2. Improving the systemic operation of the CMIA

Introduction

  1. 2.1 The terms of reference and supplementary terms of reference for the review of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) (‘CMIA’) raise issues that cut across criminal courts in multiple jurisdictions in Victoria, as well as across multiple systems that function within the justice, mental health, disability and youth sectors.
  2. 2.2 In conducting the review, the Commission has mapped the operation of the CMIA and identified areas where there are threshold issues that affect the operation of the CMIA as a whole or across multiple areas of operation.
  3. 2.3 In this chapter, the Commission sets out its findings regarding the broad operation of the CMIA and makes overall recommendations that lay the path for detailed recommendations or are designed to bring about system-wide operational change.
  4. 2.4 The chapter commences with the Commission’s holistic view of how the CMIA is currently operating. The Commission uses available data on cases under the CMIA to map its current operation and identifies, from the input received in submissions and consultations, what works well and where change is required. The Commission makes two recommendations to improve the way in which data is recorded in relation to CMIA cases to ensure better information can be ascertained about the continued operation of the legislation.
  5. 2.5 The Commission discusses the key issues, identified in submissions and consultations, that flow across a range of areas of the CMIA’s operation or affect the operation of the Act in a systemic way.
  6. 2.6 The chapter then details the Commission’s overall approach to addressing these systemic issues through 12 recommendations to change the way the CMIA operates across multiple jurisdictions and sectors. These threshold recommendations provide the foundation for the changes to discrete areas of operation detailed in Chapters 3–11 that follow.

 

  1. 2.7 The recommendations seek to bring about changes in how the CMIA currently operates by:
  • enshrining a set of statutory guiding principles for decision makers under the CMIA, including a specialised set of statutory principles for decisions made in relation to young people1
  • enshrining a statutory principle and additional measures targeted at addressing unreasonable delay
  • ensuring there is education, training and raised awareness of people who work under the CMIA provisions to support the effective operation of the Commission’s recommended changes.
  1. 2.8 Finally, the Commission presents four case scenarios to illustrate, from a holistic perspective, the changes and improvements to the operation of the CMIA under the new pathways created by its recommendations.

Overview of the CMIA

  1. 2.9 Section 1 of the CMIA sets out its purposes as follows:

(a) to define the criteria for determining if a person is unfit to stand trial;

(b) to replace the common law defence of insanity with a statutory defence of mental impairment;

(c) to provide new procedures for dealing with people who are unfit to stand trial or who are found not guilty because of mental impairment.

  1. 2.10 The CMIA sets out the law and procedure regarding:
  • the process and criteria for determining if a person is unfit to stand trial
  • the process and criteria for the statutory defence of mental impairment (which replaced the common law defence of insanity)
  • the consequences of findings of unfitness to stand trial and of not guilty because of mental impairment
  • the supervision and management of people found unfit to stand trial or not guilty because of mental impairment.

 

  1. 2.11 The CMIA is structured around 10 primary parts, which relate to the key aspects of the legislation.
  • Part 1: preliminary matters—the purposes of the CMIA, definitions and the proceedings and courts where the CMIA applies.
  • Part 2: unfitness to stand trial—the process and criteria for determining whether an accused is unfit to stand trial, the findings that can be made and appeals in relation to unfitness to stand trial.
  • Part 3: special hearings—the process for the hearing that occurs after an accused has been found unfit to stand trial, to determine whether he or she committed the offence charged, the findings that can be made and appeals in relation to special hearings.
  • Part 4: defence of mental impairment—the process and test for determining whether an accused is not guilty of an offence because of mental impairment, the findings that can be made and appeals in relation to the mental impairment defence.
  • Part 5: supervision of people under the CMIA—supervision orders, the process for making supervision orders, the process for reviewing, varying and revoking supervision orders and the parties that are represented in the supervision and review processes.
  • Part 6: principles—the principles on which the court is required to act in making, reviewing, varying and revoking supervision orders, information about the supervised person’s mental condition and available treatment services and information from family members and victims.
  • Part 7: leave of absence—types of leave for people subject to a supervision order under the CMIA, processes for applying for, granting, suspending and revoking leave, the bodies and parties involved in leave processes and principles that apply to granting leave.
  • Part 7A: interstate transfer—provisions that apply to the transfer of people subject to a supervision order from Victoria to other states and from other states to Victoria.
  • Part 7B: absconders—provisions that apply to people subject to a supervision order who abscond to Victoria from another state.
  • Part 8: general—requirements for giving notice of hearings to family members and victims, suppression orders and other procedural matters.

Mapping the systemic operation of the CMIA

  1. 2.12 This section maps out the current operation of the CMIA in Victoria, using available
    data on cases under the CMIA and information gathered in consultations
    and submissions.

Data on the current operation of the CMIA

Available data provided to the Commission

  1. 2.13 The Commission requested and received significant and helpful information regarding the people who are subject to the CMIA and cases in which unfitness to stand trial and the defence of mental impairment are raised.

 

  1. 2.14 This information includes:
  • data provided by the Sentencing Advisory Council from its higher courts sentencing database on cases in the higher courts that had been determined and resulted in a finding under the CMIA. The data covered a 12-year period from 1 July 2000 to
    30 June 2012. Access was also provided to the judgments for these cases, where such judgments were available, which were manually analysed by the Commission2
  • data provided by the Victorian Institute of Forensic Mental Health (Forensicare) on the number of requests for reports by the Office of Public Prosecutions under the CMIA3
  • data provided by the Department of Human Services on the people subject to supervision orders as at 30 June 20134
  • data on the people supervised by Forensicare on supervision orders as at 30 June 2013 and on the number of hearings relating to the review of supervision orders and granting of extended leave under the CMIA5
  • approximate data provided by the Department of Human Services and the Office of Public Prosecutions on 25 young people who were known to each organisation to have had some involvement in the current CMIA processes over the period from
    1 July 2012 to 31 October 20136
  • data provided by the Children’s Court Clinic on the number of assessments for unfitness to stand trial.
  1. 2.15 This information has materially assisted the Commission to understand how the CMIA operates and to identify the areas where change is required to improve the operation of the Act.

