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

9. Processes and findings under the CMIA in all courts

Introduction

9.1 The Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) (‘CMIA’) outlines the process for determining unfitness to stand trial and for special hearings. It also sets out the process for establishing the defence of mental impairment.

9.2 The CMIA contains provisions which set out the consequences that follow findings in the unfitness to stand trial and mental impairment processes. These differ from the consequences that follow a trial in the usual criminal process, reflecting the different principles that underlie the CMIA.

9.3 In this chapter, the Commission discusses the law that applies to these processes and findings and makes recommendations to improve their operation. In addition, the Commission discusses its recommendations on the appeal processes and the ‘ancillary’ orders and consequences that follow a finding under the CMIA. The Commission proposes that the recommendations in this chapter apply to all courts unless specified otherwise.

9.4 The Commission’s recommendations on the processes and findings under the CMIA aim to:

• resolve procedural anomalies in the CMIA, for example, by clarifying that reports under section 41(1) of the CMIA can be provided before the court declares that a person is liable to supervision, as well as after this declaration

• ensure that the participation of the accused in the proceedings that affect them is maximised by the provision of in-court support, but also ensure that the CMIA operates in line with its therapeutic focus, for example, by allowing the accused to be absent from a special hearing where it would be too distressing

• ensure that findings under the CMIA better reflect the outcome of CMIA proceedings, so that the CMIA operates in a way that is transparent and recognises the interests of victims in the process

• streamline existing processes and thereby reduce the replication of information or procedures, for example, by providing for a process to consolidate multiple investigations of unfitness to stand trial into a single investigation

• provide an approach for a review of ancillary orders and consequences to follow a CMIA finding where these orders and consequences are necessary for community safety or do not have a punitive effect

• develop appeal processes to ensure that people who are subject to a CMIA finding have the opportunity to correct any significant errors in the initial decision so that a fair outcome is reached.

Improvements to the process for determining unfitness to stand trial and special hearings

9.5 The question of whether an accused is unfit to stand trial is determined by a jury on the balance of probabilities in the Supreme Court or County Court.^[1] The jury must make a finding that the accused is fit or unfit to stand trial for the offence charged. In Chapter 7, the Commission makes a recommendation for investigations of unfitness to stand trial to be conducted by a judge or magistrate, in place of a jury.

9.6 If a jury finds the accused unfit to stand trial, the judge must determine whether they are likely to become fit to stand trial within 12 months.^[2] If the judge determines that the accused is likely to become fit and they do become fit after a period of adjournment, the trial will proceed as an ordinary criminal trial.^[3]

9.7 If the judge determines that the accused is not likely to become fit within 12 months, or remains unfit after the period of adjournment,^[4] a special hearing must be conducted before a jury to determine whether:

• the accused is not guilty of the offence (a complete acquittal)

• the accused is not guilty of the offence because of mental impairment, or

• the accused committed the offence.^[5]

9.8 A special hearing is conducted as closely as possible to a criminal trial.^[6] The accused found unfit to stand trial is deemed to have pleaded not guilty to the offence.^[7]

9.9 If an accused is found to have committed the offence at a special hearing, this constitutes a ‘qualified finding of guilt’.^[8] A qualified finding of guilt does not amount to a conviction. There can be no further prosecution of the person in respect of the same offence and the finding is subject to appeal as if the person had been found guilty in an ordinary criminal trial.^[9]

9.10 In the following section, the Commission makes recommendations to improve the process for determining unfitness to stand trial and special hearings. These recommendations relate to:

• the ability of the court to remand an accused in custody to an ‘appropriate place’ before a special hearing

• the presence of the accused at a special hearing

• the provision of in-court support in special hearings.

Reports on unfitness to stand trial

9.11 The CMIA provides the court with the power to order reports to determine whether the accused is unfit to stand trial.^[10] Information provided to the Commission indicated that this power is rarely exercised.^[11] Submissions and consultations did not indicate that any change was needed to these provisions. However, granting courts the power to order the production of reports on unfitness to stand trial in the Magistrates’ Court and Children’s Court was strongly supported. The Commission has therefore recommended that the Magistrates’ Court and Children’s Court also have the power to order reports concerning an accused’s unfitness to stand trial (see Recommendations 28(g) and 45(d)) but does not recommend any change to the power in the higher courts.

9.12 While the court has the power to order a report to assist it in determining unfitness

to stand trial, they do not have similar powers in relation to the defence of mental

impairment. The Office of Public Prosecutions supported the introduction of a power for the court to order expert reports in respect of the defence of mental impairment.^[12] The Commission considers that in contrast to the question of unfitness to stand trial, where the state subjects the accused to the trial process, the defence of mental impairment is raised on the election of the defence. Therefore, responsibility for producing reports on the defence of mental impairment should lie with the defence.^[13]

Process after an accused is found unfit to stand trial

Timeframe between a ‘permanent’ finding of unfitness and a special hearing

9.13 Under the CMIA, if the accused is found unfit to stand trial and the judge determines that the accused is not likely to become fit within 12 months (‘permanent finding of unfitness’), the court must proceed to hold a special hearing within three months.^[14]

9.14 While the period of adjournment before a special hearing can be extended for a further period not exceeding three months, this only appears to apply to situations where an accused has been found unfit to stand trial but a judge has granted an adjournment because the accused is likely to become fit within 12 months (‘temporary finding of unfitness’).^[15]

9.15 The judge may also extend the three-month period between a finding that there is a real and substantial question as to unfitness to stand trial and the investigation into unfitness.^[16]

Views in submissions and consultations

9.16 The Criminal Bar Association and a member of the Commission’s advisory committee noted an issue in relation to the timeframe for holding a special hearing following a permanent finding of unfitness. The Criminal Bar Association observed in its submission that the fact that the court has the power to extend time following a finding that there is a real and substantial question as to unfitness and a temporary finding of unfitness, suggests that parliament has taken a different view of a person who has been found permanently unfit to stand trial.^[17]

9.17 The Criminal Bar Association noted that there are pending cases now outside the three-month period following a permanent finding of unfitness with no clear power for the court to extend that period. The Criminal Bar Association considered that the question will be the subject of further litigation and potentially a request for legislative review.

The Commission’s conclusion

9.18 The Commission acknowledges that from a practical or operational perspective it can be difficult for courts and the parties to proceed with matters within a strict timeframe. However, on balance, the Commission does not recommend a change to the three-

month period following a permanent finding of unfitness (for example, by providing for a power for the court to extend the period). As submitted by the Criminal Bar Association, the timeframes set out in the CMIA are for the benefit of the accused. The Explanatory Memorandum to the Crimes (Mental Impairment and Unfitness to be Tried) Bill, for example, states:

These time frames are provided to ensure that persons who are unfit to stand trial have the issues in relation to them determined as soon as possible to ensure that if appropriate treatment or services are required to assist the person they can be provided as soon as possible.^[18]

9.19 In situations where an accused has been found permanently unfit to stand trial, and therefore there is no possibility of them becoming fit within a reasonable period, their interests are best served by a resolution of the matter and the commencement of their treatment as soon as practicable. This is consistent with the Commission’s threshold recommendation for measures to avoid unreasonable delay in Chapter 2. Maintaining a limit of three months before the special hearing protects this group of people who, due to their unfitness, are unlikely to be able to advocate for timeframes favourable to them to be adhered to. It will minimise any stress caused by the legal process for both the accused and victims. It could also minimise any deterioration in the accused’s mental condition. Further, as the Commission discusses in Chapter 11, accused with an intellectual disability who may be unfit are sometimes held on remand in prison. It is crucial that any period spent in prison is minimised for people who are unfit.

Power to remand a person to an ‘appropriate place’ after a permanent finding of unfitness

9.20 Following a temporary finding of unfitness to stand trial, the judge may remand the accused in custody in an ‘appropriate place’ for no more than the period by the end of which the accused is likely to be fit.^[19] The CMIA defines an ‘appropriate place’ to mean an approved mental health service, a residential treatment facility or a residential institution.^[20] In other words, an appropriate place is a place where an accused can receive the treatment or services they need to assist them to become fit to stand trial.

Views in submissions and consultations

9.21 The Victorian Institute of Forensic Mental Health (Forensicare) noted that while the court can remand a person who is temporarily unfit to stand trial to an appropriate place, no such power is set out for a person found permanently unfit, pending the holding of a special hearing. Forensicare noted that the reason for the difference is unclear and argued that a provision should be introduced to allow an accused awaiting a special hearing to be remanded to an ‘appropriate place’.^[21]

The Commission’s conclusion

9.22 The Commission agrees that there does not appear to be a reason for the inconsistency between the ability of the court to order a remand to an appropriate place in situations where an accused is temporarily unfit and where an accused is permanently unfit. In the Commission’s view, this procedural anomaly should be addressed by amending the CMIA to give the court the power to remand an accused who is permanently unfit to an appropriate place as well as the orders available in section 12(2) of the CMIA. The Commission considers that such an amendment is consistent with the therapeutic focus of the CMIA.

Recommendation

65 The Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) should be amended to enable a judge or magistrate to make any order under section 12(2) of the Act, including remanding the accused in custody in an appropriate place for the period before the special hearing following a finding that the accused is unfit to stand trial and is not likely to become fit within 12 months.

Providing exceptions to the requirement that an accused attend a special hearing

Views in submissions and consultations

9.23 The Office of Public Prosecutions suggested that the court should be allowed to direct that the accused not be in court where they are legally represented and would be distressed or confused by the proceedings.^[22]

The Commission’s conclusion

9.24 The Commission agrees with this suggestion. The stress an accused can experience as part of the trial process is often exacerbated when they have a mental illness, intellectual disability or other cognitive impairment. Special hearings are conducted as nearly to a criminal trial as possible^[23] and could similarly be distressing for people who are unfit to stand trial. While the Commission considers that the participation of people who are unfit to stand trial in the processes that affect them should be maximised as far as possible, this should not occur where the process would be unduly distressing or result in a deterioration of their mental health. As Justice Osborn observed in DPP v CJC:^[24]

there are strong reasons of both humanity and public policy, supporting the view that if a person is not fit to take part in a trial, they should not be forced to take part in a special hearing before a jury. These proceedings should be no more of a public spectacle of suffering than is necessary.^[25]

9.25 Under the Criminal Procedure Act 2009 (Vic) the court may excuse a person from attending a hearing. ‘Attend’ includes being physically present in court or being brought before the court by audiovisual link.^[26] The Commission considers that the CMIA should contain a similar provision to allow accused to participate in this less confrontational way.

Recommendation

66 The Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) should be amended to:

(a) enable a judge or magistrate to excuse an accused from attending a special hearing with the consent of both parties, and

(b) provide that an accused may ‘attend’ a special hearing by audiovisual link, with the consent of both parties.

In-court support during special hearings to optimise participation

9.26 As noted in Chapter 3, the importance of support measures in the unfitness to stand trial process was one of the strongest themes to come out of the Commission’s review of the CMIA.

Views in submissions and consultations

9.27 Submissions that addressed this issue and stakeholders consulted agreed that accused with mental conditions should be provided with more support in court.^[27] The benefits of giving support measures a greater role in the unfitness to stand trial process are outlined at [3.116].

The Commission’s conclusion

9.28 In the Commission’s view, the law should accommodate the varying abilities and needs of accused who may be unfit to stand trial to the greatest extent possible. Further, where an accused has been found unfit, their participation in the special hearing should be optimised through the provision of support in court. The Commission considers this is important to ensure that as far as possible people who are unfit are given the opportunity to participate, in a way equal to those who are fit, in the proceedings that affect them.

