Review of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997: Consultation Paper

Accused person

Person charged with a criminal offence.

Adult Parole Board

An independent statutory body that makes decisions regarding the granting and cancelling of parole and monitoring offenders on parole.

AIHW

Australian Institute of Health and Welfare.

ARC List

Assessment and Referral Court List.

Balance of probabilities

The standard of proof in civil proceedings. Often described as ‘more likely than not’ or ‘more probable than not’. Refers to a standard of proof or degree of certainty required to prove something. This is a lesser standard of proof than ‘beyond reasonable doubt’.

Beyond reasonable doubt

The standard of proof in criminal proceedings.

CISP

Courts Integrated Services Program.

CMIA

Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic).

Cognitive impairment

A term used in this paper to refer to the impact of any of a range of disabilities that may limit a person’s ability to think. These include intellectual disability, acquired brain injury, mental illness, autism spectrum disorder and dementia.

Committal

A preliminary examination by the Magistrates’ Court to determine whether the case against the accused person is sufficient to warrant the person being directed to stand trial before the County Court or the Supreme Court.

Common law

Law that derives its authority from decisions of the courts rather than from legislation.

Custodial supervision order

A supervision order that requires the detention of the person in a mental health service, residential institution or residential treatment facility.

Defence of mental impairment

A defence in Victoria defined under the CMIA, replacing the common law defence of insanity. It requires that the accused person was suffering from a mental impairment at the time of the commission of the alleged offence, and that the mental impairment affected the accused person so that they either did not understand the nature and quality of their conduct, or did not know their conduct was wrong.

Director of Public Prosecutions

The Director of Public Prosecutions makes decisions about whether to prosecute serious criminal matters in the Supreme Court and County Court. The Director of Public Prosecutions is independent of government.

Disability Forensic Assessment and Treatment Service

A disability forensic service that delivers treatment, support and residential services for people with a disability who display high-risk anti-social behaviour and are involved, or at risk of being involved, in the criminal justice system.

Discharge

To release an accused person, usually because of an acquittal. A court can discharge a person with or without conditions.

Fitness to plead

Refers to the doctrine that existed before the CMIA which exempted an accused person from the usual criminal process because at the time of the trial they were unable to enter a plea or understand the nature of the proceedings.

Forensic

Relating to or used in courts of law.

Forensic Leave Panel

An independent statutory body with jurisdiction to consider applications for certain types of leave for forensic patients and forensic residents.

Forensic patients

People subject to a supervision order or on remand pending a determination under the CMIA, who are in detention at a mental health service.

Forensic residents

People subject to a supervision order or on remand pending a determination under the CMIA, who are in a residential institution or residential treatment facility.

Governor in Council

A body that comprises the Governor as Chair and members of the Executive Council (usually the Premier and Ministers). It implements aspects of government business, including appointing statutory officers and judges and proclaiming legislation.

Indictable offences

Serious crimes which attract higher maximum penalties, usually triable before a judge and a jury.

Indictable offences triable summarily

Indictable offences which can be heard before a magistrate.

Intellectual disability

An intellectual disability is a type of cognitive impairment. The Disability Act 2006 (Vic) defines a person with an intellectual disability as a person with both significant sub-average general intellectual functioning and significant deficits in adaptive behaviours, which become apparent before the age of 18 years.

Leave

Leave allows a forensic patient or forensic resident to be absent from the mental health service, residential institution or residential treatment facility for a duration of time, subject to conditions.

MACNI

Multiple and Complex Needs Initiative.

Major review

A review of a person’s supervision order at least three months before the end of the order’s nominal term, or at least every five years after that for the duration of the order. Its purpose is to determine whether the court can release the person subject to the supervision order.

Mental condition

In this paper, a mental condition means any condition that results in a person’s mental processes becoming disordered or impaired.

Mental illness

Mental illness is defined in the Mental Health Act 1986 (Vic) as ‘a medical condition that is characterised by a significant disturbance of thought, mood, perception or memory’. It can include conditions such as depression, schizophrenic disorders, bipolar affective disorder, obsessive-compulsive disorder and post traumatic stress disorder.