Gaps in the data

  1. 2.16 Information was not available to represent a complete picture of the cohort of people dealt with under the CMIA in either the Supreme Court or County Court or where there have been issues of unfitness or the defence of mental impairment raised in the Magistrates’ Court or Children’s Court.
  2. 2.17 Information was not available on the incidence and outcomes of CMIA cases in a way that enables identification of the following:
  • the number of cases in which an issue was raised regarding unfitness to stand trial and/or the defence of mental impairment
  • in cases where an issue regarding unfitness to stand trial and/or the defence of mental impairment was raised, what findings were made as to unfitness and criminal responsibility
  • the number of cases in the Magistrates’ Court or Children’s Court where an issue as to unfitness to stand trial was raised and the charges were withdrawn by Victoria Police (due to a current lack of process to deal with the charges in those jurisdictions)

 

  • the number of cases in the Magistrates’ Court or Children’s Court where the defence of mental impairment was raised and the accused was found not guilty because of mental impairment and discharged
  • the socio-demographic and health characteristics of people who raise unfitness to stand trial or the defence of mental impairment and become subject to a finding and/or supervision under the CMIA
  • comprehensive data on the length of time that people subject to CMIA supervision orders are supervised by either the Department of Health or the Department of Human Services prior to being released.
  1. 2.18 The reasons why this information is not currently available include:
  • The processes involved operate in a very complex manner and involve multiple organisations, including Victoria Police, Victoria Legal Aid, the Office of Public Prosecutions, four jurisdictions of Victorian courts, the Department of Justice, Forensicare, the Department of Health and the Department of Human Services.
  • Some information regarding cases under the CMIA is not routinely recorded or collected by organisations involved in the operation of the CMIA. For example, over the review period Victorian courts did not record the particular findings made when there is an issue as to unfitness or the defence of mental impairment.
  • Some information regarding cases under the CMIA relies on individual practices. For example, practices of police prosecutors differ in recording whether charges are withdrawn due to unfitness or mental impairment.
  • Some information is solely reliant on anecdotal evidence. For example, the prevalence of cases where a person has chosen to plead guilty rather than raise the defence of mental impairment or has proceeded through a usual criminal proceeding rather than raise the issue of unfitness.
  1. 2.19 The Commission has formed the view that the gaps in the data on the operation of the CMIA and people who raise issues of unfitness or the defence of mental impairment should be addressed through two recommendations.
  2. 2.20 In making these recommendations, the Commission notes the recommendations to improve data collection made by the Victorian Parliament Law Reform Committee in its Inquiry into Access to and Interaction with the Justice System by People with an Intellectual Disability and their Families and Carers.7

Recommendations

1 All courts in Victoria should make changes to their recording practices for criminal cases to ensure that issues, findings and outcomes in relation to unfitness to stand trial and the defence of mental impairment under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) are recorded and are capable of being analysed in a consistent way.

2 Victoria Police should make changes to the procedure for recording withdrawals due to issues of unfitness to stand trial or the defence of mental impairment to ensure more accurate measurement of the matters which do not proceed under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic).

 

How is the CMIA currently operating?

How prevalent are CMIA cases compared with other criminal cases?

  1. 2.21 In its Review of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997: consultation paper (‘the consultation paper’), the Commission described the context in which the CMIA operates in the criminal justice system and the strict ambit of its operation within the population of people with mental conditions who come into contact with the criminal justice system. Such mental conditions can include mental illness, intellectual disability or other cognitive impairments, such as acquired brain injury or fetal alcohol spectrum disorder.8
  2. 2.22 It has been clearly established that people with such conditions are over-represented in the criminal justice system in jurisdictions, including Australia, the United Kingdom and the United States. There is evidence of over-representation in Victorian prisons of people with mental conditions, including acquired brain injury,9 intellectual disability10 and mental illness.11 Evidence has also emerged in other Australian jurisdictions, such as New South Wales, of the over-representation of people with mental conditions at various stages of the criminal justice system, including prisons and contact with police, and of the over-representation of young people with mental conditions in the juvenile justice population.12
  3. 2.23 The CMIA applies to a very particular group of the larger cohort of people with mental conditions who come into contact with the criminal justice system—people who are charged with an offence and who have a mental condition that:
  • impairs their capacity to stand trial for the charge according to one of the criteria for unfitness to stand trial, and/or
  • satisfies the requirements for the defence of mental impairment and renders them not criminally responsible for the offending behaviour.
  1. 2.24 The information available to the Commission suggests that such cases make up a relatively small proportion of the overall cases that proceed through the criminal courts in Victoria.
  2. 2.25 Over a 12-year period from 2000–01 to 2011–12, there were 159 cases determined under the CMIA in the higher courts (the Supreme Court and County Court).13 That is, cases where there was an issue of unfitness to stand trial and/or mental impairment that resulted in a finding and an order being made (either an unconditional release or a custodial or non-custodial supervision order).
  3. 2.26 In comparison to the number of cases that are finalised by way of a sentence (following a plea or finding of guilty) in the criminal courts under non-CMIA processes, CMIA cases are very infrequent.
  4. 2.27 In 2011–12, the Supreme Court and County Court ordered sentences in 1,939 cases.14 In that same year, the Supreme Court and County Court made orders in 19 CMIA cases. CMIA cases therefore made up only approximately one per cent of the total cases that resulted in a sentence or a CMIA order in the higher courts.