9.29 In Chapter 3, the Commission discusses ways of supporting an accused to optimise their ability to become fit to stand trial prior to a court determining their unfitness. These include:

• the use of a ‘communication assistant’ or intermediary to interpret what is said in court

• improvements to communication methods in court—for example, using more visual aids and making questions asked in court and other discussions in court easier to understand

• modifications to court procedure—for example, introducing shorter sessions or reducing the formality or intimidating character of proceedings.

9.30 The Commission considers that these supports are just as relevant to people who have been found unfit to stand trial in maximising their participation in special hearings.

9.31 The Commission has made a recommendation in Chapter 3 for more support measures to be made available in the court process (Recommendation 19). For example:

• the introduction of a formal support person scheme

• the development and use of practice notes or practice directions in courts to promote the use of support measures for accused with a mental illness, intellectual disability or other cognitive impairment in court.

9.32 This recommendation is equally applicable and broad enough to cover people who have been found unfit to stand trial. The recommendation will be supported by other recommendations on training for the judiciary in managing proceedings involving people with mental conditions (Recommendation 13) and for lawyers in supporting their client’s ability to participate in proceedings (Recommendation 11).

Streamlining the hearing of multiple matters under the CMIA

Views in submissions and consultations

9.33 The Criminal Bar Association raised a concern about the need for a finding of unfitness to stand trial having to be made by a jury in relation to each matter where the accused is facing multiple matters. The Criminal Bar Association suggested that where an application is made by the defence, and the court agrees, the question of unfitness in relation to all matters should be able to be determined in one proceeding.^[28]

9.34 The Criminal Bar Association raised similar issues in relation to an accused who raises the defence of mental impairment in multiple matters. It suggested that in such cases, on the application of the accused, and where the court agrees, one proceeding should be held in relation to all of those matters or some of them.^[29]

The Commission’s conclusion

9.35 The Commission agrees with the Criminal Bar Association’s submission that streamlining multiple hearings in relation to unfitness to stand trial and the defence of mental impairment is in the interests of the accused, victims and the community as a whole. It will result in more efficient use of resources by avoiding the unnecessary replication of procedures. Further, it avoids any stress caused to the accused or victims by multiple proceedings.

9.36 The Commission proposes that the Criminal Procedure Act be amended to permit the concurrent hearing of multiple matters relating to unfitness to stand trial or the defence of mental impairment. This could be achieved by introducing an exception to Schedule 1 clause 5 of the Criminal Procedure Act, which currently provides that a charge-sheet or indictment may contain charges for ‘related offences’. Where there are multiple matters relating to unfitness or the defence of mental impairment, the offences in these matters may not qualify as ‘related offences’ under the Criminal Procedure Act.^[30] An amendment could therefore be made to create an exception to this rule in Schedule 1 clause 5 so that the court may, with the consent of the accused and the prosecution, make an order permitting:

• a charge-sheet or indictment to contain charges for multiple matters in which the question of unfitness to stand trial has been raised

• a charge-sheet or indictment to contain charges for multiple matters in which the issue of whether the defence of mental impairment is established is to be determined.

9.37 Introducing an option to streamline multiple hearings where the defence of mental impairment is in issue may not be appropriate in all circumstances. Unlike the question of unfitness to stand trial, which relates to the accused’s mental state at the time of the trial, the defence of mental impairment relates to the mental state of the accused at the time of an offence. If the accused is involved in a number of matters, each matter would not necessarily relate to offences that occurred while the accused was suffering from the same mental condition or was impaired by the mental condition to the same degree required by the defence. In the Commission’s view, requiring a judicial order to be made based on the consent of the parties will act as a safeguard against the streamlining of matters where it would be inappropriate having regard to the rules of joinder of charges.^[31]

Recommendation

67 The Criminal Procedure Act 2009 (Vic) should be amended to permit the court, with the consent of the accused and the prosecution, to make an order allowing:

(a) a charge-sheet or indictment to contain charges for multiple matters in which the question of unfitness to stand trial has been raised, and

(b) a charge-sheet or indictment to contain charges for multiple matters in which the issue of whether the defence of mental impairment is established is to be determined.

The names of findings under the CMIA

9.38 A special hearing is conducted after an accused has been found unfit to stand trial to determine whether:

• the person is not guilty of the offence (a complete acquittal)

• not guilty of the offence because of mental impairment, or

• committed the offence.^[32]

9.39 If the defence of mental impairment is raised in the course of an ordinary trial, there are three possible outcomes. The accused may be found guilty, not guilty, or not guilty because of mental impairment.

9.40 In the following section, the Commission discusses improvements it proposes to the terminology of the findings of ‘committed the offence charged’ and ‘not guilty because of mental impairment’.

Changing the finding of ‘committed the offence charged’

9.41 The New South Wales Law Reform Commission observed that the qualified finding of guilt may create the perception that the accused has been found guilty of an offence, even though there has not been a usual trial of the evidence that would enable a full investigation of the facts.^[33]

9.42 The qualified finding of guilt in Victoria contrasts with the equivalent finding available in Tasmania. Tasmania provides that ‘a finding cannot be made that the defendant is not guilty of the offence charged’.^[34] It also contrasts with the finding recommended by the Community Development Committee, whose report paved the way for the introduction of the CMIA, that ‘on the limited evidence available, a finding cannot be made that the person is not guilty of the offence or any offence available as an alternative’.^[35]

9.43 In its Review of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997: consultation paper (‘the consultation paper’), the Commission asked whether changes should be made to the findings in special hearings, particularly to the finding of ‘committed the offence charged’.

Views in submissions and consultations

9.44 The Commission did not receive much feedback about whether the finding of ‘committed the offence charged’ should be changed. Two submissions agreed that the current terminology could lead to a perception of guilt and have a stigmatising effect.^[36] Only one submission supported an amendment to the finding.^[37]

The Commission’s conclusion

9.45 In the Commission’s view, a finding that more accurately labels the outcome of a special hearing should be adopted. The Commission considers that it is important that the CMIA operates in a transparent manner to avoid any misperceptions that the accused has been found guilty and yet ‘escapes’ criminal sanctions.

9.46 The Commission recommends that the CMIA be amended to replace the finding that the accused ‘committed the offence charged’ with a finding that the accused’s ‘conduct is proved on the evidence available’. The Commission considers that this finding more accurately reflects the outcome of a special hearing. It demonstrates that the conduct the accused has been charged with was proved, but it also acknowledges that a special hearing is not an ordinary trial with evidence available to enable a full investigation of the facts. The Commission considers that changing the finding in this way will make its meaning and its implications clearer and more readily understood by victims and the community.

Recommendation

68 Section 17(1) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) should be amended to change the finding that the accused ‘committed the offence charged’ to a finding that the ‘conduct is proved on the evidence available’.

Changing the finding of ‘not guilty because of mental impairment’

9.47 A finding of ‘not guilty because of mental impairment’ raises similar issues to the finding of ‘committed the offence charged’ discussed earlier. The use of the words ‘not guilty’ in the finding can cause confusion and stress for victims.^[38] As Barnett and Hayes have observed:

Many victims may not fully understand what exactly it means by not guilty by reason of mental illness [an equivalent to not guilty because of mental impairment]. Often, these victims can feel betrayed by the criminal justice system and feel that they will receive little recognition for what happened to them. For victims, the term not guilty can suggest that the crime is not acknowledged or recognised by the justice system [emphasis in original].^[39]

The Commission’s conclusion

9.48 In the Commission’s view, a finding that more accurately labels the outcome when the defence of mental impairment is proved should be adopted. The Commission recommends that the finding of ‘not guilty because of mental impairment’ be replaced with a finding of ‘conduct is proved but not criminally responsible because of mental impairment’. The Commission considers that it demonstrates that the conduct the accused has been charged with was proved, but it also acknowledges that the accused is not criminally responsible for that conduct because of their mental impairment. The recommended finding should give more recognition of the circumstances of the offence to victims than a finding that includes the words ‘not guilty’. It could also address any misinterpretations in the community that the accused has been found ‘not guilty’ despite having engaged in the conduct constituting the offence.

9.49 The Commission considers that changing the finding in this way will promote the transparent operation of the CMIA. Like the recommendation the Commission makes on the finding of ‘committed the offence charged’ (Recommendation 68), this recommendation will make the meaning and the implications of this finding clearer and more readily understood by victims and the community.

Recommendation

69 The Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) should be amended to change the finding that the accused is ‘not guilty of the offence because of mental impairment’ to a finding that the ‘conduct is proved but not criminally responsible because of mental impairment’.

Process that follows a CMIA finding

9.50 In this section, the Commission examines the current process that follows a finding that the accused committed the offence charged or is not guilty because of mental impairment. It makes recommendations in relation to the process:

• for providing information to the court before an order for unconditional release

• for preparing certificates on availability of facilities and services under section 47 of the CMIA

• that should apply after a CMIA finding where a person is already subject to a supervision order.

9.51 If a person found unfit to stand trial is then found not guilty by a jury in a special hearing, this is taken to be a finding of not guilty at a criminal trial.^[40] This is an acquittal and the court is required to release the person. Similarly, a person found not guilty in an ordinary criminal trial must be released.

9.52 Where a person is found to be either not guilty because of mental impairment or to have committed the offence, the judge may either unconditionally release the person or order that the person be liable to supervision.^[41] If the judge orders that the person is liable to supervision, they may make an order that is custodial or non-custodial.^[42] A custodial supervision order is an order for the supervision of the person in detention. A non-custodial supervision order is an order for the supervision of the person in the community subject to conditions.

9.53 A supervision order is for an indefinite term. Once the court declares a person liable to supervision, but before the court imposes a supervision order, it can also make orders granting bail, remanding the person in custody and for a medical or psychological examination of the person.^[43]

9.54 In Chapter 5, the Commission considers the options that should be available to magistrates following a CMIA finding in the Magistrates’ Court. In Chapter 6, the Commission considers these options in relation to young people.

Ensuring information is provided to the court after a finding

9.55 A court must consider several matters prior to making an order for the unconditional release of a person under the CMIA.

9.56 A person can only be released unconditionally if the court:

• has obtained and considered the report on the person’s mental condition and the possible effect on their behaviour of unconditionally releasing the person of at least one registered medical practitioner or registered psychologist who has examined the person (section 40(2) report)

• is satisfied that the person’s family members and victims of the charged offence have been given reasonable notice of the hearing at which the court is proposing to order release

• has considered any report of the family members or victims

• has obtained and considered any other reports necessary.^[44]

9.57 Thus, reports and information must be prepared and provided to the court after the making of findings and prior to a court deciding whether to release the person or declaring them liable to supervision.

9.58 In addition, there are two documents that are provided to the court once a person is declared liable to supervision:

• a report on the mental condition of the person declared liable to supervision under section 41(1) of the CMIA (mental condition report)

• a certificate of available services under section 47 of the CMIA (certificate of available services).

Views in submissions and consultations

9.59 Victoria Legal Aid, the Criminal Bar Association and Forensicare identified two issues in relation to the timing of the court’s decision on whether the person can be unconditionally released and the time at which reports are provided to the court.

9.60 First, Forensicare submitted that it is unclear whether the court is required to make this decision immediately or can adjourn the matter to obtain further evidence, such as reports. Forensicare observed that while section 23 of the CMIA suggests that this step must follow immediately, the court cannot order an unconditional release without obtaining and considering the section 40(2) report.

