the Office of Public Prosecutions requested a report on the issues of unfitness and the defence of mental impairment in 27 cases. While this does not represent all report requests made in that year (see [7.68]), if the person was found unfit to stand trial in all such cases, a special hearing would be required to determine criminal responsibility and a jury empanelled for that purpose.

7.75 Assuming all of these matters proceeded under the CMIA, if a jury was required to be empanelled in all special hearings to determine criminal responsibility (as would be the case if Recommendations 52 and 53 were implemented), the costs incurred for these matters could range from between $24,840 to $33,534 for the first day of the hearing and if each matter required a second day of hearing, an additional $12,960 for the 27 matters.

Jury directions under the CMIA

7.76 Under the CMIA, judges must direct the jury on the following issues:

• the findings available in a special hearing at the commencement of a special hearing

• how to approach the elements of an offence and any defences when the defence of mental impairment is in issue

• the consequences of a finding of not guilty because of mental impairment when the defence has been raised in a trial or a special hearing.

7.77 The following section discusses each of these directions. The Commission makes recommendations to improve the way the jury is directed in CMIA matters.

7.78 Recent work in this area resulted in the Jury Directions Act 2013 (Vic) that aims to reduce the complexity of jury directions in criminal trials and to assist the trial judge to give jury directions in a manner that is as clear, brief, simple and comprehensible as possible.^[91] The Commission’s recommendations in this area of law aim to be consistent with this legislation.^[92]

Directions on the findings in special hearings

Current law

7.79 At the commencement of a special hearing, the judge must explain to the jury:

• that the accused is unfit to stand trial

• the meaning of being unfit to stand trial

• the purpose of a special hearing

• the findings that are available

• the standard of proof required for those findings.^[93]

7.80 Section 17(1) of the CMIA provides that the following findings are available to the jury at a special hearing:

• not guilty

• not guilty of the offence because of mental impairment

• committed the offence charged.

7.81 The consultation paper highlighted the different approaches taken to directing the jury on the findings available in special hearings and the confusion this may cause. The Commission summarised two of the main approaches:

• The trial judge must explain all three findings to the jury, even where there is no positive or direct evidence in relation to one of the findings (usually in relation to the finding of not guilty because of mental impairment).^[94]

• The trial judge is required to explain to the jury the verdicts that are ‘relevantly available’.^[95]

7.82 The Commission sought views on the most appropriate way to direct the jury on findings in special hearings.

Views in submissions and consultations

7.83 Submissions and consultations that addressed this issue unanimously agreed that the jury directions on findings in special hearings should be in line with the reforms introduced by the Jury Directions Act.^[96] The following views were expressed:

• It is difficult to frame a clear direction if all three findings have to be put to the jury.^[97] If a finding is not open on the evidence, there is no reason to provide it as an option.^[98]

• Jury directions need to be as simple as possible.^[99]

The Commission’s conclusion

7.84 In the Commission’s view the current requirement in Victoria to direct the jury on all three findings, while being legally correct, is unnecessary and has the potential to be confusing to juries. Under this approach, even where there is no evidence in relation to the finding, or when the accused wishes that the finding not be left to the jury, all findings must still be put to the jury.^[100] As the Commission observed in its final report on jury directions, such complex jury directions do not assist effective communication with juries—jury directions should be as clear, brief, simple and comprehensible as possible.^[101] This is crucial to upholding the accused’s right to a fair hearing.

7.85 The Commission agrees with views that jury directions on findings in special hearings should be in line with the reforms that are being driven by the Jury Directions Act. The intention of these reforms is that in giving directions in criminal trials, trial judges are required to give directions on only so much of the law as the jury needs to know to determine the issues in the trial.^[102] This would exclude matters not raised in evidence, such as an additional finding in a special hearing.

7.86 The centrepiece of the Jury Directions Act which commenced on 1 July 2013 is the jury direction request provisions in Part 3 of the legislation. To address the problems with directions, including their length, relevance and comprehensibility, the provisions create a new framework for determining which directions are given in a trial. However, the procedure specified by the Jury Directions Act does not apply to directions given by trial judges under other legislation and would therefore not apply to the provisions of the CMIA.^[103] The Commission recommends that the direction on the findings in a special hearing should be given in line with Part 3 of the Jury Directions Act.

7.87 If Part 3 of the Jury Directions Act applied to the judge’s obligation to direct the jury on CMIA findings, defence counsel would be required to inform the trial judge which findings are in issue and both parties would be required to request the findings in issue they wanted the trial judge to direct, or not direct, the jury on. The findings the trial judge would direct the jury on would depend on whether a finding was in issue or was requested.

Recommendation

54 Part 3 of the Jury Directions Act 2013 (Vic) should apply to the judge’s obligation to direct the jury on the findings that are available in special hearings under section 16(3)(d) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic).

Directions on the elements of an offence when the defence of mental impairment is in issue

7.88 The terms of reference ask the Commission to consider whether legislative clarification is required as to how the law should provide for the jury to approach the elements of an offence, and any defences or exceptions where the defence of mental impairment is in issue.

7.89 In the consultation paper, the Commission identified two main aspects of this issue, as follows:

• The order of considering elements of an offence—whether a jury should be directed that the prosecution is required to prove all the elements of an offence before a jury can consider the defence of mental impairment, or directed that the prosecution need only prove certain elements of the offence and not the fault element before the jury can consider the defence of mental impairment.

• The relevance of mental impairment to the jury’s consideration of the fault element of an offence—whether a jury ought to be able to consider evidence of mental impairment (mental illness, intellectual disability or other cognitive impairment) in determining whether the fault element of an offence has been proved beyond reasonable doubt.

Current law

Proving the elements of an offence—physical and fault elements

7.90 For an accused to be criminally responsible for committing an offence, the prosecution must demonstrate beyond reasonable doubt that the person committed both the physical (‘actus reus’) and mental elements, referred to as fault elements (‘mens rea’), of that offence. Examples of fault elements are intention, knowledge, or recklessness.

7.91 Where an offence does not expressly state whether a fault element applies to a physical element, the common law implies an intention in relation to the offence.^[104] One problem in establishing the fault element of an offence is that many offences specify a physical element but do not expressly state whether an intention applies to that physical element. This can make it difficult to identify the relevant state of mind of the accused required for that offence.

7.92 To illustrate this point, the Department of Justice’s recent Review of Sexual Offences: Consultation Paper provides the example of the offence of sexual penetration of a child under the age of 16 years.^[105] In these circumstances, it is unclear whether the relevant fault element is the intention of an accused to engage in sexual penetration or the intention of an accused to engage in sexual penetration of a child under the age of 16 years. The paper outlines further difficulties in proving the fault element of an offence:^[106]

• Different fault elements can be used to refer to similar concepts—words or phrases have been given different meanings depending on the context in which they are used.

• For some offences, there can be a fault element that does not apply to any physical element (for example, for the offence of ‘assault with intent to rape’, the intention to rape does not attach to any physical element of the offence but is a state of mind of the accused directed at some possible future conduct).

• There may be occasions where the standard fault element does not work appropriately for an offence (for example, the offence of rape where the fault element extends to awareness of the fact or not giving any thought to whether a person is consenting).

The fault element in mental impairment cases

7.93 As a general principle, when a person is accused of an offence, all the elements of the offence must be proved beyond reasonable doubt.^[107] The CMIA specifies that to establish the defence of mental impairment, it must be proved that the accused engaged in conduct (an act or omission) that constitutes the offence.^[108] Under the CMIA, conduct ‘includes doing an act or making an omission’.^[109] This must be proved to the usual standard under the criminal law, that of ‘beyond reasonable doubt’.

7.94 In matters where mental impairment is an issue, it is currently unclear whether the prosecution must also prove the fault element of the offence, prior to a jury being able to consider whether the person has a defence of mental impairment.