 

  1. 2.28 As a further comparison, the Magistrates’ Court ordered sentences in 80,900 cases in this same period.15 In the Children’s Court in the same year, 4,533 cases were finalised by way of a sentence or other disposition after a finding of guilt.16 These statistics reflect that there is a significantly larger volume of cases that are determined in the Magistrates’ Court involving relatively less serious crimes and quicker disposal methods. In the higher courts matters are more serious and complex and can involve a jury trial to determine criminal responsibility, and hence take more time to finalise. The Children’s Court deals with matters that involve young people and a wider range of offences than the Magistrates’ Court in terms of seriousness and complexity, and these require a
    specialised approach.

How prevalent are issues of unfitness to stand trial compared with mental impairment?

  1. 2.29 Whether the issue of unfitness to stand trial and the defence of mental impairment require examination in a criminal case is dependent on the timing of the mental condition.
  • If an accused has a mental condition at the time of the trial, the issue that is to be determined is whether they are unfit to stand trial.
  • If an accused had a mental condition at the time of the alleged offence, the issue that is to be determined is whether they committed the offence as charged or whether they have a defence of mental impairment.
  1. 2.30 It is therefore important, in considering the operation of the CMIA, to distinguish between people who go down the CMIA pathway after raising unfitness to stand trial and those people where there is no issue as to unfitness and who proceed under the CMIA solely by raising the defence of mental impairment. In some cases, both issues can be present.
  2. 2.31 An accused can become subject to the CMIA in three possible scenarios:
  • Scenario 1—issue of unfitness alone:there is an issue about whether the accused is unfit to stand trial but the defence of mental impairment is not raised to the charge.
  • Scenario 2—issues of unfitness and defence of mental impairment: there is an issue about whether the accused is unfit to stand trial and the defence of mental impairment is raised to the charge.
  • Scenario 3—defence of mental impairment alone: there is no issue about whether the accused is unfit to stand trial but the defence of mental impairment is raised to the charge.
  1. 2.32 The limited information available to the Commission suggests that Scenario 2 may be the most prevalent overall in terms of issues raised. Forensicare received 61 requests for reports under the CMIA from the Office of Public Prosecutions17 in 2012–13.18 Of these, 27 requests (44.3 per cent) were for reports about unfitness and mental impairment. A further 18 requests (29.5 per cent) were for issues of fitness alone. Fifteen report requests were made for mental impairment alone (24.6 per cent).19 In the first two quarters of the following year (2013–14), there were nine report requests for unfitness and mental impairment, nine for unfitness alone and seven for mental impairment alone.
  2. 2.33 Approximate information available in relation to young people under the CMIA indicates that the most prevalent circumstance is one where there is an issue of unfitness alone due to intellectual disability.20

How does the CMIA operate in the higher courts?

  1. 2.34 The provisions of the CMIA largely apply to trials and proceedings for indictable offences in the higher courts (the Supreme Court of Victoria and County Court of Victoria).21
Orders
  1. 2.35 Figure1 shows the number of orders for unconditional release, custodial supervision orders and non-custodial supervision orders imposed in the Supreme Court and County Court over the period 2000–01 to 2011–12.22 It shows that there has been a small but gradual increase in the number of cases where orders have been imposed under the CMIA.
  2. 2.36 It is very rare for the court to release a person unconditionally under the CMIA. There were only 10 such orders over the past 12 years. The remaining 149 orders were for custodial or non-custodial supervision. Overall, there were more non-custodial supervision orders (102) imposed over the 12-year period than custodial supervision orders (47).

Figure 1: Number of orders imposed under the CMIA 

Source: Sentencing Advisory Council, higher courts sentencing database

Figure 1: Number of orders imposed under the CMIA in the higher courts by order type, 2000–01 to 2011–12