Mental element

The state of mind necessary to establish a particular crime, also referred to as mens rea. The mental element varies depending on the nature of the crime, but may include intention (for example, in the case of murder the intention to kill or cause serious bodily harm), recklessness, negligence, dishonesty or malice.

MHCLS

Mental Health Court Liaison Service.

Nominal term

A period of time specified in the CMIA which triggers a major review. In the case of homicide, for example, the nominal term is 25 years.

Non-custodial supervision order

A supervision order that does not require the detention of the person in a mental health service, residential institution or residential treatment facility, but requires the person to comply with certain conditions and be subject to supervision in the community.

Office of the Public Advocate

An independent statutory body that works to protect and promote the interests, rights and dignity of people with a disability.

Office of Public Prosecutions

The Office of Public Prosecutions is the independent statutory authority that institutes, prepares and conducts criminal prosecutions on behalf of the Director of Public Prosecutions.

Order

A direction by a court or tribunal that is final and binding unless overturned on appeal.

Plea

An accused person’s answer to a charge of an offence, which usually takes the form of ‘guilty’ or ‘not guilty’.

Physical element

The physical act necessary to establish a particular crime, also referred to as actus reus. The physical element varies depending on the nature of the crime, but may include the conduct (for example, rape requires the sexual penetration of a person), circumstance (for example, rape requires the absence of consent) or cause (for example, murder causes the death of a person) to establish the crime.

Police prosecutor

A member of Victoria Police who prosecutes state summary offences in the Magistrates’ Court.

Residential institution

A place where a person with an intellectual disability may be admitted.

Residential treatment facility

A place where a person with an intellectual disability receives compulsory treatment.

Second reading speech

The speech given by a member of parliament when a bill is introduced in parliament and considered for debate. A second reading speech outlines the reasons for the bill’s introduction.

Section 47 certificate

A certificate under section 47 of the CMIA confirming the availability of the facilities or services necessary for the custody of or provision of services to a person.

Special hearing

A hearing before a jury, after the accused person has been found unfit to stand trial, to determine whether they are not guilty of the offence, not guilty because of mental impairment or committed the offence charged.

Summary jurisdiction

The power or right a court has to hear and determine summary offences. The Magistrates’ Court is a court of summary jurisdiction.

Summary offences

Minor offences heard by a magistrate without a jury. Police prosecutors generally conduct the prosecution of state summary offences.

Supervision order

An order a court can make under the CMIA if a court finds an accused person is one of the following:

unfit to stand trial but has committed the offence charged

unfit to stand trial and not guilty because of mental impairment

not guilty because of mental impairment.

The order requires the person to be subject to supervision. It can be custodial or non-custodial.

Test

In this paper, the legal requirements to establish unfitness to stand trial or the defence of mental impairment.

Thomas Embling Hospital

Thomas Embling Hospital is a 116-bed secure forensic mental health hospital managed by the Victorian Institute of Forensic Mental Health. The hospital provides advanced clinical treatment and programs to patients from the criminal justice system (either transferred from the prison system or ordered by the courts to be detained for psychiatric assessment, care or treatment).

Unconditional release

Release of a person without conditions.

Unfitness to stand trial

Refers to the doctrine under the CMIA which exempts an accused person from the usual criminal process because at the time of the trial they are unable to enter a plea, understand the nature of the proceedings or participate in the trial process.

Victoria Legal Aid

An organisation that provides legal advice to and representation for accused persons who cannot otherwise afford legal assistance.

Victorian Civil and Administrative Tribunal (VCAT)

A decision-making body similar in some respects to a court. VCAT decisions can be appealed with leave to the Supreme Court of Victoria (on a point of law).

Victorian Institute of Forensic Mental Health (Forensicare)

Statutory authority with the responsibility for providing adult forensic mental health services in Victoria.

Victorian Parliament Law Reform Committee (Law Reform Committee)

A committee of government and non-government members of the Victorian Parliament, established to consider issues of law reform referred to it by the Victorian Government.