9.61 Forensicare submitted that providing for a clear power for the case to be adjourned to obtain the reports required would ensure that the option of unconditional release is considered together with the option for supervision.^[45] Forensicare highlighted the importance of this issue, noting that once a person is made liable to supervision, the option of unconditional release is no longer available.^[46]

9.62 The second issue concerns the requirement that the court cannot unconditionally release a person unless they have considered the mental condition report. Under the current law, where the defence seeks an unconditional release but the prosecution seeks an order declaring the person liable to supervision, the court must first order a section 40(2) report. Then, if the court decides to declare the person liable to supervision, the court must order both a certificate of available services and a mental condition report^[47] of the person declared liable to supervision (these are discussed in more detail below).^[48]

9.63 The Office of Public Prosecutions (OPP) submitted that, in practice, the court orders a certificate of available services and a mental condition report prior to declaring the person liable to supervision with a request that the mental condition report address the matters required in the section 40(2) report. The OPP notes that this practice may be contrary to the requirement that the mental condition report be provided if a person is declared liable to supervision (and not before the person is declared liable to supervision).^[49] The OPP suggested that the CMIA be amended to provide that a certificate of available services and a mental condition report, which address the matters that the court must consider in a decision to unconditionally release the person, are sufficient in this circumstance.^[50]

9.64 The Criminal Bar Association noted similar problems to those raised by the OPP and added that when deciding whether to unconditionally release a person the court is required to consider a mental condition report.^[51] The Criminal Bar Association submitted that mental condition reports should be available for all options being considered by the court.^[52]

The Commission’s conclusion

9.65 The Commission agrees with Forensicare’s submission that the CMIA should be amended to clarify that a CMIA matter can be adjourned before the decision to declare a person liable to supervision or to order an unconditional release. The requirement for the court to obtain and consider certain reports before making an order for unconditional release^[53] implies that the court need not make a decision immediately after the person has been found to have committed the offence charged or to be not guilty because of mental impairment. However, the Commission agrees that making it clear that the court can adjourn the matter to obtain these reports will remove any confusion that currently exists on the timing of the decision. Further, it will also provide support for the court to obtain other information, such as the certificate of available services, in considering whether to declare a person liable to supervision. This will ensure that both options—declaring the person liable to supervision or unconditionally releasing them—will be considered with the optimal information available.^[54]

Recommendation

70 The Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) should be amended to enable the court to adjourn a matter to obtain any reports necessary under section 40(2) or a certificate of available services under section 47 prior to a decision to declare that the person is liable to supervision or to order the person be released unconditionally under sections 18(4) or 23.

9.66 The submissions by the OPP and the Criminal Bar Association raised two matters that need to be addressed:

• the requirement that the court cannot unconditionally release a person unless they have considered the mental condition report is inconsistent with such reports only being available after a person has been declared liable to supervision^[55]

• the replication of information in the section 40(2) report and the mental condition report.

9.67 The Commission agrees with the Criminal Bar Association that mental condition reports should be available at the point that the court is deciding whether to declare the person liable to supervision or unconditionally release them. This will avoid the court being forced to act in a way that is inconsistent with the CMIA; in addition, it will avoid situations where the option of unconditionally releasing the person is not given due consideration because of the limited application of mental condition reports.

Recommendation

71 Section 41 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) should be amended so that reports on the mental condition of a person under that section can be prepared and filed prior to a decision to declare that the person is liable to supervision under sections 18(4) or 23.

9.68 The Commission notes that the section 40(2) report and the mental condition report serve different purposes. The section 40(2) report is targeted at a decision to unconditionally release the person as it considers the possible effect of the proposed order on the person’s behaviour. The mental condition report contains information about the person’s treatment or other plans to manage their mental condition if a person is declared liable to supervision. The Commission considers that one report could cover the information required in both reports. The Commission agrees with the OPP that a mental condition report that addresses the matters in section 40(2) would be sufficient in place of a section 40(2) report. The Commission considers that this change would provide clarity in the requirements for reports, avoid any unnecessary replication of information and encourage a more efficient process.

Recommendation

72 The Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) should be amended so that the court need not consider the report on the mental condition of a person under section 41(1) and a report under section 40(2)(a) if the report under section 41(1) addresses the matters listed in section 40(2)(a).

Extending the timeframe for preparing a certificate of available services

Reports on mental condition of people declared liable to supervision

9.69 When a person is declared liable to supervision, the court receives a report on the mental condition of the person. The ‘appropriate person’ (the service responsible for supervising the person), is responsible for providing this report. This is either the authorised psychiatrist for Forensicare (for people with a mental illness)^[56] or the Secretary to the Department of Human Services (DHS) (for people with an intellectual disability).^[57]

9.70 The report on the mental condition of the person must be provided within 30 days of the person being declared liable to supervision. It contains the following:

• a diagnosis and prognosis of the condition or an outline of the person’s behavioural problems

• the person’s response to treatment, therapy and counselling

• a suggested treatment or other plan for managing the condition.^[58]

Certificate of available services

9.71 If a court declares a person liable to supervision, the court may remand the person in custody in an appropriate place. Before making this order, the court must first receive a certificate of available services to confirm that the facilities or services necessary for the order are available. Alternatively, the court can remand the person in custody in a prison. However, the court cannot remand a person in prison unless there is ‘no practicable alternative in the circumstances’.^[59]

9.72 The requirement for a certificate of available services also applies when a court makes a supervision order. The certificate is required before a court can commit a person to custody in an appropriate place or provide for a person to receive services. As with remand, the court must not make a supervision order committing a person to prison unless it is satisfied there is no practicable alternative.^[60]

9.73 The certificate of available services must be provided to the court within seven days of receiving its request unless the court extends this period.

Views in submissions and consultations

9.74 The Commission received feedback that the time provided to prepare the certificate of available services (seven days) is insufficient.^[61] Stakeholders who expressed this view noted that:

• The preparation of the certificate of available services is time-consuming, particularly when a person has not had previous interaction with DHS. It requires DHS to assess not only the available facilities and services but also whether the person meets the eligibility criteria for receiving disability services under the Disability Act 2006 (Vic).^[62]

• To determine whether a person is suitable for the Disability Forensic Assessment and Treatment Service (DFATS), DHS generally conducts a full psychological assessment of the person to assess their risk and treatment and management needs. This takes between six and seven weeks.^[63]

• The internal approval procedures within DHS also take time and have to be factored into the period allocated for the preparation of the certificate of available services.^[64]

9.75 In one of the Commission’s consultations with DHS case managers, participants noted the importance of ensuring that the facilities and services made available were appropriate given that the person could be subject to the supervision order for a long period of time.^[65]

9.76 Forensicare submitted that the timeframe for the provision of section 47 certificates should be the same as that for mental condition reports (30 days). Forensicare noted that the section 47 certificate which relates to the custody, care or treatment of a person is dependent on the suggested treatment plan in the mental condition report.^[66]

9.77 In the Commission’s consultation with judges of the Supreme Court of Victoria, one judge noted that an order remanding a person to custody pending an investigation into unfitness to stand trial is contingent upon a certificate of available services being provided to the court. In most cases, a person would already be detained in a mental health facility when a supervision order is being made. It was suggested that the CMIA should be amended so that a certificate of available services need not be provided to the court if a person is already detained.^[67]

9.78 Victoria Legal Aid noted that while certificates of available services are used when a person is placed on a custodial supervision order, the same process is not followed when a person is placed on a non-custodial supervision order. It submitted that a consistent approach in the provision of certificates for both types of supervision orders should be preferred.^[68]

The Commission’s conclusion

9.79 The Commission recognises the difficulties involved in providing a certificate of available services within a period of seven days. The Commission also agrees that the certificate contains information relevant to an order that is in place for an indefinite period. The Commission considers that the information in the certificate should therefore be put together in a considered and thorough manner. This should be balanced against the need to avoid any unreasonable delay and the benefit to the person of commencing their treatment or management under the CMIA sooner rather than later.

9.80 On balance, the Commission recommends that certificates of available services should be provided within the same timeframe as mental condition reports (30 days). As Forensicare noted, this will enable the certificate to draw on the information provided in the mental condition report. The Commission considers this will result in higher quality information being provided to the court, in addition to addressing some of the concerns about the lack of time to prepare certificates. If more time than 30 days is required, the Commission proposes that the court should continue to have the discretion that currently exists under the CMIA to order a longer period.

Recommendation

73 Section 47(4) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) should be amended to require the provision of a certificate of available services to the court within 30 days after receiving a request under section 47(1) or within such a longer period as the court allows.

9.81 The Commission notes the view that where a person is in remand and a certificate of available services has been prepared, there is no need to prepare an additional certificate where a supervision order is being made.

9.82 On balance, the Commission considers that there are benefits in requiring a certificate of available services to be prepared when making a supervision order, regardless of whether one has been prepared previously. In the Commission’s view, the initial and subsequent certificates have different focuses.

9.83 The initial certificate of available services concerns an order in place for a finite amount of time, whereas the subsequent certificate relates to an order that could operate for an indefinite period of time. Further, the subsequent certificate has a greater therapeutic focus. As noted by Forensicare, it draws on the information provided in the mental condition report to give effect to the treatment or management prescribed there.^[69] The mental condition report is not prepared when the court is making an order to remand the person.

9.84 Finally, the Commission considers that the information in the certificate of available services at the time an order remanding a person into custody is made will not necessarily be relevant at the time the court is making a supervision order. The Commission therefore does not make a recommendation for the CMIA to specify that a certificate is not required when the person is already in custody.

9.85 The Commission does not consider there is a need to specify that certificates of available services should be required for the making of a non-custodial order, as suggested by Victoria Legal Aid. The current provisions in the CMIA are broad enough to require the provision of a certificate for the making of a non-custodial supervision order.^[70]

Improving the process where a person is already subject to a supervision order

Views in submissions and consultations

9.86 It was observed in submissions and consultations that it is relatively common for people to be placed on multiple supervision orders.

9.87 The Criminal Bar Association suggested that if a supervision order already exists, the court should be able to change the time period for supervision, if appropriate, on an already existing order, instead of subjecting a person to multiple supervision orders.^[71]

The Commission’s conclusion

9.88 The Commission agrees that there should be scope to streamline supervision orders where appropriate to reflect updated circumstances, rather than automatically subjecting a person to multiple supervision orders. This will avoid the replication of supervision orders and the confusion and burden associated with a person being on multiple supervision orders and make the process more efficient.

9.89 The CMIA should be amended to enable a court to decline to impose a supervision order where a person is already subject to a supervision order. For example, where a person is subject to an indefinite supervision order and is then liable to be subject to a two-year supervision order in the Magistrates’ Court, the court could decline to make the two-year supervision order. In contrast, if a person is subject to a two-year supervision order in the Magistrates’ Court and then becomes liable to be subject to an indefinite supervision order in the higher courts, the court could proceed to impose the indefinite supervision order. The review periods will not depend on the order that already exists, as this may be inappropriate where the existing order is less restrictive than the new order to be imposed. Rather, the review period will rely on the supervision order that, in the court’s view, should take precedence.

Recommendation

74 The Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) should be amended to enable a court to decline to impose a subsequent supervision order where a person is already subject to a supervision order.

Ancillary orders and consequences

9.90 In the usual criminal process, ancillary orders and consequences can follow a sentence when a person is found guilty of an offence. The ancillary orders or consequences can vary depending on the particular type of offence. In some cases, the orders are made at the court’s discretion. In other cases, consequences or orders are mandatory by virtue of the legislation. For example, in the usual criminal process, when a person is found guilty of an offence, the court is usually required to record a conviction against the person. When the offence is less serious, the court usually has a discretion not to record a conviction. Some ancillary orders can only be made following a conviction, while others can flow after a finding of guilt without a conviction.

9.91 A finding under the CMIA that a person committed the offence charged (following a finding of unfitness to stand trial) or a finding of not guilty because of mental impairment does not result in a conviction for an offence.

9.92 The imposition of ancillary orders and consequences following a criminal finding of guilt raises the issue of whether these orders or consequences should also follow a finding under the CMIA. In the consultation paper, the Commission examined these ancillary orders and consequences and sought input on their applicability in CMIA matters.