People subject to orders
  1. 2.37 The vast majority of people subject to supervision orders from 2000–01 to 2011–12 were males (131, 82.4 per cent), with the remaining 28 orders imposed on females.
  2. 2.38 The majority of people in cases under the CMIA in the higher courts were adults. The average age was 38.5 years. At the time the order was imposed, 93.1 per cent were aged 21 years or older. The oldest person made subject to a CMIA order was 85 years old and the youngest two were 17 years old when the order was imposed.
  3. 2.39 Eleven individuals were under 21 years old at the time the order was imposed (see
    Table 5 in Appendix D). It is likely that in most of these cases, these young people were children (under 18 years old) at the time of the offences, given the time it can take for a matter to progress through the court system and be heard, determined and an order imposed in a higher court.23 As recently noted by Victoria Legal Aid, ‘it is not unusual for trials in Victoria to occur up to two or three more years after the alleged offences were detected or committed’.24 It can take an average of 14 months for a matter to be finalised in Victoria from date of initiation in a summary court to date of finalisation in a higher court.25 The Productivity Commission’s latest report on government services indicates that as at 30 June 2013, 18.1 per cent of non-appeal cases in the County Court26 were older than 12 months and 3.2 per cent were older than 24 months.27
  4. 2.40 The average age for people who were unconditionally released was higher than for custodial supervision orders and non-custodial supervision orders (although there were only 10 people who were unconditionally released).28 Analysis of the five available judgments in these cases showed that four cases where the person was unconditionally released involved elderly people who were charged with historical sex offences and found unfit to stand trial due to the onset of dementia.
Offences
  1. 2.41 The most common principal offences in cases under the CMIA over the 12-year period,
    in descending order of frequency, were:
  • intentionally causing serious injury (34 orders, 21.4 per cent)
  • murder (25 orders, 15.7 per cent)
  • attempted murder (14 orders, 8.8 per cent)
  • indecent act with a child under 16 years (12 orders, 7.5 per cent).
  1. 2.42 This is consistent with the observation made in a study of 146 CMIA cases involving people found not guilty because of mental impairment, from the commencement of the CMIA to mid-2006 (including people transitioned over from the ‘Governor’s pleasure’ regime). The study observed that while the offences in such cases tended to be a ‘violent act, usually murder against a family member or close acquaintance’, there was now a ‘substantial minority of cases [involving] minor or non-violent offences’.29
  2. 2.43 The offence distribution data on the CMIA cases from 2000–01 to 2011–12 (Table 6 in Appendix D) shows that while the most serious offences such as murder, attempted murder and intentionally causing serious injury make up the majority of cases, a substantial minority (41.5 per cent) of cases involved indictable offences triable summarily. Such cases have involved more minor and non-violent offences, such as theft, assault and obtaining financial advantage by deception. Figure 1 also shows that there have been more non-custodial supervision orders in the latter six years than in the first six years of the 12-year period, which may indicate that it is more common for people to become subject to the CMIA for less serious offences than it has been in previous years.
  3. 2.44 A custodial supervision order was imposed in 88.0 per cent of cases involving murder and in 64.3 percent of cases involving attempted murder. A non-custodial supervision order was more prevalent for the offence of causing serious injury intentionally (73.5 per cent) and for almost all other offence types. The distribution of orders according to offence types is discussed further in Chapter 10 in the context of nominal terms imposed on supervision orders.
Jurisdiction
  1. 2.45 More CMIA cases are heard in the County Court than in the Supreme Court.
  2. 2.46 The majority of cases under the CMIA from 2000–01 to 2011–12 were heard and determined in the County Court (70.4 per cent, 112 cases). The remaining 47 cases were heard and determined in the Supreme Court (29.6 per cent).
  3. 2.47 Forensicare received 48 requests for reports from the Office of Public Prosecutions in 2012–13 for matters in the County Court compared with eight in the Supreme Court. There were also more reports requested for matters in the County Court in the first two quarters of 2013–14, with 14 requested in that jurisdiction compared with four reports requested for matters in the Supreme Court.30

How does the CMIA operate in the Magistrates’ Court and Children’s Court?

  1. 2.48 The CMIA currently has limited application in courts of summary jurisdiction—the Magistrates’ Court of Victoria and the Children’s Court of Victoria. The defence of mental impairment applies to summary offences and indictable offences heard and determined summarily in the Magistrates’ Court and the Children’s Court.31 The only outcome that can occur after a finding of not guilty because of mental impairment in the summary jurisdiction is for the person to be discharged. The unfitness to stand trial process does not apply in the Magistrates’ Court or the Children’s Court. If a person appears in either court on an indictable offence and the question of fitness arises, the matter must go through committal and transfer to the County Court in order to proceed by way of an investigation of unfitness.
  2. 2.49 There was no data equivalent to that on the CMIA in the higher courts available on the operation of the CMIA within the limited jurisdiction of the Magistrates’ Court and Children’s Court.

 

  1. 2.50 Therefore, the Commission was not able to ascertain the volume of cases under the CMIA’s current operation in those courts, including cases:
  • involving summary offences where unfitness to stand trial or the defence of mental impairment was raised and charges were withdrawn by Victoria Police32
  • where the accused was found not guilty because of mental impairment and was discharged
  • where the issue of unfitness to stand trial and/or the defence of mental impairment was raised and committal and transfer of the matter to a higher court was required due to the lack of powers of the Magistrates’ or Children’s Court to determine unfitness and make orders.
  1. 2.51 Report requests provide some indication of the number of matters in the summary jurisdiction where unfitness or the defence of mental impairment were raised.
  2. 2.52 In the Children’s Court, in 2012–13, the Children’s Court Clinic received four referrals for an assessment of unfitness to stand trial (of a total 262 criminal referrals).33
  3. 2.53 Forensicare received five report requests for matters in the Magistrates’ Court in 2012–13, and seven requests were received in the first two quarters of 2013–14.34
  4. 2.54 Information gathered in submissions and consultations suggests that it is more common for issues of unfitness to be raised in the summary jurisdiction than the defence of mental impairment for both adults and young people.
  5. 2.55 The Office of Public Prosecutions (OPP) provided information to the Commission on the number of cases that it had been involved in or had been asked by Victoria Police to provide advice35 involving adults and children in the summary jurisdiction where issues of unfitness or the defence of mental impairment had been raised. These figures are approximate only and do not provide a complete picture of the matters in which issues
    of unfitness or the defence of mental impairment may have arisen.
  • From 15 July 2008 to 14 November 2013, the OPP provided advice in approximately 48 matters involving adults.
  • From 1 July 2012 to 31 October 2013, the OPP provided advice in approximately
    21 matters involving young people charged with offences as children.

How many CMIA matters determined in the County Court were within the jurisdiction of the Magistrates’ Court or the Children’s Court?