7.95 It must then be proved on the balance of probabilities (more likely than not) that, at the time of the conduct, the accused was suffering from a mental impairment that had the effect that the accused did not know the nature and quality of the conduct or did not know that the conduct was wrong.^[110] If the jury is satisfied of either of these particular effects, the finding will be not guilty because of mental impairment, rendering the person not criminally responsible for their action or omission.^[111] The jury must specify whether a finding was based on a mental impairment defence where an accused is found not guilty.^[112]

Approaches to directing the jury on the order of offence elements

7.96 Currently in Victoria, there are two main approaches to directing juries in cases where mental impairment is an issue:^[113]

• the approach taken by the Victorian Court of Criminal Appeal in R v Stiles^[114] (‘Stiles’)

• the approach taken most recently by the High Court in Hawkins v The Queen^[115] (‘Hawkins’).

The Stiles approach

7.97 In the case of Stiles, the accused was charged with manslaughter after assaulting a man with a piece of timber. The mental impairment defence was raised as the accused had been diagnosed with schizophrenia.

7.98 While the case did not detail the process by which the fault elements are to be considered in establishing the defence of mental impairment, it did comment on the order in which the jury should consider the elements of the offence.

7.99 The court held that the jury must start with the presumption that the accused does not have a mental impairment. The jury must then determine if all the elements of the offence have been proved, with the defence of mental impairment only considered if the prosecution succeeds in proving all elements of the offence. If the jury determines that the accused did not commit the physical elements of the offence, the accused will be acquitted. If the jury is satisfied beyond reasonable doubt that the accused did commit the physical element of the offence and the fault elements were present, they may then consider evidence relating to the defence of mental impairment.^[116]

7.100 The Stiles approach requires that the jury consider all the elements of the offence prior to making a determination about the existence of a mental impairment. This ensures that the accused is able to obtain a complete acquittal if the jury is not satisfied that the prosecution has proved all the elements of an offence.^[117]

7.101 This approach, however, requires the jury to engage in artificial reasoning, as they must presume that the accused is of sound mind while considering the physical and fault elements of the offence, even if they have heard evidence that the accused was suffering from a mental impairment.

The Hawkins approach

7.102 In the case of Hawkins, the accused was charged with the murder of his father. The defence in this case was that the accused, in a disturbed state of mind, intended to commit suicide but upon seeing his father, fired a gun and killed him instead, without the specific intent to murder.

7.103 The accused’s counsel did not raise the defence of insanity (under the Criminal Code Act 1924 (Tas)) or wish that defence to be put to the jury and so the main issue considered in the case was the interaction between mental impairment and voluntariness. The court stated:

In principle, the question of insanity falls for determination before the issue of intent. The basic questions in a criminal trial must be: what did the accused do and is he criminally responsible for doing it? … It is only when those basic questions are answered adversely to an accused that the issue of intent is to be addressed.^[118]

7.104 The Hawkins approach therefore requires that after the jury has considered the physical elements, it turns next not to the second element of the offence, namely intent (as per the Stiles approach) but rather to the question of whether an accused has a mental impairment defence. Under this approach, once the jury has determined that the accused did the physical acts and does not have a mental impairment defence (and is therefore deemed responsible for those physical elements), it can consider the question of whether they had the requisite level of intention.

7.105 Following this approach, the accused could be found not guilty because of mental impairment of an offence that they in fact did not commit (that is, all of the elements of the offence were not committed). This could deny the accused the right of an outright acquittal of the offence.

Other approaches to directing on the order of elements

7.106 The Victorian Criminal Charge Book^[119] also outlines other approaches that may be considered, stating that given that the ‘law in this area is unclear, judges who are required to charge a jury in a case that raises the defence of mental impairment will need to consider which of these approaches (if any) to apply’.^[120] These approaches include the:^[121]

• High Court approach (prior to Hawkins)—The prosecution must prove all of the elements of the offence before considering the defence of mental impairment. An accused will be acquitted where the fault element cannot be proved due to mental impairment.^[122]

• Pantelic approach—A qualified acquittal may be given where all of the elements have been proved and the accused satisfies the requirements of the defence, or where all elements of the offence are not satisfied because the accused was not acting voluntarily because of their mental impairment.^[123]

• UK approach—Requires the jury to consider the physical elements of the offence. The mens rea can only be considered after the defence of mental impairment has been rejected.^[124]

• ACT approach—Requires the jury to be satisfied that both the physical elements and the specific intention have been proved before considering the defence of mental impairment. Other aspects of mens rea are not considered.^[125]

• SA approach—A qualified acquittal may be given where the objective elements of the offence are satisfied. An objective element is defined as an element that is not a subjective element (for example, voluntariness, intention or knowledge).^[126]

The relevance of ‘mental impairment’ to the jury’s consideration of the fault element of an offence

7.107 A separate but related consideration to the issue of the order of the elements of the offence is whether evidence of the accused’s mental impairment (or the condition underpinning the mental impairment) is relevant to the jury’s consideration of the fault element of an offence. For example, evidence that the accused had a mental illness may be relevant to the jury’s consideration of the fault element of an offence, separate from their consideration of whether that mental illness was a ‘mental impairment’ and had the requisite effect on their behaviour required for the mental impairment defence to be made out.

7.108 This issue has been identified as arising in particular under the Stiles approach to directing the jury on offence elements. Under this approach, the jury must start with the presumption that the accused does not have a mental impairment and must first determine if all the elements of the offence have been proved before considering the defence. This means they can only consider evidence that the accused had a mental impairment after they have determined whether the accused committed the fault element of the offence.

7.109 It is not clear, however, whether any evidence the jury may hear with regard to the accused’s mental condition can be used by them in determining whether the fault element is proved beyond reasonable doubt, or whether this would breach the requirement that they presume the accused is of ‘sound mind’. The Victorian Criminal Charge Book states that it is to be assumed that the requirement that the jury starts from the presumption that an accused is not mentally impaired, also requires them to exclude consideration of any evidence of a mental illness or other impairment in determining whether the accused committed all the elements of the offence.^[127]

7.110 As discussed at [7.101], the jury may be required to employ artificial reasoning because they must presume that the accused is not mentally impaired when they consider whether the prosecution has proved both the physical and fault elements of the offence. At the same time, they may be hearing evidence (relevant to the fault elements) that the accused has a mental condition.

7.111 Under the Hawkins approach, evidence of the accused’s mental condition can be considered by the jury as part of its determination of the fault element, as the jury would have already considered the evidence relating to the defence of mental impairment. The High Court in Hawkins stated that evidence of ‘mental disease’ (under section 16 the Criminal Code Act 1924 (Tas)) is relevant to specific intent where this is not sufficient to amount to a defence of insanity.^[128]

7.112 The uncertainty in this area of law therefore centres on whether evidence of an accused’s mental condition is relevant only to the defence of mental impairment, or whether it should also be relevant to the jury’s consideration of proving the fault element of the offence. This, in turn, is relevant to the issue of the order in which different elements of offences should be put before the jury.

Uncertainty in the law and difficulties created by the current approaches

7.113 Trial judges have drawn attention to the uncertain state of the law on this issue in light of the decisions in Stiles and Hawkins and the consequent difficulty in properly instructing juries.^[129]

7.114 In the Victorian case of DPP v Soliman (‘Soliman’),^[130] this issue arose in the context of whether evidence of the accused’s mental illness could be used to determine whether the fourth element of the offence of rape (awareness that or not giving any thought to whether the complainant is not consenting or might not be consenting), had been proved by the Crown beyond reasonable doubt. The court held that:

If an accused is to be presume[d] to be of sound mind for the purposes of a jury’s consideration of all the elements, then evidence which goes to the issue of mental impairment, whether it be evidence supporting the defence or rebutting it, should only be considered if, and when all the elements of rape, are proven. If this were otherwise, then potentially the very same evidence which would be relied upon to establish, or even rebut the defence of mental impairment, may well result in an accused’s outright acquittal and would interfere with the presumption of sound mind. This would potentially undermine the Stiles approach and undermine the province of the defence of mental impairment itself.^[131]

7.115 Therefore the court held that ‘in assessing whether the Crown has proved beyond reasonable doubt that the accused … was aware that the complainant was not consenting, might not be consenting, or failed to give any thought as to whether or not the complainant was consenting, the jury will not be directed to consider the accused’s mental illness’.^[132] The approach taken in Soliman was as follows:

• If the jury is satisfied beyond reasonable doubt of all the elements of rape, but is not satisfied on the balance of probabilities that the defence of mental impairment has been established, the accused will be criminally responsible for the offence.

