Review of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997: Consultation Paper
Questions
Chapter 4—Unfitness to stand trial
Threshold definition
1 Should the test for determining unfitness to stand trial include a threshold definition of the mental condition the accused person would have to satisfy to be found unfit to stand trial?
Decision-making capacity or effective participation
2 Does the current test for unfitness to stand trial, based on the Pritchard or Presser criteria, continue to be a suitable basis for determining unfitness to stand trial?
3 Should the test for unfitness to stand trial include a consideration of the accused person’s decision-making capacity?
4 If the test for unfitness to stand trial is changed to include a consideration of the accused person’s decision-making capacity, what criteria, if any, should supplement this test?
5 If the test for unfitness to stand trial is changed to include a consideration of the accused person’s decision-making capacity, should the test also require that the lack of any decision-making capacity be due to a mental (or physical) condition?
6 If not decision-making capacity, should the test for unfitness to stand trial include a consideration of the accused person’s effective participation?
Rationality
7 Should the accused person’s capacity to be rational be taken into account in the test for unfitness to stand trial?
If yes, is this best achieved:
(d) by requiring that each of the Presser criteria, where relevant, be exercised rationally
(e) by requiring that the accused person’s decision-making capacity or effective participation be exercised rationally, if a new test based on either of these criteria is recommended, or
(f) in some other way?
Issues specific to the Presser criteria
8 If the unfitness to stand trial test remains the same, are changes required to the Presser criteria?
9 Should the criteria for unfitness to stand trial exclude the situation where an accused person is unable to understand the full trial process but is able to understand the nature of the charge, enter a plea and meaningfully give instructions to their legal adviser and the accused person wishes to plead guilty to the charge?
10 Do any procedural, ethical or other issues arise in creating this exclusion from the unfitness to stand trial test?
11 Are changes required to improve the level of support currently provided in court in trials for people who may be unfit to stand trial?
12 What would be the cost implications of any increase in support measures?
13 Should the availability of support measures be taken into consideration when determining unfitness to stand trial?
14 What changes can be made, if any, to enhance the ability of experts to assess an accused person’s unfitness to stand trial?
Requirement to ‘plead’ in a committal proceeding
15 Is there a need for a uniform procedure in committal proceedings where a question of unfitness to stand trial is raised?
16 What procedure should apply where a question of an accused person’s unfitness to stand trial is raised in a committal proceeding?
The role of lawyers in the process for determining unfitness to stand trial
17 What ethical issues do lawyers face in the process for determining unfitness to stand trial?
18 What is the best way of addressing these ethical issues from a legislative or policy perspective?
The role of experts in the process for determining unfitness to stand trial
19 Are there any issues that arise in relation to the role of experts and expert reports in the process of determining unfitness to stand trial?
Jury involvement in all investigations of unfitness to stand trial
20 Should the CMIA provide for a procedure where unfitness to stand trial is determined by a judge instead of a jury? If yes:
(a) should the process apply only where the prosecution and the defence agree that the accused person is unfit to stand trial or should a jury not be required in other circumstances?
(b) what safeguards, if any, should be included in the process?
A ‘consent mental impairment’ hearing following a finding of unfitness to stand trial
21 Should a ‘consent mental impairment’ hearing be available following a finding of unfitness to stand trial?
The length of the process
22 In your experience as either a person subject to the CMIA, a family member of a person subject to the CMIA or a victim in a CMIA matter, how has the length of the unfitness process affected you?
23 Would removing the jury’s involvement in investigations of unfitness to stand trial be likely to expedite the process?
24 How frequent is it for an accused person to be acquitted at a special hearing, following a finding of unfitness?
25 What procedures could be implemented to expedite the unfitness to stand trial process?
Suitability of findings in special hearings
26 Should changes be made to the findings available in special hearings?
Directions to the jury on findings in special hearings
27 What is the most appropriate way of directing the jury on the findings in special hearings?
Principles underpinning appeals
28 Are there any barriers to accused people pursuing appeals in relation to unfitness to stand trial and findings in special hearings?
Chapter 5—Defence of mental impairment
The meaning of ‘mental impairment’
29 How does the defence of mental impairment work in practice with ‘mental impairment’ undefined?
30 Should ‘mental impairment’ be defined under the CMIA?
31 What are the advantages or disadvantages of including a definition of mental impairment in the CMIA?
32 If mental impairment is to be defined in the CMIA, how should it be defined?
33 What conditions should constitute a ‘mental impairment’? Are there any conditions currently not within the scope of a mental impairment defence that should be included? If so, what are these conditions?
34 If a statutory definition of mental impairment is not required, what other measures could be taken to ensure the term is applied appropriately, consistently and fairly?
The test for establishing the defence of mental impairment
35 How does the test establishing the defence of mental impairment in the CMIA operate in practice? Are the current provisions interpreted consistently by the courts?