  1. 2.56 A key issue for the Commission in this review is whether the application of the CMIA should be further extended in the Magistrates’ Court and Children’s Court. Accordingly, the Commission has paid particular attention to the cases that proceeded in the higher courts under the current CMIA provisions that could have proceeded in the Magistrates’ Court or Children’s Court if either court had the requisite powers under the CMIA. In relation to this issue, the Commission has focussed in particular on matters dealt with in the County Court. This is because cases involving offences that could be dealt with in the Magistrates’ Court or Children’s Court would generally be committed to the County Court for disposition, rather than the Supreme Court, which has jurisdiction over the most serious criminal offences, such as murder.

 

  1. 2.57 Analysis of the 159 cases dealt with in the higher courts under the CMIA from 2000–01
    to 2011–12 indicated that 59 cases (37.1 per cent of all higher court cases) were determined in the County Court and involved a principal offence (or a form of that offence)36 that was an indictable offence triable summarily. Therefore, approximately half of the 112 cases over the 12-year period that proceeded in the County Court could have been heard and determined in the Magistrates’ Court had there been the power for the court to deal with unfitness or make orders following a finding of not guilty because of mental impairment.
  2. 2.58 Nine of the 11 people aged under 21 who were dealt with in the higher courts under the CMIA from 2000–01 to 2011–12 had been charged with offences within the jurisdiction of the Children’s Court (non-death-related indictable offences). This comprises 5.7 per cent of total CMIA cases in the higher courts and 8.0 per cent of the cases determined in the County Court. Given the time that matters take to proceed and be heard in the higher courts (see [2.39]), it can be assumed that most if not all of the nine cases involved an accused who was under 18 at the time of the offence. If so, these cases would have come within the criminal jurisdiction of the Children’s Court. This provides some indication of the number of cases that could have been dealt with in the Children’s Court if it had the power to deal with unfitness or impose orders after a finding of not guilty because of mental impairment.

Who are the people subject to the CMIA?

  1. 2.59 A person who becomes subject to the CMIA may have a particular mental condition37 that has resulted in a determination of unfitness to stand trial or not guilty because of mental impairment. Information available to the Commission suggests that it is people with a mental illness rather than an intellectual disability or other cognitive impairment who most frequently come under the CMIA provisions under its current operation.
  2. 2.60 In 2012–13, Forensicare received 50 requests for a psychiatric report and 11 requests for a psychological report. In the first two quarters of 2013–14, Forensicare received 18 requests for a psychiatric report and seven requests for a psychological report.38 Psychiatric reports are usually required for a person who has a mental illness, while a person with an intellectual disability will require a different assessment, either by a psychologist, neuropsychologist or neurologist.
People with a mental illness who are subject to the CMIA
  1. 2.61 Mental illness could be the basis for a person being found unfit to stand trial because of ‘disordered or impaired mental processes’ or not guilty because of ‘mental impairment’. A study of 146 people who had been found not guilty because of mental impairment (from the commencement of the CMIA to mid-2006), and people transitioned over from the Governor’s pleasure regime, drew the following conclusion about the ‘typical’ person who is subject to the CMIA:

the picture of the typical [person found not guilty because of mental impairment] was of a disenfranchised and seriously disordered individual with a strong history of contact with psychiatric services but whose contact with the criminal justice system resulting in the verdict was often an isolated event.39

 

  1. 2.62 Of the 146 participants, 72.4 per cent had previous contact with psychiatric services, 58.2 per cent had prior psychiatric hospitalisation, 65.1 per cent had a primary diagnosis of schizophrenia and 10.3 per cent had another psychotic disorder.40
  2. 2.63 The study also reported that only a very small number of participants in the study had been returned to custody while on extended leave or a non-custodial supervision order due to further offending. It was noted that this is consistent with other research41 that demonstrates that the ‘risk of serious reoffending amongst current forensic patients on release to the community is low’.42
  3. 2.64 Forensicare, a statutory agency in the Department of Health, is responsible for supervising people with a mental illness under the CMIA. At the end of 2012–13, there were 154 people with a mental illness supervised by Forensicare under the CMIA. Of these:
  • 70 people were on custodial supervision orders
  • seven people were on extended leave under custodial supervision orders
  • 77 people were on non-custodial supervision orders.43
  1. 2.65 People on custodial supervision orders reside in Thomas Embling Hospital. It is the only secure mental health service in Victoria for people subject to the CMIA and has 116 beds. These beds are for people detained under the CMIA, as well as for people who are transferred from the prison system due to a mental illness and patients from the public mental health system who require specialised management. Beds at Thomas Embling Hospital are spread across distinct units, according to two programs—Acute Care and Continuing Care.
  2. 2.66 Forensicare has the primary responsibility for the treatment and management of people on a custodial supervision order. The Community Operations arm of Forensicare supervises people on a non-custodial supervision order. However, different services can carry out the actual management and treatment of a person under supervision. An area mental health service or private practitioners may have the responsibility for the treatment and management of people subject to a non-custodial supervision order.44 They are also responsible for monitoring whether the person is complying with the conditions of their non-custodial supervision order and for identifying and managing any risks.
People with an intellectual disability or other cognitive impairment under the CMIA
  1. 2.67 There is less information available about people who become subject to the CMIA by reason of an intellectual disability or other cognitive impairment. Information available to the Commission suggests that it is more common for such conditions to underlie unfitness to stand trial than a defence of mental impairment.45
  2. 2.68 The study described above at [2.61] of 146 people found not guilty because of mental impairment under the CMIA,46 and people transitioned from the Governor’s pleasure regime, reported that only 10 participants had a primary diagnosis of intellectual disability (6.8 per cent).47