9.93 Generally, submissions and consultations indicated that the limited and inconsistent application of the law relating to ancillary orders and consequences in both the higher courts and the Magistrates’ Court needed to be addressed.

9.94 The absence of ancillary orders or consequences in CMIA matters in the Magistrates’ Court (where currently no finding of unfitness to stand trial or orders following a finding of not guilty because of mental impairment can be made) was a concern strongly expressed by Victoria Police. The importance of the availability of ancillary orders or consequences for CMIA matters in the Magistrates’ Court was also highlighted at the Commission’s roundtable on the CMIA in the Magistrates’ Court.^[72]

9.95 The following reasons were given in support of providing for ancillary orders and consequences to follow CMIA findings:

• It is important for the safety of the community.^[73]

• Automatically excluding people subject to the CMIA from being subject to ancillary orders or consequences does not accord with rehabilitative principles that encourage them to take responsibility for themselves and their actions.^[74]

9.96 Feedback to the Commission generally agreed that any recommendations on ancillary orders or consequences should aim to achieve consistency and ensure that these orders or consequences are not punitive^[75] or compensatory.^[76] If they are necessary, they are made for community safety or the treatment and stability of the person.^[77]

9.97 In this section, the Commission outlines:

• ancillary orders and consequences that are relevant to findings under the CMIA

• the views expressed in submissions and consultations on each type of ancillary order and consequence

• the Commission’s recommended approach to determining which ancillary orders and consequences should be available following a finding under the CMIA.

Restitution, compensation and recovery

9.98 Part 4 of the Sentencing Act 1991 (Vic) provides for orders to be made following a finding of guilt for an offence. These are:

• A restitution order—Where a person is found guilty or convicted of an offence connected with theft, an order may be made requiring the return of stolen goods or property or money to replace the stolen goods.^[78]

• A compensation order—Where a person is found guilty or convicted of an offence, an order may be made for the person to pay compensation for:

• pain and suffering to any person who has sustained an injury as a direct result of the offence,^[79] or

• property loss sustained by any person who has suffered loss or destruction of, or damage to, property.^[80]

• An order for recovery of assistance paid under the Victims of Crime Assistance Act 1996 (Vic)—Where a person is found guilty of or convicted of particular offences^[81] and an award of assistance is made in respect of an injury or death that resulted from an offence, an order may be made requiring the offender to pay an amount of money to the state.^[82]

• A cost recovery order—Where a person is found guilty or convicted of an offence relating to contamination of goods and bomb hoaxes, an order may be made requiring the offender to pay to the state an amount to cover the costs incurred by an emergency services agency, such as Victoria Police or the Ambulance Service Victoria.^[83]

Views in submissions and consultations

9.99 Victoria Legal Aid and Forensicare submitted that restitution orders, compensation orders and orders for recovery under the Victims of Crime Assistance Act or cost recovery orders should not be available following a CMIA finding.^[84] The Criminal Bar Association agreed that compensation orders and orders for recovery under the Victims of Crime Assistance Act were not appropriate. However, they noted that restitution orders may be appropriate in some circumstances.^[85]

9.100 The Office of Public Prosecutions (OPP) submitted that compensation and restitution orders should be available upon a CMIA finding. The OPP noted that compensation and restitution orders are discretionary and so if such an order was inappropriate in the circumstances of a particular case, the judge could decline to make the order.^[86] A victim the Commission consulted with also supported some form of compensation for victims in CMIA matters.^[87]

Confiscation and forfeiture

9.101 Another consequence that can follow findings of guilt in the criminal process is an order for confiscation or forfeiture of property used in the commission of offences or owned by the offender.

9.102 The difference between confiscation and forfeiture has been described as follows:

‘forfeiture’ describes the procedure used to take away specific property belonging to an offender or someone else that is ‘tainted’ because it was either used in connection with, or was derived from, the commission of an offence. The term ‘confiscation’ is slightly broader and describes the procedure for taking away any financial benefits gained through criminal activity, through the making of a ‘pecuniary penalty order’ [citations omitted].^[88]

9.103 In Victoria, the Confiscation Act 1997 (Vic) governs the laws for forfeiture and confiscation of property following charges or convictions for Victorian offences. The scheme is primarily conviction-based, but depending on the type of offence, the mechanism for confiscation or forfeiture varies.

9.104 In summary, the Confiscation Act provides for the following orders:

• Discretionary court-ordered forfeiture—a discretionary court order for forfeiture of tainted property upon conviction of any indictable offence or a specified summary offence.^[89]

• Automatic forfeiture—an automatic order for forfeiture of property that has been ‘restrained’^[90] upon conviction of an ‘automatic forfeiture offence.’^[91]

• Civil forfeiture—a discretionary court order for forfeiture of property restrained on suspicion that it is ‘tainted property’. The order is available for property that was involved in the commission of a civil forfeiture offence. No finding of guilt or conviction is required for a civil forfeiture order to be made.^[92]

• Discretionary pecuniary penalty orders—a discretionary court order for a person to pay a sum of money to the state usually equivalent to the proceeds of crime upon conviction.^[93]

• Disposal orders—a discretionary court order upon conviction for the disposal or destruction of property relating to drugs or explosive substances or property with no value or lawful use.^[94]

Views in submissions and consultations

9.105 Forensicare submitted that punitive forfeiture orders should not apply to CMIA findings.^[95] The Criminal Bar Association observed that confiscation orders may be appropriate in some circumstances.^[96] Victoria Legal Aid submitted that orders in relation to confiscation and forfeiture should be discretionary in all circumstances following CMIA proceedings.^[97]

9.106 The Office of Public Prosecutions (OPP) was of the view that confiscation orders should be available following CMIA findings. However, to address any potential punitive effect that may be caused by confiscation in these circumstances, the OPP submitted that confiscation should occur only in relation to proceeds and benefits of the crime and also for the purpose of preserving property to satisfy potential restitution and compensation orders made under the Sentencing Act.^[98]

Licence cancellation and disqualification

9.107 Cancellation of and disqualification from obtaining a driver licence or suspension of a driver licence are other examples of consequences that can follow a conviction and/or sentence.

9.108 Section 89 of the Sentencing Act requires a court to cancel a driver licence and disqualify a person from obtaining one for at least 18 months if they are found guilty of certain motor vehicle offences.

9.109 The Road Safety Act 1986 (Vic) also provides for various categories of automatic and court-ordered licence suspension and disqualification, depending on the type of offence.^[99]

Views in submissions and consultations

9.110 The Criminal Bar Association supported the notion of ancillary orders that seek to manage risk in appropriate circumstances.^[100] Victoria Legal Aid and Forensicare submitted that orders that affected community safety (such as licence disqualification and cancellation) may be appropriate.^[101] The Office of Public Prosecutions submitted that licence cancellation and disqualification orders should be available upon a finding that the person committed the offence charged, but that further consideration should be given to whether these orders should be available upon a finding of not guilty because of mental impairment.^[102]

Sex offenders registration

9.111 Administrative consequences can follow a sentence for a criminal offence. One example is registration on a register of sexual offenders. The Sex Offenders Registration Act 2004 (Vic) sets out a scheme for the registration of ‘registrable offenders’ who have been found guilty of or sentenced for particular offences.^[103] Upon registration, registrable offenders are required to comply with the reporting obligations in the Sex Offenders Registration Act.^[104]

9.112 The purpose of the sex offenders registration scheme is to require sex offenders to provide information via reporting to the police on a regular basis in order to reduce the likelihood that they will re-offend and to facilitate the investigation and prosecution of future offences. The scheme also aims to prevent registered sex offenders from working with children.^[105]

9.113 All adults who are sentenced for Class 1 or 2 offences—broadly speaking, sexual offences against or involving children^[106]—automatically become registered sex offenders.^[107] There are no exceptions and the court has no discretion regarding registration.

9.114 In addition to the automatic registration of those offenders, the courts have discretionary powers to register other offenders by making a sex offender registration order.^[108]

9.115 The Sex Offenders Registration Act may apply to people who are subject to the CMIA. Depending on the type of offender and type of offence, registration consequences may flow from either a ‘finding of guilt’ or a ‘sentence’.^[109] A ‘finding of guilt’ includes a finding that a person is not guilty because of mental impairment and a finding in a special hearing that the person committed the offence charged.^[110]

9.116 A ‘sentence’ is defined to include a declaration that the accused is liable to supervision under Part 5 of the CMIA and an order that the accused be released unconditionally under the CMIA.^[111]

9.117 The Sex Offenders Registrations Act provides for alternative reporting arrangements for a person with a ‘disability’, defined as including a person who is a forensic patient or a forensic resident under the CMIA.^[112] A parent, guardian, carer or another nominated person can report on behalf of a registrable offender with a disability.^[113]

9.118 Disability is also a factor that can be taken into account by a court when considering an offence of failing to comply with reporting obligations.^[114]

9.119 The Commission examined issues regarding the registration of offenders in its reference on sex offenders registration. One of the Commission’s recommendations related to the circumstances in which a court should be permitted to decline to make a ‘registration order’ in respect of any person found guilty of any offence at any time. One of the circumstances was the court being satisfied on the balance of probabilities that the person would be unable to comply with the reporting obligations due to physical or other cognitive impairment.^[115]

Views in submissions and consultations

9.120 The Office of Public Prosecutions submitted that the registration of people subject to the CMIA was necessary for community protection.^[116] Victoria Legal Aid (VLA) supported the Commission’s recommendation in its report on sex offenders registration that a court should be permitted to decline to make a registration order where the person would be unable to comply with reporting obligations due to physical or other cognitive impairment. In addition, VLA submitted that courts should be permitted to decline to make a registration order where the person is already subject to a supervisory regime.^[117]

9.121 The Criminal Bar Association noted that in general the Sex Offenders Registration Act does not proceed on the basis of individual risk assessment. The Criminal Bar Association submitted that if the Commission’s recommendations were to be adopted and registration is made discretionary, the legislation could have a role to play in CMIA matters. However, the Criminal Bar Association did not support the automatic registration of people found unfit to stand trial or not guilty because of mental impairment. It noted:

It must be remembered that the reduction of the risk of further offending lies at the core of CMIA supervision orders in any case. Further, there may be an unfortunate circularity in the position that a person who is unfit or not guilty of offending should be placed on an order the breach of which is enforced by criminal sanction.^[118]

Forensic sample orders and forensic sample retention orders

9.122 Courts can make an order directing a person ‘to undergo a forensic procedure for the taking of a sample from any part of the body’ (‘forensic sample order’).^[119] An order may be made after a court finds a person guilty of a forensic sample offence.

9.123 When hearing an application for a forensic sample order, a court takes into account the seriousness of the circumstances of the forensic sample offence.^[120]

9.124 In addition, courts may make orders for forensic procedures to be conducted on people suspected of offences.^[121] Unless a ‘forensic sample retention order’ is later obtained, any sample taken in those circumstances must be destroyed in accordance with the Crimes Act 1958 (Vic).^[122]

9.125 In deciding whether to make a forensic sample retention order, the court takes similar considerations into account as when it decides to make a forensic sample order.^[123]

9.126 Forensic sample orders can be made in relation to findings of ‘not guilty by reason of mental impairment’.^[124] Forensic sample retention orders can also be made upon a finding of ‘not guilty by reason of mental impairment’.^[125]

9.127 The Commission notes that at present a forensic sample order can be made only in relation to offences specified in Schedule 8 of the Crimes Act other than offences heard and determined summarily.^[126] An amendment that will commence on 1 July 2014 will make all indictable offences ‘forensic sample offences’^[127] and so subject to an order.