• If the jury is satisfied beyond reasonable doubt of all the elements of the offence of rape (absent evidence of mental impairment) and is also satisfied on the balance of probabilities that the accused was mentally impaired at the time of the offence, the accused will be found not guilty because of mental impairment.

• If the jury is not satisfied beyond reasonable doubt of all the elements of the offence of rape, the accused will be acquitted.^[133]

7.116 All of the current approaches present difficulties in their application and none of them present a complete solution to the problem. These difficulties include the following effects:

• The accused’s opportunity for an acquittal is removed where only the physical elements of an offence must be proved before considering the defence of mental impairment (the Hawkins approach).

• The jury is required to engage in artificial reasoning processes when they are not able to consider evidence of the accused’s mental condition in deciding whether the fault element of the offence has been proved beyond reasonable doubt (the Stiles approach).

• The jury is required to engage in complex reasoning by the requirement to separate the physical and fault elements of an offence, which can be confusing in circumstances where the physical element of the offence also incorporates a fault element (the UK and ACT approaches) or splitting issues of intent (the Hawkins approach).

Interaction between specific intent and the ‘nature and quality of the conduct’ in mental impairment cases

7.117 A further issue that can arise when considering the order in which the jury should be directed to approach the elements of an offence, is the interaction between the fault element for an offence and the first limb of the mental impairment defence—that the accused does not know the ‘nature and quality of the conduct’.

7.118 This issue can particularly arise in relation to the ‘specific intent’ aspect of fault elements. Specific intent refers to an intention to cause particular results or consequences by the conduct; for example, for the offence of murder, an accused must have a specific intent to cause a person’s death or really serious injury.^[134]

7.119 Specific intent is distinguished from ‘basic intent’, which relates to the fault element for ‘doing of the act involved in an offence’;^[135] for example, in the offence of sexual penetration of a child under 16 years, an accused must have intended to take part in the act of sexual penetration.

7.120 A basic distinction that has been made between the two types of intent is that specific intent relates to consequences, while basic intent relates to conduct. However, there are tensions in the way in which basic intent has been categorised, for example, in relation to voluntariness, and this distinction is unclear in relation to intoxication.^[136]

7.121 An approach that requires the jury to consider all the elements of the offence first and consider evidence of the accused’s mental condition when considering the fault elements of the offence can create particular problems in certain cases. This can occur, for example, in circumstances where the accused’s mental condition is such that they were incapable of forming the specific intention^[137] for the offence due to the fact that they did not know the nature or quality of what they were doing. If this is the case, it will be difficult for the prosecution to prove that the accused intended to cause the results or consequences of their physical conduct where there is evidence that the accused had a mental condition and that evidence is capable of demonstrating that the accused did not know that nature and quality of their conduct.

7.122 In these cases, if specific intent is not able to proved, an approach that requires the jury to be satisfied that all the elements of the offence have been proved before considering the defence of mental impairment, could result in an outright acquittal of the accused.

The meaning of ‘did not know the nature and quality of the conduct’

7.123 The requirement that the accused not know the nature and quality of the act refers only to the ‘physical character of the act’.^[138]

7.124 An accused who does not know the nature and quality of their conduct would be unable to appreciate ‘the physical thing he [or she] was doing and its consequences’.^[139] The knowledge of the accused relates to the ‘physical character’ of an action as distinct from its moral aspects.^[140] For example, in the case of murder it is ‘the capacity to comprehend the significance of the act of killing and of the acts by means of which it was done’.^[141]

7.125 This implies that the knowledge must relate to more than just the physical act but consists of ‘both a lack of knowledge of the surface features of the act and its harmful consequences’.^[142]

7.126 The Canadian case of Cooper v The Queen contextualised this term, explaining that ‘an accused may be aware of the physical character of his [or her] action (i.e. choking) without necessarily having the capacity to appreciate that, in nature and quality, the act will result in the death of a human being’.^[143] An example of this is provided in the case of R v Porter:^[144]

In the case of murder for example, the accused must have had so little capacity for understanding the nature of life and the destruction of life, that to him or her it was like the breaking of a twig or the destroying of an inanimate object.^[145]

7.127 Another example is where a person is doing an act while not aware of its actual physical features, such as a person who thinks they are hitting a tree with a stick, when they are actually hitting a person.

7.128 In summary, to ‘know the nature and quality of the conduct’ requires that the accused know the physical thing that he or she is doing and the consequences of doing that thing, and is distinct from a moral appreciation of the conduct.

How often do issues of ‘nature and quality of the conduct’ arise in mental impairment cases?

7.129 The proportion of people who rely on the first limb (not knowing the nature and quality of their conduct) of the mental impairment defence is very small and construction of this term has been ‘subject to limited judicial attention in the twentieth century’.^[146] A study in South Australia estimates approximately 87 per cent of all findings of ‘mental incompetence’ are based on the second limb of the test (that the accused did not know that their conduct was wrong) and 2 per cent of all mental impairment defences are based on both the first and the second limbs of the test.^[147]

7.130 This figure is supported by anecdotal information obtained during consultations and through an informal analysis of case data provided to the Commission. The Commission had information about the basis of the finding in 18 cases out of the 159 CMIA cases in the higher courts from 1 July 2000 to 30 June 2012. In none of these cases was the finding made solely on the grounds that the accused did not understand the nature and quality of the conduct.^[148] This is supported by anecdotal information obtained during consultations and suggests that the second limb of the test is far more common as a basis of a finding of not guilty because of mental impairment.

7.131 Given that in practice the first limb of the mental impairment defence is rarely invoked, it has been argued that any discussion about its meaning is ‘largely semantic’.^[149]

7.132 However, despite evidence that suggests that it is infrequent for a case involving a mental impairment defence to rest solely on the first limb of the test, it is important to resolve the issue that has been identified regarding the approach to jury directions where there is a close interaction between the fault element and the first limb of the test regarding the nature and quality of the act.

Views in submissions and consultations

7.133 A number of submissions acknowledged that the issues involved in determining the appropriate approach to directing a jury where the defence of mental impairment is raised are complex, and that the current state of the law is unsatisfactory.^[150]

Reducing complexity for jurors

7.134 One of the main issues raised in submissions in relation to jury directions was about the current complexity of directions provided to juries. For example, Jamie Walvisch argued in his submission that:

Justice is likely to be undermined if jurors are provided with a task that is too complex or divorced from reality. Ideally, any approach that is developed must be capable of being implemented in a readily comprehensible fashion.^[151]

7.135 The Australian Clinical Psychology Association was of the view that jurors often struggle to fully understand directions as to what constitutes evidence, what is hearsay, what aspects of the trial to ignore and what constitutes mental impairment. The Australian Clinical Psychology Association argued that jurors then need to understand how to apply all this information to each element of the offence and that ‘[a] lay jury made up of community members without specialist legal or medical knowledge cannot fully understand complex issues pertaining to mental impairment’.^[152]

7.136 The Criminal Bar Association highlighted the importance of any changes being consistent with the purpose of simplifying jury directions under section 1 of the Jury Directions Act, in particular, section 19 which provides that a trial judge may ‘give to the jury integrated directions in the form of factual questions that address matters that the jury must consider in order to reach a verdict’.^[153]

Suggested approaches to directing the jury in submissions

7.137 Almost all approaches proposed in submissions were based on existing approaches to jury directions, although it was acknowledged that all can result in problems in their practical application.