 

  1. 2.69 Analysis of the available judgments in the 159 cases in the higher courts under the CMIA from 2000–01 to 2011–12, together with information provided to the Commission in consultations, provides some indication of the features of these kinds of cases. Such cases often involved accused who had an intellectual disability and were charged with sexual offences or accused charged with historical sex offences who were elderly and had dementia.48 While these were a small group within the sample, this group is very different to the ‘typical’ person who may be subject to the CMIA and illustrates the range of circumstances in CMIA cases.
  2. 2.70 Disability Services (through the Department of Human Services) supervises people with an intellectual disability or cognitive impairment who are subject to a supervision order under the CMIA.
  3. 2.71 The Department of Human Services advised the Commission that since 1998 there have been 40 orders made under the CMIA in relation to people with an intellectual disability. As at the end of 2012–13, there were 30 people subject to a supervision order under the CMIA. Of these:
  • three people were on a custodial supervision order
  • 27 were on a non-custodial supervision order.
  1. 2.72 The ages of people subject to supervision ranged from 19 to 71 years.49
  2. 2.73 There are 19 places in residential treatment institutions and treatment facilities. These places are available for people who meet the criteria for admission under the Disability Act 2006 (Vic). This may include people who are subject to a custodial supervision order. There are five beds at the Long Term Rehabilitation Program at Plenty Residential Services in Bundoora managed within the North Division, North Eastern Melbourne Area of the Department of Human Services; and 14 beds at the Intensive Residential Treatment Program of the Disability Forensic Assessment and Treatment Service (DFATS).50 People subject to custodial supervision orders must also meet criteria under the Disability Act in order to be admitted to a residential institution or residential treatment facility.51
  3. 2.74 The Secretary to the Department of Human Services also has responsibility for supervising people with an intellectual disability or cognitive impairment subject to a non-custodial supervision order. Case management is delivered across the state by the Department of Human Services.
  4. 2.75 The Commission is aware of two cases under the CMIA involving people who had other cognitive impairments—suggested in both cases to be an acquired brain injury.52 The Commission’s analysis at [2.69] suggests that a small number of people who were dealt with under the CMIA had dementia, also classified as a cognitive impairment.
Young people subject to the CMIA
  1. 2.76 The limited information available about young people who come into contact with the CMIA suggests that issues of unfitness to stand trial and the defence of mental impairment arise less frequently than with adults. However, the low numbers could merely reflect the currently limited jurisdiction of the CMIA in the Children’s Court and not the actual prevalence of such issues.
  2. 2.77 Approximate information provided by the Department of Human Services and the Office of Public Prosecutions on 25 cases involving young people who had contact with the CMIA53 suggests that issues of unfitness—linked with impairments that are the result of factors related to developmental difficulties and intellectual disability—arise more commonly than the defence of mental impairment. The youngest person was 13 years of age, and in many cases the accused had passed the age of 18 years by the time the matter had resolved.54 The most common ages were 16 years (five young people) and
    17 years (seven young people).
  3. 2.78 Table 11 in Appendix D shows that 16 of the 25 young people were committed from the Children’s Court to the County Court to be dealt with under the CMIA provisions. In four cases the young person was declared liable for supervision under the CMIA, with a non-custodial supervision order imposed in each case. All four young people were 18 years or over when the CMIA supervision order was imposed. In one further case, the young person had been declared liable to supervision but a supervision order had not been made.
  4. 2.79 Supervision of children and young people who are on CMIA orders may be provided jointly across a range of areas in the Department of Human Services, including Youth Justice, Child Protection and Disability Services. The information available to the Commission suggests that it is common for such young people to have had current or previous involvement in the youth justice, child protection and disability services systems (see [6.25]–[6.28]).

Key themes on the CMIA’s operation from submissions and consultations

  1. 2.80 The ambit of the Commission’s review of the CMIA—under the terms of reference and supplementary terms of reference—is to examine its operation and report on those areas where change is required to ensure that the CMIA operates justly, effectively and consistently with the principles that underlie it. This necessitated coverage of multiple jurisdictions and government departments and people from a range of professional and non-professional backgrounds.
  2. 2.81 The operation of the CMIA was examined within all court levels in Victoria and three government departments: the Department of Justice (including courts—now Court Services Victoria), the Department of Health (including Forensicare) and the Department of Human Services (including Disability Services, Youth Justice and Child Protection). The Commission examined how the CMIA operated for different groups, and the issues specific to people with a mental illness and those specific to people with an intellectual disability or other cognitive impairment. The Commission also examined the particular issues in relation to young people under the law. The Commission considered the roles of a range of different people who work under the legislation and how they functioned under the CMIA. These included:

 