Views in submissions and consultations

9.128 Victoria Legal Aid submitted that these orders should be discretionary in CMIA matters.^[128]

9.129 The Office of Public Prosecutions (OPP) noted that forensic sample orders are available upon a finding of not guilty by reason of mental impairment, but these are not available upon a finding at a special hearing that the person committed the offence charged. The OPP submitted that forensic sample orders should also be available upon a finding that the person committed the offence charged. ^[129]

The Commission’s conclusion

9.130 The Commission recognises that there are gaps and inconsistencies in the current law concerning the ancillary orders and consequences that may follow a CMIA finding, in contrast to the orders and consequences that may follow an ordinary criminal finding. For example:

• Restitution, compensation, cost recovery orders and orders for recovery of assistance paid under the Victims of Crime Assistance Act may only be made upon a ‘finding of guilt’ or ‘conviction’ under the Sentencing Act.^[130] As those terms are not defined, it is unclear whether such orders could be made following a CMIA finding.

• Court-ordered forfeiture orders, automatic forfeiture orders, pecuniary penalty orders and disposal orders may only be made upon a conviction.^[131] The definition of ‘conviction’ does not include a finding under the CMIA.^[132]

• Forensic sample orders and forensic sample retention orders are available after a finding of not guilty because of mental impairment but not after a finding in a special hearing that the accused committed the offence charged.

9.131 The Commission does not make recommendations in relation to each type of ancillary order or consequence that should follow a CMIA finding as these issues are not clearly within the scope of the terms of reference. However, the Commission considers that these are important issues that should be given further consideration.

9.132 In the following section, the Commission sets out a framework to inform a review of the relevant ancillary orders and consequences following a finding under the CMIA, in line with the principles and approach underpinning this report’s recommendations.

Adherence to the principles underlying the CMIA

9.133 Two key principles that underpin the CMIA are that a person should not be punished for an offence if they are not morally blameworthy for their behaviour (legitimate punishment) and that the community should be protected from the risk that may be posed because of a person’s mental condition (community safety).

9.134 In line with these principles the Commission considers that ancillary orders or consequences should, as far as possible:

• not be punitive, either in intention or effect^[133]

• be made or occur where necessary for the safety of the community.^[134]

Legitimate punishment

9.135 Whether or not an ancillary order or consequence is inconsistent with the principle of legitimate punishment depends on its intention and effect.

9.136 An ancillary order or consequence that has a punitive intention and effect is clearly in breach of the principle, and therefore, should not be available after a CMIA finding.

9.137 For example, the Commission considers that confiscation that relates to lawfully acquired property or that goes beyond the removal of the proceeds of crime is punitive^[135] and should not follow a CMIA finding.

9.138 However, other orders for confiscation or forfeiture that are directed solely at the proceeds of crime are not punitive in intention or effect, as they merely restore the status quo which existed prior to the occurrence of the conduct. Therefore, they may be appropriate following a CMIA finding.

9.139 Similarly, a restitution order which involves the return of property to its proper owner is not punitive in effect or intention. It results merely in the removal of property which the person never had a right to and thus restores the status quo. It may be appropriate following a CMIA finding.

9.140 However, it is not clear that ancillary orders or consequences not categorised as punitive but which may have a punitive effect, or those that are directed in response to the ‘fault’ would be appropriate following a CMIA finding.

9.141 For example, compensation orders have been viewed by courts to be a way for the state to facilitate a civil action to recover compensation by victims.^[136] These orders are not strictly construed as ‘punitive’. However, although such orders may not have a punitive intent, their effect on the person required to pay compensation may be punitive. Further, linking the order to the fault, and by extension, the criminal responsibility of the person, could be problematic when the person has been found not guilty because of mental impairment. It may not be a problem in cases where the person has been found unfit to stand trial and then found to have committed the offence in a special hearing.

9.142 The Commission is of the view that as a general principle, compensation should be available for all victims who meet the current criteria under the Sentencing Act. A victim of crime should not be disadvantaged in terms of their entitlement for compensation because the conduct that resulted in loss was committed by a person found under the law not to be responsible for that conduct. However, the Commission also considers that it is problematic for a person found not criminally responsible for offending conduct to be held liable for loss arising from that conduct and to incur a loss themselves where compensation is ordered.

9.143 Further consideration of this issue is required to find a solution that appropriately balances these two important considerations. One option could be the establishment of a compensation fund by the Victorian Government (similar to that available through the Victims of Crime Assistance Tribunal)^[137] that enables victims to be appropriately compensated in CMIA matters, while ensuring that the compensation does not result in a loss to the person where they have not been found responsible under the law for their conduct.^[138] Consideration of this issue could also be assisted by an examination of the civil liability for actions of people with a mental illness.^[139]

Community safety

9.144 The need to ensure community safety may justify the imposition of an order that may otherwise be considered punitive, such as licence disqualification.^[140] Fox and Freiberg have observed that such orders are mostly ‘punitive and akin to traditional sanctions’.^[141] However, disqualification also serves the purpose of protecting community safety.^[142]

9.145 The Commission considers that the protective nature of licence suspension or disqualification provisions may justify these orders being made following a finding under the CMIA.

9.146 Other examples of orders which protect community safety that may be appropriate to impose following a finding under the CMIA include:

• Orders under the Sex Offenders Registration Act—As the Commission observed in its report on sex offenders registration, registration is not a punishment for past crimes. Rather, the Sex Offenders Registration Act seeks to protect the community from the risk that those who have been sentenced for sexual offences in the past may re-offend in the future.^[143]

• Forensic sample orders and forensic sample retention orders—The main purpose of both orders is to address any risk the person may pose to the community in the future. Courts have, for example, considered the social utility of the order in deciding whether the order should be made.^[144]

A discretionary power to make orders

9.147 In the Commission’s view, any application of ancillary orders and consequences to findings under the CMIA should not be mandatory or be imposed automatically, but should instead be based on the court’s discretion.

9.148 Flexibility in the law is essential to accommodate the varying circumstances of people subject to the CMIA. For example in relation to the Sex Offenders Registration Act:

• A person’s mental condition could prevent them from complying with their reporting obligations.

• It may not be appropriate or necessary for a person already subject to the CMIA supervision regime (which would manage the risk to the community) to be on the Sex Offenders Register.^[145]

9.149 The Commission reiterates its recommendations in the report on sex offenders registration that:

• A person should only be included in the Sex Offenders Register by order of a court (and that automatic registration be discontinued).

• The court should be permitted to decline making a registration order if the person would be unable to comply with the reporting obligations due to a physical or other cognitive impairment.^[146]

Distinguishing between different CMIA findings

9.150 The Commission considers that it will be necessary to examine whether the orders and consequences that follow a finding of ‘not guilty because of mental impairment’ and ‘committed the offence charged’ should be distinguished where appropriate. However, the Commission agrees with the Office of Public Prosecution’s view that forensic sample orders should also be available upon a finding that the person committed the offence charged (or that the accused’s ‘conduct is proved on the evidence available’ under the Commission’s recommendation). There does not appear to be a reason for people who have been found to have committed the offence charged to be excluded from the forensic sample regime.

Recommended approach to reviewing ancillary orders and consequences following CMIA findings

9.151 The following recommendation sets out the Commission’s recommended approach to reviewing the ancillary orders and consequences that should follow a CMIA finding.

9.152 If there is an expansion of the types of ancillary orders and consequences that are available following a finding under the CMIA, this will have cost implications, including costs in imposing, managing and enforcing the orders and consequences.^[147]

Recommendation

75 The Victorian Government should review the ancillary orders and consequences that may follow a finding under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) with the aim of clarifying the ancillary orders or consequences that should or should not be available following a finding under the Act. In conducting any such review, the following approach should be taken:

(a) Ancillary orders and consequences following findings under the Act should, as far as possible, not be punitive in intention or effect and should be made where necessary for the safety of the community.

(b) Ancillary orders and consequences following findings under the Act should not be mandatory or imposed automatically, but should instead be founded on the court’s discretion.

(c) The ancillary orders and consequences that follow a finding that the ‘conduct is proved on the evidence available’ and a finding that the ‘conduct is proved but not criminally responsible because of mental impairment’ should be distinguished where appropriate.

Using information about findings under the CMIA for other purposes

9.153 Information about a finding under the CMIA can be used for other purposes, for example:

• It can form part of a person’s criminal record.

• It can arise in a working with children check.

• It can affect a person’s ability to obtain licences or accreditation required for employment in the public transport industry.

9.154 The Commission does not make any specific recommendations on how information concerning a finding under the CMIA should be used. However, in the following section, the Commission sets out its view on this issue that could inform a review on the use of CMIA findings.

Criminal records

9.155 A CMIA finding can appear on a person’s criminal record. Victoria Police’s information release policy for police checks implies that a finding of not guilty because of mental impairment will be included in a police check at least when they relate to serious offences committed by adults.^[148] Victoria Police indicated that such information will be released if the release is in the interest of community safety. In making a decision to release, Victoria Police considers the seriousness of the conduct, the circumstances surrounding the conduct and whether the information would be considered to be directly relevant to the purpose of the police check. Serious offences could include murder, attempted murder and intentionally causing serious injury.

9.156 Forensicare’s Patient Consulting Group observed:

There are some patients in the rehab units who are finding it hard to get jobs even when there is a verdict of not guilty because of mental impairment due to the results of police checks. This is affecting rehabilitation. Some patients had the understanding (based on the advice and assurance of their lawyers) that they would not have a criminal record if they went down the mental impairment path.^[149]

Working with children check

9.157 The purpose of a working with children check is to ‘assist in protecting children from sexual or physical harm by ensuring that people who work with or care for them have their suitability to do so checked by a government body’.^[150]

9.158 A finding of guilt for particular offences, particular sentences or sex offender registration can affect whether the Secretary to the Department of Justice will grant or even assess an application for a working with children check. Applications are categorised according to factors including whether a person:

• has been found guilty of certain offences

• is subject to sex offender registration

• is subject to particular sentencing or supervision orders.

9.159 For example, if a person has been found guilty of a sexual offence against a child, their application for a working with children check may not be assessed by the Secretary to the Department of Justice.^[151] The findings under the CMIA listed above are included in the definition of a ‘finding of guilt’.^[152]

9.160 The Office of Public Prosecutions and Victoria Police submitted that it is appropriate that information about a finding under the CMIA be available to assessments for working with children checks.

Accreditation or licence to provide transport services

9.161 Information about CMIA findings may also be required for an accreditation or a licence to provide certain transport services. For example, an application for accreditation to operate a commercial or local bus service must be refused if the person has been found guilty of particular types of offences. The findings under the CMIA are included in the definition of a guilty finding.^[153]

9.162 Information about a CMIA finding may also be taken into account in assessments of a person’s suitability to hold a driver licence in cases where a CMIA finding does not specifically exclude them from eligibility. This was highlighted in the case of XFJ v Director of Public Transport (Occupational Business Regulation).^[154] In that case, a person previously subject to the CMIA was refused accreditation by the Victorian Taxi Directorate on the grounds that it was not in line with the ‘public care objective’ in the Transport (Compliance and Miscellaneous) Act 1983 (Vic).^[155]

The Commission’s conclusion

9.163 When a person has been found to have committed the offence charged or found not guilty because of mental impairment under the CMIA, they are not held criminally responsible for that conduct. The Commission considers that if a person is not criminally responsible for their conduct, information about the finding should only be made available in exceptional circumstances, where it is in the public interest, having regard to the link between the CMIA finding and community safety.

9.164 The Commission acknowledges that there is a need to balance the person’s need to return to society against the public interest and community safety. There may be some cases where there is a compelling reason to make the information available, particularly in relation to eligibility to work with or provide services to vulnerable groups. Further, despite the person being found not criminally responsible for their conduct, it has been proved to the requisite standard that they engaged in the conduct.