7.138 Proposed approaches in submissions include adopting the ‘simplicity’ of the original High Court approach,^[154] providing for a flexible approach with instructions varying depending on whether specific intent was an issue in a particular case,^[155] adopting the Stiles approach,^[156] or adopting a modified Hawkins approach.^[157]

The Commission’s conclusion

The need for clarity in the law and consistency of approach

7.139 The Commission has formed the view that due to the uncertainty that exists in this area of law, there is a need for legislative clarification to the way in which the jury is directed on the elements of the offence when the defence of mental impairment is in issue. The complexity of this area of the law makes it even more important that it is clarified and that jury directions are made as clear and simple as possible.

7.140 The Commission has considered the current and other approaches to directing juries and the feedback provided in submissions and consultations.

7.141 The Commission is of the view that there are issues with both of the current approaches (Stiles and Hawkins approaches) to directing a jury where the defence of mental impairment is in issue.

• The Commission does not favour the Stiles approach because it requires juries to employ artificial reasoning in presuming that the accused is of sound mind when they consider the physical and fault elements of the offence, while at the same time having to ignore hearing evidence that the accused has a mental impairment.

• The Commission also does not favour the Hawkins approach as the accused may lose the chance for an outright acquittal if the prosecution need only prove the physical elements of the offence before the jury considers the defence of mental impairment.

7.142 The Commission has also considered the option of not prescribing an approach in legislation and recommending an approach that is left to the judge’s discretion depending on the particular circumstances of the case. Although such an approach allows for flexibility, it may fail to address concerns about providing clarity and reducing complexity in this area of law. Not prescribing an approach would mean that the current practice for a judge to employ either the Hawkins or Stiles approach would remain and therefore is subject to the concerns outlined above.

The proposed approach

7.143 On balance the Commission recommends a new approach that provides a level of prescription with flexible characteristics to ensure that it can be applied to address the different circumstances that can arise in cases where the defence of mental impairment is raised. In making this recommendation, the Commission aims to:

• clarify the law relating to directing the jury where the defence of mental impairment is in issue

• create an approach for both juries and judges that is not unnecessarily complicated and does not require the jury to engage in artificial reasoning

• ensure that, as far as possible, the approach is consistent with the principles that a person with a mental condition should be subject to the same standard as a person of sound mind and have the same opportunity for acquittal

• ensure that, as far as possible, the approach is consistent with the principle that the defence of mental impairment is intended to apply to a person who is not responsible for criminal conduct because of a mental impairment that impaired their ability to understand the nature and quality of their conduct

• protect the community from any further offending by the person due to mental impairment and to provide treatment of the person’s mental condition in a manner that is consistent with the principle of least restriction.

7.144 The Commission considers that a prescriptive approach, with built-in flexibility, will provide clarity and consistency to this area of the law, where there was previous uncertainty and variation in approach.

7.145 The Commission agrees that the jury should not be required to engage in artificial reasoning. The approach should therefore allow the jury to consider evidence relating to the mental condition of the accused in considering the fault element of the offence.

7.146 The Commission also agrees that, as far as possible, a person who raises a defence of mental impairment should be subject to the same standard as a person of sound mind and have the same opportunity for acquittal.

7.147 However, the Commission has concerns about the opportunity for acquittal in cases where an accused may be acquitted because the fault element cannot be established due to evidence of the mental condition of the accused being considered. There are two examples where this may arise:

• A person’s acts are voluntary and they know the physical thing that they are doing but not the nature and quality of that act—for example, a person thinks they are cutting a loaf of bread but they are actually cutting a person’s neck. This person would know they are engaging in the act of cutting, but would not know that they are cutting a person.

• A person’s acts are voluntary, but they do not know the physical thing that they are doing or the nature and quality of that act—for example, a person thinks that they are taking photographs of a person with a camera but they are actually shooting a person.

7.148 In the above circumstances, under an approach that requires proof of the fault element together with the physical elements, a person may be acquitted because the prosecution is unable to prove specific intent. For example, where an accused is charged with murder, if the accused did not know the nature and quality of the act, the prosecution will be unable to prove that they intended to kill a person.

7.149 The Commission’s approach therefore provides an exception to the principle that a person raising the mental impairment defence should have the same opportunity for acquittal as a person of sound mind. This exception, in the Commission’s view, is a sound public policy decision made in the interests of community protection. Under these circumstances, where an accused has engaged in conduct constituting the physical elements of an offence and as a result of mental impairment (within the meaning of the CMIA) does not know the nature and quality of their actions, a person should not be acquitted but be made subject to supervision.

7.150 This exception would only apply to cases where the fault element is unable to be established because there is evidence of the accused’s mental condition that is capable of demonstrating that the accused did not know the nature and quality of their conduct.

7.151 The proposed approach requires the judge to determine whether the exception ought to apply to a particular case prior to directing the jury. A threshold question will assist the judge in determining how to direct the jury. This process will assist in making the directions to the jury as clear and simple as possible. This approach is also consistent with the integrated approach to jury directions under the Jury Directions Act.^[158]

7.152 Where the fault element is unable to be established because evidence of the accused’s mental condition is capable of demonstrating that the accused did not know the nature and quality of their conduct, only the physical element must be proved before considering the defence of mental impairment. Where the fault element is unable to be proved for a different reason, the accused should be entitled to an acquittal.

7.153 In all other cases, all elements of the offence must be proved before the defence of mental impairment is considered.

Recommendation

55 The Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) should be amended to provide the following approach to directing the jury on how to approach the elements of an offence when the defence of mental impairment is in issue:

(a) Threshold question for the judge: is the fault element unable to be established because evidence of the accused’s mental condition is capable of demonstrating that the accused did not know the nature and quality of their conduct?

(b) If the answer to the threshold question is yes, Direction 1 should be given to the jury as follows:

(i) The physical elements of the offence must be proved beyond reasonable doubt.

(ii) If they cannot be so proved, the accused should be acquitted.

(iii) If the physical elements of the offence are proved beyond reasonable doubt, the jury should be directed to consider the defence of mental impairment.

Recommendation cont’d

(c) If the answer to the threshold question is no, Direction 2 should be given to the jury as follows:

(i) All elements of the offence must be proved beyond reasonable doubt.

(ii) The accused is presumed to be of sound mind; however, evidence of a mental condition can be taken into account in considering whether the fault element of the offence is proved beyond reasonable doubt.

(iii) If they cannot be so proved, the accused should be acquitted.

(iv) If all elements of the offence are proved, the jury should be directed to consider the defence of mental impairment.

Implications of the Commission’s recommendations for related defences under the doctrine of automatism

7.154 As discussed in Chapter 4 at [4.81]–[4.82], changes to the definition of mental impairment may have implications for the doctrine of automatism.

7.155 The Commission’s recommendation on the definition of mental impairment may mean that conditions that were considered not to be a ‘disease of the mind’ and previously classified as sane automatism and may now fall within a new statutory definition of mental impairment and be classified as insane automatism. People who have mental conditions within this category who fulfil the requirements of the defence of automatism may be liable for supervision (see Recommendation 24).

7.156 A further implication for automatism may result from recommendations in relation to jury directions where it is unclear whether the evidence supports the defence of mental impairment (insane automatism) or goes to the voluntariness of the act (sane automatism).

7.157 In cases of automatism, the judge must determine which type of automatism to charge the jury about, based on the evidence in the particular case:

• insane automatism: the judge directs the jury about the defence of mental impairment

• sane automatism: the judge directs the jury about the requirements of a voluntary act.

7.158 However, there may be cases where the cause of automatism is unclear. The Victorian Criminal Charge Book does not provide guidance as to how to direct the jury in these circumstances and simply states that the judge must explain the meaning of ‘disease of the mind’ and voluntariness to the jury.

7.159 In cases where the cause of automatism is unclear, the jury must decide whether the accused acted in a state of automatism and if so, whether the state of automatism was caused by a ‘disease of the mind’.