36 If a definition of mental impairment were to be included in the CMIA, should it also include the operational elements of the M’Naghten test for the defence of mental impairment? If so, should changes be made to either of the operational elements?
37 Are there any issues with interpretation of the requirement that a person be able to reason with a ‘moderate sense of composure’?
The role of lawyers in the process for establishing the defence of mental impairment
38 What ethical issues do lawyers face in the process for establishing the defence of mental impairment?
39 What is the best way of addressing these ethical issues from a legislative or policy perspective?
The role of experts in the process for establishing the defence of mental impairment
40 Are there any issues that arise in relation to the role of experts and expert reports in the process for establishing the defence of mental impairment?
Jury involvement in the process and consent mental impairment hearings
41 Should there be any changes to the current processes for jury involvement in hearings and consent mental impairment hearings?
Order of considering the elements of an offence
42 What approach should be adopted in directing juries on the order of the elements of an offence in cases where mental impairment is an issue?
43 Should the trial judge be required to direct the jury on the elements of an offence in a particular order where mental impairment is an issue?
The relevance of mental impairment to the jury’s consideration of the mental element of an offence
44 What approach should be adopted in determining the relevance of mental impairment to the jury’s consideration of the mental element of an offence?
Legal consequences of the findings
45 Are changes required to the provision governing the explanation to the jury of the legal consequences of a finding of not guilty because of mental impairment?
Principles underpinning appeals
46 Are there any barriers to accused persons pursuing appeals in relation to findings of not guilty because of mental impairment?
Chapter 6—Application of the CMIA in the Magistrates’ Court
Issues with the lack of jurisdiction
47 What issues arise in relation to the Magistrates’ Court’s lack of jurisdiction to determine unfitness to stand trial?
The power to determine unfitness to stand trial
48 Should the Magistrates’ Court have the power to determine unfitness to stand trial? If yes, consider:
(a) Should the power to determine unfitness to stand trial be limited to indictable offences triable summarily or include certain summary offences?
(b) When can the question of unfitness to stand trial be raised to bring it within the Magistrates’ Court’s jurisdiction?
(c) What should trigger the Magistrates’ Court’s investigation into unfitness?
(d) Should the Magistrates’ Court retain a discretion not to proceed with the investigation into unfitness to stand trial?
(e) What test for determining unfitness to stand trial should apply in the Magistrates’ Court?
49 What are the cost implications of giving the Magistrates’ Court the power to determine unfitness to stand trial?
50 Is a broad, discretionary power to make orders in relation to people with a mental illness, intellectual disability or cognitive impairment a better alternative to giving the Magistrates’ Court an express power to determine unfitness?
51 If considered, should such a power be framed or limited in any way (for example, limited to indictable offences triable summarily)?
52 What are the cost implications of introducing a broad, discretionary power to make orders in relation to people with a mental illness, intellectual disability or cognitive impairment?
53 If the Magistrates’ Court is given the power to determine unfitness to stand trial, what process should apply to determine whether the accused person committed the offence charged?
54 If the Magistrates’ Court is given the power to determine whether the accused person committed the offence charged, should the process be limited to indictable offences triable summarily or include certain summary offences?
Defence of mental impairment in the Magistrates’ Court
55 What issues arise because of the Magistrates’ Court’s lack of power to make orders in relation to people found not guilty because of mental impairment?
The power to make orders following a finding of not guilty because of mental impairment
56 Should the Magistrates’ Court have the power to make orders in relation to people found not guilty because of mental impairment?
57 If yes, should the power to make orders be limited to indictable offences triable summarily or include certain summary offences?
Options for expanding the orders available in the Magistrates’ Court
58 If the application of the CMIA is expanded in the Magistrates’ Court, what orders should be available:
(a) if the Magistrates’ Court is given the power to determine unfitness to stand trial and the criminal responsibility of an accused person found unfit to stand trial?
(b) in relation to people found not guilty because of mental impairment?
(c) if the Magistrates’ Court is given a broad discretionary power to make orders in relation to people with a mental illness, intellectual disability or cognitive impairment?
59 What are the cost implications of the options for expanding orders available in the Magistrates’ Court?
Chapter 7—Consequences of findings under the CMIA
Section 47 certificates on availability of facilities and services
60 Are there appropriate and sufficient facilities and services for people subject to the CMIA?
Reports on the mental condition of people declared liable to supervision
61 Are changes needed to the provisions under the CMIA governing mental condition reports and/or section 47 certificates to ensure adequate and timely information is provided to the courts?
Indefinite nature of the order with a ‘nominal term’
62 Is the use of a nominal term an effective safeguard in balancing the protection of the community with the rights of the person subject to a supervision order?
The method for setting a nominal term
63 Should the method for setting the nominal term be changed? If so, how should it be changed?
Possible effects of the indefinite nature of supervision orders
64 What steps should be undertaken for people involved in CMIA proceedings to better understand the expression ‘nominal term’?
65 What factors affect the advice of lawyers and decisions of accused people in raising the issue of unfitness to stand trial or the defence of mental impairment?