9.165 When assessing the need for information about CMIA findings in particular circumstances, the Commission considers that the amount of time since the CMIA finding is relevant. The more distant a CMIA finding is, the less predictive the finding becomes of the person’s likely future conduct. This same principle underpins the spent conviction scheme, which aims to limit discrimination on the basis of certain convictions.^[156]

9.166 The Commission considers that more work should be done to develop an approach to addressing these issues based on the reasoning outlined above. A related issue discussed in Chapter 2 is the advice provided by defence practitioners to their clients on the consequences of a CMIA finding, including the possibility that it will affect their criminal record.^[157] As noted at [2.206], it is important that clients are informed about how a plea under the CMIA may affect them now and into the future.

Whether costs orders should be made against the prosecution

9.167 Victoria Police submitted that cost orders should not be made against the prosecution where a person has been found to have committed the offence (following a finding of unfitness) or not guilty because of mental impairment. Victoria Police noted that there have been circumstances where it has incurred the full costs of the process even though the physical elements of the offence have been proved and pursuing the matter was in the public interest and in accordance with the Office of Public Prosecution’s prosecutorial guidelines.^[158]

9.168 The Commission notes that the current costs order regime that operates in the Magistrates’ Court is broad enough to prevent costs from being awarded against the prosecution. Section 401 of the Criminal Procedure Act provides:

the costs of, and incidental to, all criminal proceedings in the Magistrates’ Court are in the discretion of the court and the court has full power to determine by whom, to whom and to what extent the costs are to be paid.

9.169 The Commission therefore does not see a compelling reason to create a specific provision on this issue. The Commission considers that the flexibility of determining costs on a case-by-case basis should be maintained.

Appeals in CMIA matters

9.170 Appeals provide an opportunity for a higher court to reconsider a decision of the lower court.^[159] The opportunity to reconsider a decision of the lower court serves several functions, which are set out in the consultation paper.^[160]

9.171 The opportunity to appeal in CMIA matters is particularly important, given the vulnerability of accused who are found unfit to stand trial and the serious consequences of being found unfit (and subsequently being found to have committed the offence charged) or found not guilty because of mental impairment. These consequences include the indefinite duration of supervision orders and the rigorous conditions to which the person is subject.

9.172 In the consultation paper, the Commission discussed the infrequency of appeals for CMIA matters.^[161] There appears to have been only one appeal of an unfitness finding since the introduction of the CMIA.^[162] The Criminal Bar Association observed that the Victorian Supreme Court Registry has not had a single appeal from a finding of not guilty because of mental impairment.^[163]

Expanding the appeal rights under the CMIA

Current appeal rights under the CMIA

9.173 If a jury makes a finding of unfitness to stand trial, a person has a right to appeal the finding of unfitness to the Court of Appeal.^[164] If the Court of Appeal allows the appeal, it must set aside the finding of unfitness and either refer the matter to the Supreme Court or County Court for trial or remit the matter for a rehearing of the unfitness investigation.^[165]

9.174 Following a special hearing, a finding that the person committed the offence is subject to appeal in the same manner as if they had been convicted of an offence.^[166]

9.175 A person may appeal a verdict of not guilty because of mental impairment to the Court of Appeal.^[167] If the Court of Appeal allows an appeal because it thinks that the verdict of not guilty because of mental impairment should not stand, or considers that the proper verdict should have been guilty of an offence, it may substitute the verdict for a verdict of guilty.^[168] Otherwise, if the Court of Appeal allows the appeal, it must set aside the verdict of not guilty because of mental impairment and either enter a verdict of acquittal or order a new trial. ^[169]

9.176 The Director of Public Prosecutions (DPP) may appeal to the Court of Appeal against an order for unconditional release. This right exists in both the unfitness and mental impairment processes. If the Court of Appeal declares the person liable to supervision, it can either remit the matter back to the original court with or without directions or it can make a supervision order.^[170] The CMIA does not provide a right for a person to appeal against a declaration that they are liable to supervision. However, a person has the right to appeal against a supervision order (either a custodial supervision order or non-custodial supervision order) once it has been made by the court.^[171] The DPP, Attorney-General, the Secretary to the Department of Human Services and the Secretary to the Department of Health can also appeal against a supervision order.

Views in submissions and consultations

9.177 The Commission did not receive many views in submissions or consultations about CMIA appeals. It was noted that the low number of appeals in this area could be due to a lack of resources and the inability of people under the CMIA to advocate for their rights, given their vulnerability.^[172]

9.178 The Criminal Bar Association identified three main barriers to appeals in CMIA matters in its submission:^[173]

• An appeal against a finding of not guilty because of mental impairment must be lodged prior to a supervision order being made—An appeal against a standard conviction must be lodged within 28 days of the person being sentenced,^[174] whereas an appeal against a verdict of not guilty because of mental impairment must be filed within 28 days of the day on which the verdict is recorded.^[175] The effect of this discrepancy is that a person found not guilty because of mental impairment must lodge an appeal prior to knowing the order that will be made against them.

• The Court of Appeal can impose a conviction in lieu of a finding of mental impairment—If the Court of Appeal allows an appeal from a finding of not guilty because of mental impairment, one option open to the court is to substitute the finding of not guilty because of mental impairment for a verdict of guilty. This provides a strong disincentive to appeal. For example, in cases where a person pursues an appeal on the ground that they should have been acquitted, having been found not guilty because of mental impairment and receiving a non-custodial supervision order, they risk being sentenced to imprisonment.

• Even if an appeal is successful, the likely remedy is a retrial, where an accused found not guilty because of mental impairment runs the risk of being found guilty and imprisoned—A person who has been ‘acquitted’ based on their mental impairment runs the risk of being convicted if their appeal is successful and the Court of Appeal orders a retrial. At the retrial, a jury may find the person guilty and they could face a term of imprisonment.

9.179 The following suggestions were made in relation to appeals in CMIA matters:

• There should be a right of appeal in the CMIA for people found fit to stand trial.^[176]

• Section 24AA of the CMIA should be amended so that an application for leave to appeal is commenced by filing a notice of application for leave to appeal within 28 days of the verdict or a declaration that a person is liable to supervision.^[177]

• There could be a right of appeal for both the accused and for the prosecution following an investigation into unfitness to stand trial by a judge.^[178]

The Commission’s conclusion

9.180 The infrequency of appeals in CMIA matters could reflect the fact that in a high proportion of these cases the parties agree with the conduct and outcome of the case (for example, they agree that the evidence establishes the defence of mental impairment)^[179] and therefore perceive no grounds of appeal. The Commission also considers that it is an indication that, on the whole, court processes and the safeguards in place are operating to produce appropriate outcomes. The Commission has nonetheless examined the issues raised in submissions and consultations to assess whether the appeal provisions in the CMIA operate in a way that is consistent with its underlying principles. In doing so, the Commission’s approach is to ensure that appeals achieve the following aims:

• People who are subject to a CMIA finding should have the opportunity to correct any significant errors in the initial decision so that the ‘right’ outcome is reached. This affords important protection against miscarriages of justice.^[180]

• Any processes established to give people who are subject to a CMIA finding the right to appeal should be fair and enable the adequate and effective review of the initial decision.^[181]

• People subject to a CMIA finding should have effective access to the right to appeal.^[182]

• The right to appeal a finding or order should be available regardless of which jurisdiction the person comes under.

Right to appeal a finding of fitness to stand trial

9.181 Although an accused can appeal a finding of unfitness to stand trial, the CMIA does not provide for a right to appeal a finding that a person is fit to stand trial.

9.182 In the Commission’s view, an accused should have the right to appeal a finding that they are fit to stand trial. The Commission considers a right to appeal in this instance will protect against situations where a person is subjected to the trial process when they should not have been, potentially then found guilty and subject to a criminal sentence. The Commission considers that there should also be a right to appeal from a finding on the accused’s fitness to plead guilty (see Recommendation 16) for the same reason.

9.183 A right to appeal a finding of fitness to stand trial or a finding of fitness to plead guilty could be enacted in several ways. The right to appeal could be inserted directly in the CMIA. This is the approach adopted in South Australia.^[183] Other Australian jurisdictions have not explicitly provided for this right.

9.184 Alternatively, the current law on appeals against conviction could be broad enough to provide for a right to appeal a finding of fitness to stand trial or fitness to plead guilty. In New Zealand, a ‘retrospective determination of fitness’ generally occurs by way of an appeal against conviction;^[184] for example, where the process of determining unfitness to stand trial was not properly undertaken, leading to a false finding of fitness.^[185]

9.185 In Victoria, a person convicted of an offence has a broad right to appeal against their conviction on any ground;^[186] for example, on the basis that there has been a substantial miscarriage of justice.^[187] The Court of Appeal could additionally be empowered to enter a finding of unfitness to stand trial or order a new investigation into unfitness, which would be similar to the New Zealand model.

9.186 On balance, the Commission considers that a right to appeal should be introduced directly into the CMIA in relation to findings of fitness. The alternative, of using the process of appeals against conviction will result in a postponement of the opportunity to consider any errors made in the finding of fitness. This would be a waste of resources and would unnecessarily prolong the process for accused and victims. Further, there may be evidentiary difficulties with raising the issue of unfitness to stand trial without contemporaneous evidence.^[188]

9.187 A CMIA right of appeal would provide a better opportunity to correct any significant errors in the initial decision, protect against miscarriages of justice and result in a better process for an effective review of the initial decision.

9.188 As discussed at [9.173], a person has a right to appeal a finding of unfitness to stand trial by a jury.^[189] In Chapter 7, the Commission recommended that investigations of unfitness to stand trial be conducted by a judge or a magistrate in all cases. In the Commission’s view, the right to appeal a finding of unfitness should be preserved, regardless of the change in the role of the jury. This would maintain the opportunity for the accused to identify any unfairness in the investigation of unfitness.

Recommendation

76 The Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) should be amended so that in a criminal proceeding in the County Court or the Trial Division of the Supreme Court, the accused may appeal to the Court of Appeal against:

(a) any finding on fitness to stand trial, and

(b) any finding on fitness to plead guilty.

Right to appeal a finding of not guilty because of mental impairment

9.189 As discussed at [9.178], a person found not guilty because of mental impairment must lodge an appeal prior to knowing the order that will be made against them. This is in contrast to a standard appeal against conviction, where the appeal must be lodged 28 days after a person is sentenced.

9.190 This raises the question of whether the right to appeal a CMIA finding should be the same as the right to appeal a criminal verdict. The CMIA provides that a finding that the accused committed the offence is subject to appeal in the same manner as if they had been convicted of an offence.^[190]

9.191 The Explanatory Memorandum to the Bill which introduced this right of appeal stated that the provision ‘follows, to the extent reasonably possible, the structure of the substantive appeals provisions’ in the Criminal Procedure Act.^[191] This indicates an intention for consistency as far as possible between both sets of appeal rights.

9.192 The Commission recognises that the decision to appeal is often made on the basis of whether the appeal could result in a better outcome. An argument could be made that an accused found not guilty because of mental impairment should be able to make the decision to appeal with the same level of information as a person found guilty—that is, with a full understanding of what the outcomes may be. However, as the consequences of a finding under the CMIA and a criminal verdict of guilty are not the same and serve different purposes, the Commission does not consider this argument compelling.

9.193 The objectives of the CMIA are therapeutic rather than punitive. It is not appropriate for defence counsel to consider only the duration of an order when deciding whether to appeal. To do so could undermine the therapeutic opportunities provided by the CMIA. The strategic considerations guiding counsel should be understood accordingly. Strategic decisions about appeals that would reduce the exposure of a person to the very treatment they require are contrary to the objectives of the CMIA and should be discouraged.