7.160 It is unclear how the Commission’s proposed recommendation will affect directions provided to the jury where the cause of automatism is not determined by the judge. While a statutory definition of mental impairment that includes the operational elements of the defence of mental impairment could be applied in cases of insane automatism, it could not be used in directions to the jury in cases of sane automatism where the defence of mental impairment is irrelevant. In this situation, it is possible that jury directions will become more complex, as the judge will have to direct the jury to consider the meaning of the term ‘mental impairment’ for insane automatism and ‘disease of the mind’ and voluntariness for sane automatism.

7.161 There is also uncertainty about how the jury should be directed on findings in cases where the jury is satisfied that the defence of mental impairment applies but it cannot be excluded as beyond reasonable doubt that the automatism was ‘sane automatism’.^[159] The CMIA expressly provides that where the defence of mental impairment is proved on the balance of probabilities, the jury should be directed to find the accused not guilty because of mental impairment.^[160] However, where the prosecution has failed to prove that the acts of the accused are voluntary, such as in cases of sane automatism, the accused should be acquitted.

7.162 These issues are outside the scope of this review but the operation of the doctrine of automatism will need to be considered in the context of the Commission’s recommendations that propose changes to the defence of mental impairment (see also discussion at [4.81]–[4.82]).

Directions on the consequences of being found not guilty because of mental impairment

7.163 A third issue relating to the jury directions raised by the Commission in its consultation paper was directions on the legal consequences of a finding of not guilty because of mental impairment. The issue focuses on the extent of the trial judge’s obligation to direct the jury on the legal consequences of a finding of not guilty because of mental impairment when the defence has been raised in a trial or a special hearing.

Current law

7.164 In a usual criminal proceeding, the judge does not explain the legal consequences of the findings to the jury. This is consistent with the well-established role of the jury as explained by the Court of Appeal in the case of R v Fitchett:^[161]

The jury task has traditionally been confined to determining whether the prosecution has established its case beyond reasonable doubt and, as they have no part whatever to play in any subsequent sentencing process or disposition of the person before the Court, no mention is ordinarily made of those matters. Not only are such considerations ordinarily regarded as irrelevant to the jury’s task, but their introduction has been seen to carry a significant risk of a miscarriage of justice as a consequence of the jury being diverted by their perception of the likely outcome.^[162]

7.165 However, section 22(2) of the CMIA requires that where a jury has been empanelled and admissible evidence has raised the question of mental impairment, the judge must direct the jury to:

• consider the question

• explain to the jury the findings which may be made and the legal consequences of those findings.^[163]

The purpose of section 22(2) of the CMIA

7.166 The purpose of section 22(2) of the CMIA is to address the concern that a jury may be hesitant to find an accused not guilty because of mental impairment where they do not know the consequences of that decision. A jury may be reluctant to find an accused not guilty because of mental impairment if they perceive it could ‘result in the immediate release of a disturbed and dangerous person when as a practical proposition in most cases that would almost certainly not be the case’.^[164]

7.167 The Court of Appeal has stated that while the purpose of section 22(2) is clear, whether confining an explanation only to the legal consequences of a particular verdict achieves that purpose is ‘doubtful’.^[165]

7.168 There is a statutory duty on the trial judge to provide this explanation, which requires ‘that the judge explain the legal consequences, not the possible or probable outcomes for the person before the Court’.^[166] However, the requirement to limit an explanation to the legal consequences and not any ‘possible or probable’ outcomes can be difficult for a judge who is seeking to reassure the jury that the accused is unlikely to be released. This is because judges must navigate tensions between the purposes of the section in reassuring a jury and the requirement to inform the jury that the legal consequence of a finding of not guilty because of mental impairment may be unconditional release.

7.169 This difficulty has been highlighted by the Court of Appeal which, after reviewing charges in the Trial Division of the Supreme Court of Victoria, found that:

there is some confusion concerning what should or should not be said in this regard and the difficulty which has been encountered in resolving the tension. Judges generally appear to have been concerned to reassure jury members that the verdict would not result in the release of the person into the community.^[167]

7.170 It has therefore been suggested that when a possible outcome is unconditional release, something more may be required to ‘allay the perceived fears of jury members’ than a ‘mere recitation of the legal processes and possible orders’.^[168]

The requirements of directing a jury on the legal consequences of findings

7.171 The specific requirements for judges directing a jury on the legal consequences of a finding of not guilty because of mental impairment are set out in the Victorian Criminal Charge Book.^[169] In directing the jury, the judge:

• must inform the jury about the nature of the decisions that will have to be made following a finding of not guilty because of mental impairment

• must explain to the jury that there is a process to be followed which will focus on the question of the appropriate disposition of the person in the particular circumstances of the case

• is not empowered to prognosticate on or pre-empt the decisions to be made with respect to the accused’s disposition

• must not convey any impression concerning the desirability, punitive features or public safety aspects of arriving at a particular verdict.

7.172 The Victorian Criminal Charge Book also provides an example of directions that were provided to the jury by Justice Osborn in the case of R v Gemmill.^[170] These directions were endorsed by Victorian Court of Appeal in the case of R v Fitchett^[171] and are as follows:

If you find the accused guilty, then there will be a further hearing before me and I will have to determine how he should be sentenced. If you find him not guilty, that is completely not guilty, he will be discharged and be free to walk away from the court. If you find him not guilty because of mental impairment, then there are two options open to me. The first is to declare that he is liable to a supervision order under the Crimes (Mental Impairment and Unfitness to be Tried) Act (1997) and the second is to order that he be released unconditionally. I would have to form a view on evidence as to what was the appropriate course to be followed.

A Supervision order, which is the first option that would be open to me, may commit the person to custody, or release the person on conditions decided by the court and specified in the Order. So you can see that those are the different legal consequences that follow from the different verdicts available to you. And you can see, as I have told you, that a verdict of not guilty because of mental impairment, has quite different consequences from a verdict of not guilty.^[172]

7.173 The Charge Book also stresses the importance of taking the legal consequences of the finding into account in making their determination and that the decision should be based on the evidence in the case.^[173]

Views in submissions and consultations

7.174 The Commission sought views on whether any changes are required to the provision governing the explanation to the jury of a finding of not criminally responsible.

7.175 While there was some support for the example provided in R v Fitchett of Justice Osborn’s directions to the jury on the legal consequences of findings,^[174] the Office of Public Prosecutions was of the view that the CMIA should be amended to clarify the requirements of section 22(2)(a).^[175]

7.176 One submission argued that the current directions to the jury on the legal consequences of findings are too complicated.^[176] This submission proposed that rather than requiring the judge to explain the difference between an unconditional discharge and a supervision order:

it would be better if the jury could simply be instructed that people who are found not guilty because of mental impairment will generally be subject to a supervision order. If the jury choose to question the judge about other possible dispositions, he or she should be free to explain the possibility of an unconditional discharge—but that should not be mandated in all cases.

7.177 The importance of striking a balance between advising the jury that the accused will not be ‘set free’ and ensuring that the judge does not provide the jury with any indication of the outcome of the case was emphasised in one submission which proposed that:

[b]ecause this issue is pertinent to cases in which mental illness is an issue and it can affect a verdict, a trial judge should direct and explain to the jury about the legal consequences of the ‘not guilty because of mental impairment’ verdict, clearly specifying that the offender would be detained in a secure psychiatric facility for treatment purposes, or released unconditionally if there is no mental health issue at the time of the disposition (which rarely occurs).^[177]

7.178 Victoria Legal Aid and the Australian Clinical Psychology Association were also of the view that the possibility of discharge may influence jury deliberations. The Australian Clinical Psychology Association stated that an explanation of the legal consequences of the findings to the jury is important because the ‘lay public will not fully comprehend that the finding of not guilty because of mental impairment does not equate with innocence or an acquittal’.^[178] Victoria Legal Aid proposed that in directing the jury on the legal consequences of findings:

it would be appropriate to inform the jury that a finding of not guilty by reason of mental impairment would not be the end of the matter, and that following that finding the court carefully considers issues relating to risk and appropriate treatment.^[179]

7.179 One of the participants in a meeting with the judges of the County Court of Victoria acknowledged that juries find it ‘reassuring’ to be directed on the legal consequences of the findings.^[180]

The Commission’s conclusion

7.180 The Commission acknowledges that there is a tension between the purpose of section 22(2) in providing reassurance to a jury about the protection of the community from what they may perceive as a dangerous accused found not criminally responsible, and the requirement to inform the jury of the legal consequences of such a finding, which include a possible unconditional release.