  • lawyers who represent accused with mental conditions where there might be an issue of unfitness or the defence of mental impairment or who are dealt with under the CMIA
  • police prosecutors who prosecute matters in the Magistrates’ Court and Children’s Court where issues of unfitness and the defence of mental impairment arise
  • prosecutors at the Office of Public Prosecutions who prosecute matters in the Supreme Court and County Court where issues of unfitness and the defence of mental impairment arise
  • judicial officers in the Magistrates’ Court and the Children’s Court who are required to act in accordance with the limited powers under the CMIA in criminal matters where issues of unfitness and the defence of mental impairment arise
  • judicial officers in the Supreme Court and County Court who are required to act in accordance with the CMIA in presiding over investigations of unfitness, determinations of criminal responsibility and reviews of supervision orders
  • experts from a range of fields who conduct assessments of people and provide clinical opinions on whether an accused is unfit to stand trial and/or has a defence of mental impairment (including psychiatrists, psychologists, neuropsychologists and neurologists)
  • psychiatrists who are responsible for the supervision and treatment of people subject to supervision orders and clinicians who provide treatment to people under supervision orders
  • case managers at area mental health services and in the Department of Human Services who manage people on non-custodial supervision orders
  • judicial and non-judicial members of the Forensic Leave Panel who are responsible for considering and granting or refusing leave to people under supervision orders.
  1. 2.82 The Commission also sought to understand how the CMIA affected the general community and particular people in the community who had direct experience of the Act, including victims of crime and their families, accused and people subject to supervision orders and the family members of people who are subject to the CMIA.
  2. 2.83 A vast array of issues was raised concerning the CMIA’s operation across these groups. There was significant variation in the views expressed on many of the issues. However, key themes emerged in the areas where people agreed that the CMIA worked well and in the areas where there was consensus that there was a need for change.

What works well?

  1. 2.84 The Commission identifies the following themes in what currently works well under the CMIA:
  • improvements from the Governor’s pleasure regime
  • expertise and experience of a core group of experts
  • commitment of people who work under the regime
  • current initiatives to enhance capacity and links between services that support the CMIA.
Improvements from the Governor’s pleasure regime
  1. 2.85 Many people highlighted that the CMIA had achieved some of its proposed objectives and brought improvements to this area of the law since it commenced in place of the Governor’s pleasure regime, including:
  • creating a pathway towards release and ensuring that people who are subject to the regime did not feel like they were being punished but rather were being rehabilitated
  • shifting decision making in relation to leave, extended leave and ultimate release to an independent judiciary and Forensic Leave Panel in a way that has been of benefit to the person while still ensuring the consideration of community safety.
Expertise and experience of a core group of experts
  1. 2.86 People consistently acknowledged the expertise and experience of those who conduct assessments and supervise people under the CMIA.
  2. 2.87 However, a need was identified to expand this small group, through forensic training
    and accreditation and more regulation of how assessments are conducted, particularly
    in relation to unfitness to stand trial generally and young people.
Commitment of people who work under the regime
  1. 2.88 It was evident that people who work in this area, including judges, prosecutors and defence practitioners, demonstrate a high level of commitment and dedication. Generally positive feedback was provided about lawyers who represent people in CMIA proceedings.
  2. 2.89 However, feedback indicated a general need for more education about the CMIA provisions, and training to equip judges and lawyers with the tools and understanding
    to communicate effectively with people with a mental illness, intellectual disability or other cognitive impairment to ensure equal treatment before the law.
Current initiatives to enhance the capacity and links between services that support the CMIA
  1. 2.90 Support was consistently expressed for two programs that currently operate in connection with the CMIA legislation:
  • the Mental Health Court Liaison Service (MHCLS)—a court-based assessment and advice service currently provided by Forensicare in seven metropolitan Magistrates’ Courts and by area mental health services in four regional courts
  • the Forensic Clinical Specialists program—part of the Victorian Government’s 10-year mental health plan, Because mental health matters, in which 10 forensic clinical specialists are placed in area mental health services to build the capacity of the workforce to work with patients with a forensic history.55

Where is change required?