9.194 The current right to appeal a finding of not guilty because of mental impairment and the supervision order are sufficient to ensure an opportunity to adequately review errors in both the finding of not guilty because of mental impairment and the imposition of the supervision order, ensuring the ‘right’ outcome is reached in both circumstances. In addition, an extension of time for filing the notice of appeal can be granted.^[192]

9.195 Consequently, the Commission does not recommend amending the CMIA to allow an application for leave to appeal to be filed within 28 days after a declaration that a person is liable to supervision, as is the case in the Criminal Procedure Act.

Imposition of guilty verdict or retrial in place of not guilty because of mental impairment

9.196 The Criminal Bar Association submitted that the possible imposition of a guilty verdict (on appeal or at a retrial) in place of a finding of not guilty because of mental impairment acts as a disincentive to appealing the finding.^[193]

9.197 A finding of not guilty because of mental impairment is an ‘acquittal’ predicated upon a finding that the person is not liable for criminal punishment because they were mentally incapable of being responsible for their criminal act. As noted, it also potentially exposes the person to consequences based on an assumption that they require a therapeutic (as opposed to a punitive) response. An appeal from such an ‘acquittal’ is therefore directed at ascertaining whether the controls associated with a therapeutic response are justified.^[194] So understood, an appeal under section 24AA is directed at determining whether the act of deeming a person as deserving of a therapeutic response (by virtue of recording a verdict of not guilty because of mental impairment) is in error of law. If it is determined that there is an error of law and the person does not require a therapeutic response, what must then be ascertained is whether on the facts the person is deserving of a punitive response (by being found guilty) or no response (by being found not guilty).

9.198 While the Commission recognises that these outcomes may act as a disincentive, they do not result in a situation where the accused would be tried again for an offence they have been acquitted of. Further, the existing right to appeal still facilitates the adequate and effective review of any errors and a just result being reached.

De novo appeals from the Magistrates’ Court and Children’s Court

9.199 The Commission notes that if unfitness to stand trial was able to be determined and orders imposed by a magistrate in either the Magistrates’ Court or Children’s Court,^[195] these matters could be appealed, requiring the County Court to hear the matter afresh on appeal.

9.200 A person convicted of an offence by the Magistrates’ Court may appeal against their conviction to the County Court.^[196] This is conducted as a rehearing (‘de novo appeal’).^[197] This means that the entire hearing is conducted again. On hearing the de novo appeal, the County Court may exercise powers which are limited to the powers the Magistrates’ Court can exercise.^[198]

The Commission’s conclusion

9.201 Currently, when an accused pleads guilty in the Magistrates’ Court, but pursues a de novo appeal against their conviction in the County Court on the basis of the defence of mental impairment, the only option the County Court has if the defence is successful is to discharge the person. The County Court may only exercise the powers the Magistrates’ Court can exercise, and the only option currently available to the Magistrates’ Court is a discharge. This may not always be appropriate. The Commission has recommended that the Magistrates’ Court be given the power to make supervision orders following a finding of not guilty because of mental impairment, which would address this issue.^[199]

9.202 The current mechanisms for de novo appeals under the Criminal Procedure Act would apply to any new processes in the Magistrates’ Court and the Children’s Court with two minor amendments. First, if a de novo appeal follows the imposition of a supervision order, that order should be kept in place until the appeal is heard to ensure that the safety of the community is protected during the period before the appeal.

9.203 Second, to allow appeals on CMIA matters to the County Court, it will be necessary to clarify that the right to appeal includes a CMIA finding and supervision order. The Commission considers that the right to appeal a finding under this recommendation should include findings of fitness or unfitness to stand trial and findings of fitness or unfitness to plead guilty, consistent with Recommendation 76.

Recommendations

77 The Criminal Procedure Act 2009 (Vic) should be amended so that an appeal to the County Court against a supervision order does not result in a stay of any supervision order imposed on the person.

78 The Criminal Procedure Act 2009 (Vic) should be amended so that a person may appeal to the County Court against:

(a) a finding and supervision order made in the Magistrates’ Court under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) and in the Children’s Court, under the Children, Youth and Families Act 2005 (Vic), or

(b) a supervision order made in the Magistrates’ Court under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) and in the Children’s Court, under the Children, Youth and Families Act 2005 (Vic).

1. Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) s 7(3).

   ↑

2. Ibid s 11(4).

   ↑

3. Ibid s 14(4).

   ↑

4. Ibid s 12(5). If the accused remains unfit after the adjournment, but the adjournment was less than 12 months, a further adjournment may be ordered but only up to a total of 12 months: s 14(2).

   ↑

5. Ibid s 17(1).

   ↑

6. Ibid s 16(1).

   ↑

7. Ibid s 16(2)(a).

   ↑

8. Ibid s 18(3)(a).

   ↑

9. Ibid ss 18(3)(a)–(c).

   ↑

10. Ibid ss 10(1)(d), 11(1)(b).

    ↑

11. Data provided by the Victorian Institute of Forensic Mental Health (Forensicare) on report requests in the second quarter of 2013–14 (October to December 2013) indicates that only three reports on unfitness to stand trial were ordered by the County Court. All three related to matters where the person was in custody.

    ↑

12. Submission 8 (Office of Public Prosecutions).

    ↑

13. The defence of mental impairment can also be raised by the prosecution with leave of the trial judge under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) s 22(1).

    ↑

14. Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) s 12(5).

    ↑

15. Ibid s 14(5); Submission 21 (Criminal Bar Association).

    ↑

16. Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) ss 8(3)–(4).

    ↑

17. Submission 21 (Criminal Bar Association).

    ↑

18. Explanatory Memorandum, Crimes (Mental Impairment and Unfitness to be Tried) Bill 1997 (Vic) cl 8(2).

    ↑

19. Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) ss 11(4)(b), 12(2).

    ↑

20. Ibid s 3 (definition of ‘appropriate place’).

    ↑

21. Submission 19 (Forensicare).

    ↑

22. Submission 8 (Office of Public Prosecutions).

    ↑

23. Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) s 16(1).

    ↑

24. [2008] VSC 585 (18 December 2008).

    ↑

25. Ibid [35].

    ↑

26. Criminal Procedure Act 2009 (Vic) ss 3 (definition of ‘attend’), 330(3). Note that while section 3 defines ‘attend’ to include being brought to the court by audiovisual link, section 330 refers to section 3 as defining ‘attend’ to mean being physically present in court.

    ↑

27. Submissions 18 (Victoria Legal Aid); 19 (Forensicare); 6 (Associate Professor Andrew Carroll); 8 (Office of Public Prosecutions); 29 (Victorian Equal Opportunity and Human Rights Commission). Consultations 21 (Consultant psychiatrists, Forensicare); 53 (Head Office (Youth Justice, Forensic Disability, Child Protection and Senior Practitioner), Department of Human Services).

    ↑

28. Submission 21 (Criminal Bar Association).

    ↑

29. Ibid.

    ↑

30. Criminal Procedure Act 2009 (Vic) s 3 (definition of ‘related offences’).

    ↑

31. Schedule 1 clause 5 of the Criminal Procedure Act 2009 (Vic) provides for the joinder of charges.

    ↑

32. Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) s 17(1).

    ↑

33. New South Wales Law Reform Commission, People with Cognitive and Mental Health Impairments in the Criminal Justice System: Criminal Responsibility and Consequences, Consultation Paper No 6 (2010) 42 [2.35].

    ↑

34. Criminal Justice (Mental Impairment) Act 1999 (Tas) s 17(d).

    ↑

35. Victorian Parliament Community Development Committee, Inquiry into Persons Detained at the Governor’s Pleasure (1995) 183, Recommendation 33.

    ↑

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

    ↑

37. Submission 11 (Jamie Walvisch).

    ↑

38. Michael Barnett and Robert Hayes, ‘The Role of Victims in NSW Forensic Patient Proceedings’ (2009) 13 University of Western Sydney Law Review 7, 29.

    ↑

39. Ibid.

    ↑

40. Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) s 18(1).

    ↑

41. Ibid ss 18(4), 23.

    ↑

42. Ibid s 26(2).

    ↑

43. Ibid ss 19(1), 24.

    ↑

44. Ibid s 40(2).

    ↑

45. Submission 19 (Forensicare).

    ↑

46. Ibid.

    ↑

47. Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) ss 47, 41(1). These are discussed in more detail at [9.69]–[9.73].

    ↑

48. Submission 19 (Forensicare).

    ↑

49. Submission 8 (Office of Public Prosecutions).

    ↑

50. Ibid.

    ↑

51. Submission 21 (Criminal Bar Association).

    ↑

52. Ibid.

    ↑

53. Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) s 40(2).

    ↑

54. The Commission also recommends that the court have regard to whether a person poses an unacceptable risk of causing physical or psychological harm in deciding whether to declare the person liable to supervision or to unconditionally release the person: Recommendation 88.

    ↑

55. Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) s 41(1).

    ↑

56. Department of Health, Non-custodial Supervision Orders: Policy and Procedure Manual (2011) 20.

    ↑

57. Department of Human Services, Disability Services Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 Practice Guidelines 2007 (2007) 37.

    ↑

58. Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) s 41(1).

    ↑

59. Ibid ss 24(1)(c), (3).

    ↑

60. Ibid ss 26(3)–(4).

    ↑

61. Consultations 2 (Department of Human Services case managers, Barwon); 6 (Department of Human Services case managers, Disability Forensic Assessment and Treatment Service (DFATS) and Long Term Rehabilitation Program (LTRP)); 9 (Department of Human Services case managers, Gippsland and Latrobe).

    ↑

62. Consultation 2 (Department of Human Services case managers, Barwon). The eligibility criteria under the Disability Act require an assessment of the person before they are 18 years old because the criteria are based on an impairment in functioning before the age of 18. This could require tracing information back to school reports or doctors’ reports, which are not always easily accessible. It was also noted that there is little guidance on how to prepare a certificate of available services (in cases where a person has not had previous interaction with DHS) and how to perform an environmental scan as part of the requirements of the certificate.

    ↑

63. Consultation 6 (Department of Human Services case managers, Disability Forensic Assessment and Treatment Service (DFATS) and Long Term Rehabilitation Program (LTRP)).

    ↑

64. Consultation 2 (Department of Human Services case managers, Barwon).

    ↑

65. Consultation 9 (Department of Human Services case managers, Gippsland and Latrobe).

    ↑

66. Submission 19 (Forensicare).

    ↑

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

    ↑

68. Submission 18 (Victoria Legal Aid).

    ↑

69. Submission 19 (Forensicare).

    ↑

70. The court is required to consider a certificate of available services before making a supervision order ‘providing for a person to receive services in an appropriate place or from a disability service provider, the Secretary to the Department of Human Services or the Secretary to the Department of Health’: Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) s 26(3)(b). Further, the court must request a certificate of available services if it is considering imposing a supervision order providing for a person to receive services ‘from a disability services provider’ or ‘in an approved mental health service’: Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) s 47.

    ↑

71. Submission 21 (Criminal Bar Association).

    ↑

72. Consultation 47 (Magistrates’ Court roundtable).

    ↑

73. Submissions 21 (Criminal Bar Association); 30 (Victoria Police). Consultation 27 (Victoria Police—police prosecutors).