7.181 In Chapter 10 the Commission proposes the addition of a requirement that the court, in deciding whether to unconditionally release a person or declare a person liable to supervision, must have regard to whether the person poses an unacceptable risk of causing physical or psychological harm to another person or other people generally (Recommendation 88).

7.182 The Commission is therefore of the view that in directing the jury on the legal consequences of a finding of not criminally responsible, the judge after outlining the legal consequences of such a finding as an indefinite supervision order or unconditional release, should inform the jury, in general terms, of the factors to be considered in making a person liable to supervision.

Recommendation

56 The requirements of a judge in directing a jury on the legal consequences of a mental impairment finding should be specified in section 22(2)(a) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) and provide that in explaining the legal consequences of a finding of not criminally responsible because of mental impairment, the judge:

(a) must explain that the person may be made subject to an indefinite supervision order or unconditionally released

(b) must explain that there is a process to be followed by the judge in deciding whether an accused is made liable to supervision or unconditionally released which includes the judge considering evidence on the risk to community safety and appropriate treatment in the particular case, and

(c) must not otherwise indicate the probable or likely outcome in relation to the legal consequence of the finding, or convey any impression concerning the desirability, punitive features or public safety aspects of arriving at a particular verdict.

Cost implications of changes to jury directions

7.183 The main cost implication of the Commission’s recommendations to change jury directions under the three aspects of the CMIA is the resources required to change

the Victorian Criminal Charge Book and any associated judicial education that may be required. These costs will largely be incurred by the Judicial College of Victoria, which is responsible for the content and updating of the publication.

1. The Commission has recommended in Chapter 9 of this report replacing the finding of ‘not guilty because of mental impairment’ with the accused’s ‘conduct is proved but not criminally responsible because of mental impairment’: see Recommendation 69.

   ↑

2. The Commission has recommended in Chapter 9 of this report replacing the finding in a special hearing of ‘committed the offence charged’ with the accused’s ‘conduct is proved on the evidence available’: see Recommendation 68.

   ↑

3. Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) s 21(4)(a).

   ↑

4. Ibid s 21(4)(b).

   ↑

5. Ibid s 8(2).

   ↑

6. Victorian Parliament Law Reform Committee, Inquiry into Access to and Interaction with the Justice System by People with an Intellectual Disability and their Families and Carers (2013) 228, Recommendation 28.

   ↑

7. Ibid 227.

   ↑

8. Ibid.

   ↑

9. Home Office and Department of Health and Social Security, Report of the Committee on Mentally Abnormal Offenders, Cmnd 6244 (1975) [10.22] (‘Butler Report’).

   ↑

10. Lord Justice Auld, Review of the Criminal Courts of England and Wales: A Report (2001) 217.

    ↑

11. In 2004, the Criminal Procedure (Insanity) Act 1964 (UK) c 84 was amended so that section 4(5) now states that the court determines the question of fitness to be tried, without a jury.

    ↑

12. Submissions 21 (Criminal Bar Association); 19 (Forensicare); 12 (Progressive Law Network); 11 (Jamie Walvisch); 8 (Office of Public Prosecutions); 18 (Victoria Legal Aid). Consultations 24 (County Court of Victoria—judges); 11 (Melbourne Magistrates’ Court); 16 (Shepparton Magistrates’ Court); 3 (Villamanta Disability Rights Legal Service). Concerns were expressed by some individuals, including a Supreme Court judge. The Progressive Law Network suggested that a judge should be required to seek the agreement of two registered medical practitioners.

    ↑

13. Submission 19 (Forensicare). Consultations 21 (Consultant psychiatrists, Forensicare); 23 (Supreme Court of Victoria—judges); 24 (County Court of Victoria—judges).

    ↑

14. Consultation 16 (Shepparton Magistrates’ Court).

    ↑

15. Consultations 24 (County Court of Victoria—judges); 3 (Villamanta Disability Rights Legal Service).

    ↑

16. Submissions 18 (Victoria Legal Aid); 21 (Criminal Bar Association).

    ↑

17. Submissions 12 (Progressive Law Network); 18 (Victoria Legal Aid); 19 (Forensicare).

    ↑

18. Jane Lee, ‘Imprisonment of Intellectually Disabled Man “Embarrassing”’, The Age (Melbourne), 23 February 2013, 5.

    ↑

19. Consultation 3 (Villamanta Disability Rights Legal Service).

    ↑

20. Submission 11 (Jamie Walvisch).

    ↑

21. Submission 8 (Office of Public Prosecutions). Consultations 24 (County Court of Victoria—judges); 41 (Supreme Court of Victoria—judge).

    ↑

22. Consultation 24 (County Court of Victoria—judges).

    ↑

23. Consultation 41 (Supreme Court of Victoria—judge).

    ↑

24. Ibid.

    ↑

25. Submissions 11 (Jamie Walvisch); 18 (Victoria Legal Aid).

    ↑

26. Submission 19 (Forensicare).

    ↑

27. Submission 6 (Associate Professor Andrew Carroll).

    ↑

28. Consultation 23 (Supreme Court of Victoria—judges).

    ↑

29. Advisory committee (meeting 1).

    ↑

30. Advisory committee (meeting 2a).

    ↑

31. Ibid.

    ↑

32. In Australia, courts in Tasmania and the Northern Territory have the power to dispense with an investigation into unfitness to stand trial and record that the accused is unfit if both the prosecution and defence agree. In New South Wales, Queensland, Western Australia and South Australia, a trial judge or a specialist division of the court determines the question of unfitness to stand trial. In South Australia this process can be dispensed with if the prosecution and the defence agree. See Criminal Justice (Mental Impairment) Act 1999 (Tas) s 19; Criminal Code Act (NT) s 43T(1); Mental Health (Forensic Provisions) Act 1990 (NSW) s 11; Mental Health Act 2000 (Qld) s 270; Criminal Law (Mentally Impaired Accused) Act 1996 (WA) s 12; Criminal Law Consolidation Act 1935 (SA) ss 269M, 269N.

    ↑

33. Crimes Act 1958 (Vic) s 354. Any person could apply to bring another person before a grand jury to determine whether a person charged with an indictable offence should be put on trial (if a magistrate did not commit the accused for trial following a committal hearing, or if the Director of Public Prosecutions did not present the accused for trial following a committal).

    ↑

34. Department of Justice, Criminal Procedure Act 2009 Legislative Guide (2010) 234; Elise Histed, ‘The Introduction and Use of the Grand Jury in Victoria’ (1987) 8(2) Journal of Legal History 167.

    ↑

35. Criminal Procedure Act 2009 (Vic) s 253; Department of Justice, Criminal Procedure Act 2009 Legislative Guide (2010) 168.

    ↑

36. These circumstances include when they have been lawfully convicted or acquitted of the offence charged in the indictment, when the accused denies that he or she is the person named on the indictment, or when they have the benefit of a pardon in respect of the offence charged. See Criminal Procedure Act 2009 (Vic) ss 218, 220.

    ↑

37. Judicial College of Victoria, Victorian Criminal Proceedings Manual (3 August 2009) <http://www.judicialcollege.vic.edu.au/eManuals/VCPM/index.htm#27654.htm>, citing R v Worland [1964] VR 607; R v Gamble; Ex parte Cleary [1947] VLR 491; R v Coughlan (1976) 63 Cr App R 33; R v Clarkson [1987] VR 962.