66 In your experience as either a person subject to a supervision order, a family member of a person subject to a supervision order or a victim in a CMIA matter, how has the indefinite nature of a supervision order affected you?
Principles underpinning appeals
67 Are there any barriers to people subject to supervision orders and other parties pursuing appeals against supervision orders?
Ancillary orders and other consequence of findings under the CMIA
68 Should the ancillary orders and administrative consequences that follow in usual criminal proceedings apply to findings made under the CMIA?
69 Which ancillary orders and administrative consequences are appropriate and why?
Chapter 8—Supervision: review, leave and management of people subject to supervision
Review, variation and revocation of orders
70 Are changes required to the provisions for reviewing, varying and revoking supervision orders to make them more just, effective and consistent with the principles underlying the CMIA? If so, what changes are required?
71 In your experience as either a person subject to a supervision order, a family member of a person subject to a supervision order or a victim in a CMIA matter, how has the frequency of reviews affected you?
72 What effect does the current frequency of reviews have on court resources and the resources of other parties involved?
73 Does the CMIA strike the right balance between allowing for flexibility in the frequency of reviews and ensuring that people subject to supervision orders are reviewed whenever appropriate?
Leave of absence under supervision orders
74 Are changes required to the leave processes to make them more just, efficient and consistent with the principles underlying the CMIA? If so, what changes are required?
75 In your experience as either a person subject to a supervision order, a family member of a person subject to a supervision order or a victim in a CMIA matter how have leave processes affected you?
Leave decision-making bodies
76 Should the CMIA provide the Forensic Leave Panel with more flexibility in its operation?
77 Is the composition of the Forensic Leave Panel appropriate?
78 Are changes required to the operation of the Internal Leave Committee? If so, what changes are required?
Responsibility for people subject to supervision orders
79 Is there sufficient clarity in the arrangements for monitoring people subject to non-custodial supervision orders?
80 If no, what changes should be made to ensure that people on non-custodial supervision orders are adequately monitored?
Breaches of supervision orders
81 Is there is a need for guidance on failures to comply with or breaches of supervision orders?
82 If so, what is the best mechanism for providing more guidance on failures to comply with or breaches of supervision orders?
Interstate transfer orders
83 What are the barriers to effecting interstate transfers under the CMIA?
84 If there are barriers, what changes should be made to make the process more efficient?
Chapter 9—Decision making and interests under the CMIA
The flexibility in the system
85 Is there a need for more flexibility in making and reviewing supervision orders and addressing non-compliance under the CMIA?
86 What changes should be made to give the system more flexibility where needed?
Application of the principles and matters the court is to consider
87 Are the current presumptions in varying and revoking supervision orders appropriate?
88 Should the court continue to consider the ‘dangerousness’ of the person subject to the supervision order?
89 Should the court continue to consider the likelihood of the person endangering themselves?
90 What role should the seriousness of the offence play in the making, varying and revocation of orders and applications of leave?
91 Should the CMIA provide more guidance to the courts on the factors relevant to making, varying and revoking orders and applications of leave? If so, what guidance should be provided?
Principles and matters the Forensic Leave Panel considers
92 Is there a need for additional legislative guidance for the Forensic Leave Panel in making leave decisions? If so, what guidance should be provided?
Role of experts and people responsible for supervision
93 Are changes required to improve the way in which expert reports are provided to the courts? If so, what changes are required?
Influence of decision making on length of detention
94 Is the current approach to decision making in relation to people subject to supervision orders overly cautious?
Other models of decision making
95 Should there be a change in the judicial model of decision making under the CMIA?
Representation of people subject to supervision orders
96 Is the level of legal representation for people subject to supervision orders in hearings to make, vary or revoke a supervision order, and leave hearings appropriate?
97 Is there a need for more advocacy or support, in addition to legal representation, for people subject to supervision orders when they are in detention or in hearings?
The role and interests of victims and family members
98 Do the CMIA provisions allow for effective participation by victims and family members?
Representation of community interests
99 Should community interests be represented in the CMIA system of supervision?
100 Does the involvement of a number of agencies representing the community’s interests increase costs unnecessarily?
101 What is the most appropriate way of representing the community’s interests in the CMIA?
Suitability of the system for people with an intellectual disability or cognitive impairment
102 Is the current CMIA model of supervision appropriate for people with an intellectual disability or cognitive impairment?
103 Are changes needed to the CMIA model of supervision to better meet the needs of people with an intellectual disability or cognitive impairment?
104 Are changes needed to the processes and services that support the CMIA model of supervision to ensure that it meets the needs of people with an intellectual disability or cognitive impairment?
Suppression orders and the principle of open justice
105 What matters should the court consider when making suppression orders?
106 What issues arise concerning suppression orders under the CMIA?
107 What is the appropriate balance between therapeutic considerations (pointing to suppression) and open proceedings (pointing to publication)?
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