    ↑

74. Submission 19 (Forensicare).

    ↑

75. Submissions 21 (Criminal Bar Association); 19 (Forensicare); 18 (Victoria Legal Aid).

    ↑

76. Submission 19 (Forensicare).

    ↑

77. Submissions 8 (Office of Public Prosecutions); 21 (Criminal Bar Association).

    ↑

78. Sentencing Act 1991 (Vic) ss 84–5.

    ↑

79. Ibid ss 85A–85M.

    ↑

80. Ibid s 86.

    ↑

81. Within the meaning of the Victims of Crime Assistance Act 1996 (Vic).

    ↑

82. Sentencing Act 1991 (Vic) s 87A.

    ↑

83. Ibid ss 87C–87N.

    ↑

84. Submissions 18 (Victoria Legal Aid); 19 (Forensicare).

    ↑

85. Submission 21 (Criminal Bar Association).

    ↑

86. Submission 8 (Office of Public Prosecutions).

    ↑

87. Consultation 22 (Partner of a victim in a CMIA matter).

    ↑

88. Sentencing Advisory Council, Sentencing, Parole Cancellation and Confiscation Orders, Report (2009) 16.

    ↑

89. Confiscation Act 1997 (Vic) pt 3 div 1. Specified offences are listed in Schedule 1 and include a Schedule 2 offence.

    ↑

90. This means that a restraining order has been made on the property which prohibits an accused from disposing of or dealing with the property or any interest in property.

    ↑

91. Confiscation Act 1997 (Vic) ss 35–6. Automatic forfeiture offences are listed in Schedule 2.

    ↑

92. Ibid ss 36H, 37(1). Section 132 of the Confiscation Act provides that any question of fact to be decided by a court under that Act is to be decided on the balance of probabilities. Section 3 defines ‘tainted property’. Schedule 2 lists civil forfeiture offences.

    ↑

93. Ibid ss 58–9.

    ↑

94. Ibid ss 77–8.

    ↑

95. Submission 19 (Forensicare).

    ↑

96. Submission 21 (Criminal Bar Association).

    ↑

97. Submission 18 (Victoria Legal Aid).

    ↑

98. Submission 8 (Office of Public Prosecutions).

    ↑

99. See, eg, Road Safety Act 1986 (Vic) ss 28, 89C.

    ↑

100. Submission 21 (Criminal Bar Association).

     ↑

101. Submissions 18 (Victoria Legal Aid); 19 (Forensicare).

     ↑

102. Submission 8 (Office of Public Prosecutions).

     ↑

103. Sex Offenders Registration Act 2004 (Vic) s 6(1).

     ↑

104. Ibid pt 3.

     ↑

105. Ibid s 1.

     ↑

106. The age of the child victims to which the offences apply differs from one offence to another. See Victorian Law Reform Commission, Sex Offenders Registration, Information Paper (2011) Appendix A.

     ↑

107. Sex Offenders Registration Act 2004 (Vic) s 6. In addition, offenders who were ‘existing controlled registrable offenders’ immediately before 1 October 2004 were required to be retrospectively registered: ss 3 (definition of ‘existing controlled registrable offender’), 6(4).

     ↑

108. Sex Offenders Registration Act 2004 (Vic) s 11. The circumstances in which the courts can exercise this discretionary power are set out in more detail in Victorian Law Reform Commission, Review of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, Consultation Paper No 17 (2013).

     ↑

109. Automatic registration follows a sentence for a Class 1 or 2 offence: Sex Offenders Registration Act 2004 (Vic) s 6(1). The making of a sex offender registration order can follow a sentence or a finding of guilt: ss 11(1)–(2A).

     ↑

110. Ibid s 4(1)(d).

     ↑

111. Ibid s 3 (definition of ‘sentence’).

     ↑

112. Ibid ss 3 (definition of ‘disability’), 5(2).

     ↑

113. Ibid ss 23(4)–(5).

     ↑

114. Ibid s 46(2)(b).

     ↑

115. Victorian Law Reform Commission, Sex Offenders Registration, Final Report No 23 (2012) xxiv, Recommendation 17.

     ↑

116. Submission 8 (Office of Public Prosecutions).

     ↑

117. Submission 18 (Victoria Legal Aid).

     ↑

118. Submission 21 (Criminal Bar Association).

     ↑

119. Crimes Act 1958 (Vic) s 464ZF(2).

     ↑

120. Ibid s 464ZF(8).

     ↑

121. Ibid ss 464T(3), 464U(7), 464V(5).

     ↑

122. Ibid ss 464ZFB–464ZFC. Section 464ZFB is subject to s 464ZFD.

     ↑

123. Ibid s 464ZFB(2).

     ↑

124. Ibid s 464ZFAAA.

     ↑

125. Ibid s 464ZFB(1A).

     ↑

126. Ibid s 464ZFAAA(1), sch 8.

     ↑

127. Crimes Amendment (Investigation Powers) Act 2013 (Vic) ss 9–10.

     ↑

128. Submission 18 (Victoria Legal Aid).

     ↑

129. Submission 8 (Office of Public Prosecutions).

     ↑

130. Sentencing Act 1991 (Vic) ss 84(1), 85B(1), 86(1), 87D(1).

     ↑

131. Confiscation Act 1997 (Vic) ss 32(1), 35(1), 58(1)–(2), 77(1).

     ↑

132. Ibid s 4.

     ↑

133. Submissions 21 (Criminal Bar Association); 19 (Forensicare); 18 (Victoria Legal Aid).

     ↑

134. Submission 21 (Criminal Bar Association).

     ↑

135. In its discussion on proportionality in sentencing in relation to confiscation orders, the Sentencing Advisory Council noted that confiscation orders that go beyond the proceeds of crime are punitive: Sentencing Advisory Council, above n 88, 77.

     ↑

136. Director of Public Prosecutions v Energy Brix Australia Corp Pty Ltd (2006) 14 VR 345, 346.

     ↑

137. Victims of Crime Assistance Act 1996 (Vic) s 1.

     ↑

138. The Law Commission of New Zealand considered options for a state-funded compensation scheme and identified the advantages and disadvantages of each option: see Law Commission (New Zealand), Compensating Crime Victims, Report No 121 (2010) 25–7.

     ↑

139. See Adamson v Motor Vehicle Insurance Trust (1957) 58 WALR 56; Carrier v Bonham [2001] QCA 234 (22 June 2001). The issues are discussed in Nikki Bromberger, ‘Negligence and Inherent Unreasonableness’ (2010) 32 Sydney Law Review 411; Wendy Bonython, ‘The Standard of Care in Negligence: The Elderly Defendant with Dementia in Australia’ (2011) 10(2) Canberra Law Review 119.

     ↑

140. Richard Fox and Arie Freiberg, Sentencing: State and Federal Law in Victoria (Oxford University Press, 2nd ed, 1999) 536, citing Creed v Dudley [1984] WAR 344; Calder; Ex parte Attorney-General [1987] 1 Qd R 348, 356.

     ↑

141. Ibid.

     ↑

142. R v Rae (Unreported, Supreme Court of Victoria Court of Criminal Appeal, Young CJ, Crockett and Brooking JJ, 7 November 1984) 4 (Young CJ).

     ↑

143. Victorian Law Reform Commission, above n 115, 5.

     ↑

144. R v Lagona [1998] VSC 220 (17 December 1998) [27].

     ↑

145. See Victorian Law Reform Commission, above n 115, xxii, Recommendation 4.

     ↑

146. Ibid xxii–xxiii.

     ↑

147. Victoria Police noted in its submission that its resources may be affected to deal with breaches of ancillary orders and to initiate any subsequent charges or consequences.

     ↑

148. Victoria Police, Information Release Policy—National Police Certificate (Information Sheet, 2013).

     ↑

149. Submission 2 (Forensicare Patient Consulting Group).

     ↑

150. Working with Children Act 2005 (Vic) s 1(1).

     ↑

151. Ibid ss 12–14.

     ↑

152. Ibid s 4(d).

     ↑

153. Bus Safety Act 2009 (Vic) ss 3, 27.

     ↑

154. [2008] VCAT 2303 (31 October 2008). The matter was appealed in Director of Public Transport v XFJ [2011] VSCA 302 (11 October 2011).

     ↑

155. Victorian Law Reform Commission, above n 108, 156–7.

     ↑

156. National Crime Check, Spent Convictions Information <https://www.nationalcrimecheck.com.au/police-checks- individuals/resources/spent_convictions_information>.

     ↑

157. The Commission recommends the development of practice information for lawyers acting in criminal matters involving accused with a mental illness, intellectual disability and other cognitive impairment (Recommendation 11).

     ↑

158. Submission 30 (Victoria Police).

     ↑

159. Peter D Marshall, ‘A Comparative Analysis of the Right to Appeal’ (2011) 22 Duke Journal of Comparative & International Law 1.

     ↑

160. Victorian Law Reform Commission, above n 108, 82.

     ↑

161. Ibid 82–3.

     ↑

162. Kerri Eagle and Jonathon Adams, ‘Appealing a Mental Illness Verdict in New South Wales’ (2014) 21(1) Psychiatry, Psychology and Law 67; R v NCT [2009] VSCA 240 (23 October 2009) [6], [7].

     ↑

163. Submission 21 (Criminal Bar Association). The reasons for this are explored later in this chapter at [9.178].

     ↑

164. Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) s 14A(1).

     ↑

165. Ibid s 14A(6).

     ↑

166. Ibid s 18(3)(c).

     ↑

167. Ibid s 24AA(1).

     ↑

168. Ibid s 24AA(7).

     ↑

169. Ibid s 24AA(8).

     ↑

170. Ibid ss 19A(2)–(3), 24A(2)–(3).

     ↑

171. Ibid s 28A(1).

     ↑

172. Submissions 13 (Australian Community Support Organisation Inc.); 4 (The Australian Clinical Psychology Association).

     ↑

173. Submission 21 (Criminal Bar Association).

     ↑

174. Criminal Procedure Act 2009 (Vic) s 275(1).

     ↑

175. Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) s 24AA(2).

     ↑

176. Submission 18 (Victoria Legal Aid).

     ↑

177. Submission 21 (Criminal Bar Association).

     ↑

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

     ↑

179. See discussion in Chapter 7 at [7.67].

     ↑

180. Marshall, above n 159, 3.

     ↑

181. Ibid 2.

     ↑

182. Ibid 21. Recommendation 61 in Chapter 8 seeks to ensure that if there are any gaps in effective access by people under the CMIA, this is picked up and addressed in a gap analysis of advocacy services to ensure that all people subject to the CMIA have access to advocacy services.

     ↑

183. Criminal Law Consolidation Act 1935 (SA) s 269Y(4)(b).

     ↑

184. Warren Brookbanks, ‘Raising the Issue of Unfitness to Stand Trial Post-conviction’ (Presentation at the 33rd Australian and New Zealand Association of Psychiatry, Psychology and Law Annual Congress, Adelaide, 30 November 2013).

     ↑

185. Joseph Allan Sakdalan and Sabine Visser, ‘”Are Defendants Found Fit to Stand Trial Really Fit?”: Human Rights Issues in Fitness to Stand Trial’ (Presentation at the 33rd Australian and New Zealand Association of Psychiatry, Psychology and Law Annual Congress, Adelaide, 28 November 2013).

     ↑

186. Criminal Procedure Act 2009 (Vic) s 274.

     ↑

187. Ibid s 276.

     ↑

188. R v Erskine [2009] EWCA Crim 1425 (14 July 2009) [89].

     ↑

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

     ↑

190. Ibid s 18(3)(c).

     ↑

191. Explanatory Memorandum, Criminal Procedure Bill 2008 (Vic) cl 370.

     ↑

192. Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) s 76C.

     ↑

193. Submission 21 (Criminal Bar Association).

     ↑

194. Ibid.

     ↑

195. See Chapters 5 and 6.

     ↑

196. Criminal Procedure Act 2009 (Vic) s 254.

     ↑

197. Ibid s 256(1).

     ↑

198. Ibid s 256(2).

     ↑

199. See Recommendations 30 and 32 in Chapter 5.

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