    ↑

38. Ibid, citing Winsor v The Queen (1866) LR 1 QB 289; R v Snow (1915) 21 ALR 382.

    ↑

39. Butler Report, above n 9, [10.22]. The phrase translates to ‘strong and hard suffering’ and was a practice carried out on people who were found by a jury to be ‘mute by malice’, that is, they had failed to enter a plea out of choice rather than a genuine inability to enter a plea (‘mute by visitation of God’). The practice involved a person being starved and gradually crushed under increasing weights, in attempt to force them to plead, or until they died.

    ↑

40. Department of Justice, above n 34, 234.

    ↑

41. Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) s 14A(a).

    ↑

42. See Recommendations 15, 17 and 18.

    ↑

43. See Recommendation 16.

    ↑

44. See Criminal Procedure Act 2009 (Vic) s 369.

    ↑

45. Victorian Law Reform Commission, Defences to Homicide, Final Report No 6 (2004) Recommendation 43. See the second reading speech for the Crimes (Homicide) Bill 2005 (Vic): Victoria, Parliamentary Debates, Legislative Assembly, 6 October 2005, 1353 (Rob Hulls, Attorney-General).

    ↑

46. Consultations 1 (Consumer Advisory Group (CAG), Thomas Embling Hospital); 23 (Supreme Court of Victoria—judges); 41 (Supreme Court of Victoria—judge).

    ↑

47. Submissions 11 (Jamie Walvisch); 18 (Victoria Legal Aid); 8 (Office of Public Prosecutions).

    ↑

48. Submission 4 (The Australian Clinical Psychology Association).

    ↑

49. Consultation 23 (Supreme Court of Victoria—judges).

    ↑

50. Kosian v The Queen [2013] VSCA 357 (6 December 2013) [72], [76]. See also R v Oye [2014] 1 Cr App R 11 where the United Kingdom’s Court of Criminal Appeal substituted the jury’s verdict of guilty with a verdict of not guilty by reason of insanity. It could not see a safe and rational basis for departing from the unchallenged psychiatric evidence and the Crown’s acceptance of the psychiatric evidence.

    ↑

51. Victorian Law Reform Commission, Jury Directions, Consultation Paper No 6 (2008) 20.

    ↑

52. Brown v The Queen (1986) 160 CLR 171, 197.

    ↑

53. Ibid 201.

    ↑

54. Kingswell v The Queen (1985) 159 CLR 264, 301 (Deane J).

    ↑

55. John Champion SC (DPP), ‘Launch of Prosecuting Mental Impairment Matters’ (Speech delivered at the launch of the Prosecuting Mental Impairment Matters publication, Melbourne, Wednesday 28 November 2012).

    ↑

56. Victorian Law Reform Commission, above n 45, 230.

    ↑

57. Ibid 229–31.

    ↑

58. Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) s 5(1).

    ↑

59. The consultation paper referred to this type of hearing as a ‘consent’ mental impairment hearing based on the terminology used by stakeholders consulted in preliminary consultations. The Commission now thinks that the process is better characterised as a ‘judge-alone’ process rather than a ‘consent’ process. The Court of Appeal also refers to the process as a ‘judge-alone’ process in the decision of SM v The Queen [2013] VSCA 342 (28 November 2013).

    ↑

60. VSCA 342 (28 November 2013).

    ↑

61. Ibid [84]–[91] (Weinberg JA); [164], [168]–[169] (Tate JA).

    ↑

62. Victorian Law Reform Commission, Review of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, Consultation Paper No 17 (2013) 90.

    ↑

63. DPP v Watson [2013] VSC 245 (7 May 2013) [3].

    ↑

64. For: submissions 8 (Office of Public Prosecutions); 18 (Victoria Legal Aid); 21 (Criminal Bar Association); 11 (Jamie Walvisch). Consultation 41 (Supreme Court of Victoria—judge). Against: submissions 10 (Victorian Equal Opportunity and Human Rights Commission); 19 (Forensicare).

    ↑

65. Submission 18 (Victoria Legal Aid).

    ↑

66. Submissions 11 (Jamie Walvisch); 21 (Criminal Bar Association).

    ↑

67. Submission 21 (Criminal Bar Association).

    ↑

68. Submission 11 (Jamie Walvisch).

    ↑

69. Submissions 10 (Victorian Equal Opportunity and Human Rights Commission); 19 (Forensicare). Consultation 23 (Supreme Court of Victoria—judges).

    ↑

70. Charter of Human Rights and Responsibilities Act 2006 (Vic) s 8(3).

    ↑

71. Submission 10 (Victorian Equal Opportunity and Human Rights Commission).

    ↑

72. [2013] VSC 245 (7 May 2013).

    ↑

73. Ibid [9].

    ↑

74. Juries Act 2000 (Vic) s 52(2).

    ↑

75. Alex Avery, Philip Clarke and Stuart Kinner (The University of Melbourne), Modelling the Economic Costs of Implementing a Magistrate-based Determination of Fitness to Stand Trial and Mental Impairment: Final Report (commissioned by the Victorian Law Reform Commission) (2014) [unpublished] 17. This was calculated using Australian Bureau of Statistics data that the average daily earnings for a person in Victoria in May 2013 was $221.04.

    ↑

76. Additional jurors are often empanelled for longer trials.

    ↑

77. The JCO advised the Commission that it usually seeks information from the court on whether there will be challenges in the particular hearing and determines the size of the panel on the basis of that advice.

    ↑

78. Calculated using the figure of $46 per prospective juror and a panel of between 20 and 27 prospective jurors.

    ↑

79. Calculated using the figure of $40 per juror and a jury of 12 jurors.

    ↑

80. This estimation is based on data provided by the Victorian Institute of Forensic Mental Health (Forensicare) on report requests by the Office of Public Prosecutions (OPP) in 2012–13, indicating that there were 27 report requests on issues of unfitness to stand trial and the defence of mental impairment and 18 report requests on issues of unfitness to stand trial alone. This estimation assumes that each case would have proceeded and that each report request was for a unique case. However, it may not represent all the requests for reports made over the relevant period. Prior to the beginning of 2012 when funding was secured for such reports from the Department of Justice, Forensicare’s practice was to cap the number of reports completed in response to such requests due to a lack of specific funding for such work.

    ↑

81. Calculated using the minimum cost for a panel of 20 prospective jurors multiplied by 45 cases where the OPP requested a report from Forensicare on the issue of unfitness.

    ↑

82. Calculated using the minimum cost for a panel of 27 prospective jurors multiplied by 45 cases where the OPP requested a report from Forensicare on the issue of unfitness.

    ↑

83. Calculated using the figure of $46 per prospective juror and a panel of 30 prospective jurors.

    ↑

84. Calculated using the figure of $40 per juror and a jury of 12 jurors.

    ↑

85. In 12 cases, the finding was made by a jury and in six cases there was insufficient information to determine whether the finding was made by a judge under the judge-alone provisions in section 21(4) of the CMIA.

    ↑

86. Data provided by Forensicare on report requests by the OPP in 2012–13. Prior to the beginning of 2012 when funding was secured for such reports from the Department of Justice, Forensicare’s practice was to cap the number of reports completed in response to such requests due to a lack of specific funding for such work.

    ↑

87. Calculated using the figure at [7.65] that it costs $1,380 to empanel a jury for the first day of a criminal trial ($46 per prospective juror and a panel of 30 prospective jurors).

    ↑

88. A one-day trial has been assumed as, if the matter were one that could have been determined by judge alone, the prosecution and defence are likely to be in agreement as to the proposed evidence and so the trial is unlikely to take more than one day.

    ↑

89. Calculated using the figure of $46 per prospective juror and a panel of 30 prospective jurors.

    ↑

90. Calculated using the figure of $40 per juror and a jury of 12 jurors.

    ↑

91. Jury Directions Act 2013 (Vic) s 1.

    ↑

92. A Bill amending the Jury Directions Act 2013 (Vic) that aimed to further simplify and clarify the law on jury directions was introduced into Parliament this year but was defeated: Jury Directions Amendment Bill 2013 (Vic).

    ↑

93. Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) s 16(3).

    ↑

94. R v Langley (2008) VR 90.

    ↑

95. Subramaniam v The Queen (2004) 79 ALJR 116, 124.

    ↑

96. Submission 11 (Jamie Walvisch). Consultations 12 (Judicial College of Victoria); 24 (County Court of Victoria—judges).

    ↑

97. Consultation 24 (County Court of Victoria—judges).

    ↑

98. Submissions 11 (Jamie Walvisch); 8 (Office of Public Prosecutions). Consultation 24 (County Court of Victoria—judges).

    ↑

99. Submission 11 (Jamie Walvisch).

    ↑

100. Ian Freckelton, ‘Mandatory Procedures and Fairness in Mental Impairment Hearings’ (2009) 16(2) Psychiatry, Psychology and Law 191, 195.

     ↑

101. Victorian Law Reform Commission, Jury Directions, Final Report No 17 (2009) 8.

     ↑

102. Jury Directions Act 2013 (Vic) s 5(4).

     ↑

103. Ibid s 9.

     ↑

104. The exception is strict liability offences where the physical element has no applicable fault element.

     ↑

105. Department of Justice, Review of Sexual Offences: Consultation Paper (September 2013) [2.6.1]–[2.6.2]. The review identifies and analyses the main issues with sexual offence laws.

     ↑

106. Ibid [2.6.1].

     ↑

107. R v Porter (1933) 55 CLR 182; Stapleton v R (1952) 86 CLR 358; Sodeman v The King (1936) 55 CLR 192.

     ↑

108. Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) s 20(1).

     ↑

109. Ibid s 3 (definition of ‘conduct’).

     ↑

110. Ibid ss 20(1)(a)–(b), 20(2)(b).

     ↑

111. Ibid s 20(2).

     ↑

112. Ibid s 22(2)(b).

     ↑

113. Judicial College of Victoria, Victorian Criminal Charge Book (23 November 2011) [8.8.1] <http://www.judicialcollege.vic.edu.au/eManuals/CCB/index.htm#19084.htm>.

     ↑

114. (1990) 50 A Crim R 13.

     ↑

115. (1994) 179 CLR 500.

     ↑

116. R v Stiles (1990) 50 A Crim R 13, 22.

     ↑

117. Ibid.

     ↑

118. Hawkins v The Queen (1994) 179 CLR 500, 517.

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119. Judicial College of Victoria, above n 113, [8.8.1].

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120. Ibid.

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121. See Submission 11 (Jamie Walvisch) for a more detailed discussion of the approaches to jury directions where the defence of mental impairment is raised.

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122. R v Porter (1933) 55 CLR 182; R v Sodeman (1936) 55 CLR 192; R v Stapleton (1952) 86 CLR 358.

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123. R v Pantelic (1973) 21 FLR 253.

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124. See R v Antoine [2001] 1 AC 340; Attorney-General’s Reference (No 3 of 1998) [2000] QB 401.

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125. R v Ardler (2004) 144 A Crim R 552.

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126. See the Criminal Law Consolidation Act 1935 (SA) ss 269C–G, 269A (definition of ‘objective element’).

     ↑

127. Judicial College of Victoria, above n 113, [8.8.1].

     ↑

128. Hawkins v The Queen (1994) 179 CLR 500, 517.

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129. See, eg, Transcript of Proceedings, R v Sutherland (County Court of Victoria, CR-10-00016, Judge Punshon, 18 October 2012) 118.

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130. [2012] VCC 658 (1 May 2012).

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131. Ibid [41].

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132. Ibid [61].

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133. Ibid [63]–[65].

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134. Judicial College of Victoria, above n 113, [7.2.1.1]

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135. He Kaw Teh v The Queen (1985) 157 CLR 523, 569–70.

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136. Bernadette McSherry and Bronwyn Naylor, Australian Criminal Laws: Critical Perspectives (Oxford University Press, 2004) 70–2. See also 502–52.

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137. While it is possible that this issue could arise in relation to basic intent, it is more likely for this to be an issue in relation to the proof of an accused’s specific intention to cause a particular consequence or result.

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138. R v Codere (1917) 12 Cr App R 21.

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139. R v Porter (1933) 55 CLR 182, 189.

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140. R v Codere (1917) 12 Cr App R 21, 27. See also Willgoss v The Queen (1960) 105 CLR 295, 301 where the court provided a narrow interpretation of the term ‘knowledge’ and rejected an argument that ‘knowledge’ requires a moral appreciation of the conduct.

     ↑

141. Sodeman v The King (1936) 55 CLR 192, 215.

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142. Steven Yannoulidis, Mental State Defences in Criminal Law (Ashgate, 2012) 15.

     ↑

143. [1980] 13 CR (3d) 97, [58].

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144. (1933) 55 CLR 182.

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145. Ibid 188.

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146. Sentencing Advisory Council (South Australia), A Discussion Paper Considering the Operation of Part 8A of the Criminal Law Consolidation Act 1935 (SA) (2013) 22. Section 269C of the Criminal Law Consolidation Act 1935 (SA) also contains a volitional element to the defence. Nine per cent of cases relied on both the volitional element of the test and that the accused did not know the nature and quality of their conduct: Appendix B, Table 6.

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147. Ibid Appendix B, Table 6.

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148. This information was taken from 65 judgments to which the Commission had access (40.9% of the 159 cases). There were 41 cases that indicated a finding of not guilty because of mental impairment. There was no information on the basis of the finding in 11 cases. In 12 cases, the basis of the finding was not specified, as it was a jury finding. In 18 cases, there was information on the basis of the finding as it was made by a judge under the judge-alone provisions in section 21(4) of the CMIA. In 16 of these 18 cases, the finding was made on the basis of the second limb of the test and in the remaining two cases the finding was made on both limbs.

     ↑

149. McSherry and Naylor, above n 136, 536.

     ↑

150. Submissions 21 (Criminal Bar Association); 18 (Victoria Legal Aid); 11 (Jamie Walvisch). Consultations 23 (Supreme Court of Victoria—judges); 24 (County Court of Victoria—judges).

     ↑

151. Submission 11 (Jamie Walvisch).

     ↑

152. Submission 4 (The Australian Clinical Psychology Association).

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153. Submission 21 (Criminal Bar Association).

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154. Submission 11 (Jamie Walvisch).

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155. Submission 21 (Criminal Bar Association) recommending the Stiles approach be adopted when specific intent is not an issue and the Hawkins approach be adopted when specific intent is an issue.

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156. Submission 8 (Office of Public Prosecutions). The OPP’s submission endorsed the approach in DPP v Soliman [2012] VCC 658 (1 May 2012), which endorsed the Stiles approach.

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157. Submission 18 (Victoria Legal Aid). This submission proposed the jury first consider the physical elements of the offence, then the defence of mental impairment as outlined in the Hawkins approach, but then proposed that the ‘mental element’ or fault element of the offence be considered.

     ↑

158. Jury Directions Act 2013 (Vic) s 19.

     ↑

159. Judicial College of Victoria, above n 113, [8.2.1].

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160. Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) s 20(2).

     ↑

161. (2009) 23 VR 91.

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162. Ibid 100.

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163. Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) s 22(2).

     ↑

164. R v Fitchett (2009) 23 VR 91, 102.

     ↑

165. Ibid.

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166. Ibid.

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167. Ibid 103.

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168. Ibid.

     ↑

169. Judicial College of Victoria, above n 113, [8.8.1].

     ↑

170. [2004] VSC 30 (23 January 2004).

     ↑

171. (2009) 23 VR 91.

     ↑

172. Ibid 104.

     ↑

173. Judicial College of Victoria, above n 113, [8.8.2].

     ↑

174. Consultation 24 (County Court of Victoria—judges).

     ↑

175. Submission 8 (Office of Public Prosecutions).

     ↑

176. Submission 11 (Jamie Walvisch).

     ↑

177. Submission 7 (Meron Wondemaghen).

     ↑

178. Submission 4 (The Australian Clinical Psychology Association).

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179. Submission 18 (Victoria Legal Aid).

     ↑

180. Consultation 24 (County Court of Victoria—judges).

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