  1. 2.91 The Commission identified the following key areas where change is required under the regime, in addition to those specified in the terms of reference and supplementary terms of reference:
  • ‘artificial decision making’
  • delay
  • limited application of the CMIA in the summary jurisdiction
  • maximising rights and participation through support measures
  • the consistency of the CMIA’s operation with its underlying principles
  • enhancements to the forensic capacity of facilities and services that support the operation of the CMIA.
‘Artificial decision making’
  1. 2.92 An overwhelming theme underpinning the areas where change is required was where people considered ‘artificial decisions’ were made by parties because of the current CMIA provisions—that is, inappropriate decisions are made to avoid undesirable outcomes.56
    In particular, artificial decision making was identified as a consequence of the current limited jurisdiction of the CMIA in the Magistrates’ Court and Children’s Court and the current regime that governs supervision orders under the CMIA. For example, the delay created by matters proceeding by way of committal and transfer to a higher court or the very onerous consequences under the CMIA sometimes leads to:
  • the accused (or their lawyers) deciding not to raise issues of unfitness to stand trial
  • the accused deciding to plead guilty to charges when they may be unfit to stand trial or have a defence of mental impairment.
Delay
  1. 2.93 Concerns were expressed about delay throughout the system, in particular:
  • Matters are delayed when they are committed from the summary jurisdiction to the County Court, due to the limited powers of the Magistrates’ Court and Children’s Court to deal with unfitness to stand trial and the defence of mental impairment.
  • People subject to the CMIA may be remanded in prison, either because there is no appropriate place (a mental health or disability facility), with capacity for them to be remanded there, or because there has not yet been a finding made under the CMIA. This results in people with mental conditions, such as a mental illness, intellectual disability, dementia or autism, being detained in prison for long periods of time.
  • Delays have a particularly deleterious effect on young people.
Limited application of the CMIA in the summary jurisdiction
  1. 2.94 Linked in with the themes of artificial decision making and delay, there was strong support for broadening the currently limited application of the CMIA in the summary jurisdiction.
  2. 2.95 In relation to the Magistrates’ Court, it was noted that the jurisdiction of that court had expanded significantly over the period of the CMIA’s operation, and so there was a need for the CMIA’s application to be changed to reflect this. Such a change would ensure that outcomes in cases involving indictable offences triable summarily would more appropriately reflect the level of risk posed by the accused to the community through supervision and treatment.
  3. 2.96 In relation to the Children’s Court, there was consistent support for the extension of the CMIA to ensure that young people whose vulnerability is heightened by the fact of mental illness, intellectual disability or other cognitive impairment could be kept within the specialist jurisdiction of that court as far as possible. A strong theme in this regard was the need for this to occur within a specialised approach in the Children’s Court, supported by necessary programs, facilities and services.
Maximising rights and participation through support measures
  1. 2.97 There was nearly unanimous support among those consulted for more support measures to be provided to people under the CMIA, in particular:
  • support for accused, where the question of unfitness is raised, to optimise their ability to become fit and exercise their rights under the criminal process, or, if found unfit, to assist them to participate as much as possible in the modified proceedings that take place under the CMIA
  • support and assistance for victims of crime and their family members in CMIA matters to assist in their recovery, including the provision of formal support through the court process to facilitate their participation and understanding of the issues.
The consistency of the CMIA’s operation with its underlying principles
  1. 2.98 People identified areas where change was required to the CMIA’s operation on the basis that it was not operating consistently with its underlying principles. These included:
  • Over-cautiousness and perceived barriers to the staggered system of release under the supervision regime—The system of review was described by many people as overly risk-averse, with some people expressing the view that there was a tendency for over-cautiousness which could prevent a person progressing along the staggered system of release as intended. This was particularly highlighted in the context of the principle of least restriction and decision making in the supervision order regime. Some submissions called for that principle to be strengthened. Many people commented on the high thresholds that apply throughout the stages of decision making for review of and leave under supervision orders, which resulted in people with mental conditions subject to the CMIA being held to a higher standard than other people with the same mental conditions in the community.
  • Lack of equal treatment under the CMIA for people with an intellectual disability or other cognitive impairment—Many people considered the CMIA does not reflect the approach that is now taken with regard to people with an intellectual disability or other cognitive impairment to ensure equal treatment before the law. In particular, people identified gaps in how the CMIA operated and interacted with other Victorian legislation to protect rights and ensure clinical oversight along the CMIA pathway.
Enhancements to the forensic capacity of facilities and services that support the operation of the CMIA
  1. 2.99 It was evident from submissions and consultations that there are gaps in the current facilities and services that support the CMIA legislation, in particular:
  • a need for enhancements to the ‘forensic capacity’ of area mental health services and disability services to provide supervision, management and treatment of people on supervision orders
  • lack of step-down medium-secure facilities for people with a mental illness subject to the CMIA
  • lack of appropriate custodial facilities for people with an intellectual disability or other cognitive impairment, in particular acquired brain injury
  • no appropriate custodial facility for young people who raise unfitness to stand trial and the defence of mental impairment.

A set of statutory principles to guide the operation of the CMIA

  1. 2.100 The requirement that the Commission consider whether changes are required to ensure that the CMIA operates ‘justly, effectively and consistently with its underlying principles’ has formed the principal framework for its review.

General statutory principles

  1. 2.101 In the consultation paper, the Commission identified the principles underlying the CMIA. These principles are expressed specifically in the CMIA or implied through its aims and objectives, processes and relevant case law. They are:
  • Fairness to an accused and the right to a fair trial—A person should not enter a plea to an offence or be tried for an offence unless they are mentally fit to stand trial.
  • Legitimate punishment—A person should not be held criminally responsible and punished for an offence if they are not morally blameworthy for the behaviour.
  • Least restrictive alternative—When a person is subject to the CMIA, restrictions on the person’s freedom and personal autonomy should be kept to the minimum consistent with the safety of the community.
  • Community protection—When a person is subject to the CMIA, there is a need to protect the community or the person from any likely danger because of the person’s mental condition.
  • Rights of victims and family members—Victims and family members of people subject to the CMIA have a right to be heard and to be informed.
  • Gradual reintegration—The treatment and reintegration of a person subject to the CMIA is considered on a gradual basis via a staggered system of management and supervision.
  • Therapeutic focus—The CMIA aims to promote an increased understanding of mental conditions among the community and processes to assist in the recovery of all people affected by an offence (including victims, the person subject to the CMIA and their family members).
  • Transparency and accountability—The CMIA encourages procedural fairness,
    open and transparent decision making and rights of appeal.

 

  1. 2.102 The consultation paper also outlined additional principles that underlie the CMIA from different sources:
  • International human rights instruments—these include the International Covenant on Civil and Political Rights,57the Convention on the Rights of Persons with Disabilities58 and the Principles for the Protection of Persons with Mental Illness and for the Improvement of Mental Health Care.59
  • National agreements—these include the Fourth National Mental Health Plan: An Agenda for Collaborative Government Action in Mental Health 2009–201460and the National Statement of Principles for Forensic Mental Health.61
  • Victorian human rights, mental health and disability legislation, in particular the Charter of Human Rights and Responsibilities Act 2006 (Vic)62 (‘Charter’), the Disability Act 2006 (Vic) and the Mental Health Act 2014 (Vic) (‘MHA 2014’).63
  1. 2.103 Broadly speaking, the CMIA seeks to strike a balance between the protection of the community and the rights and clinical needs of accused who are unfit to stand trial or not guilty because of mental impairment.
  2. 2.104 This balance, known as the ‘principle of least restriction’, is an important feature of mental health and disability law both in Australia and overseas. Section 39 of the CMIA sets out the principle of least restriction that underlies the legislation:

In deciding whether to make, vary or revoke a supervision order, to remand a person in custody, to grant a person leave or extended leave under this Act, the court must apply the principle that restrictions on a person’s freedom and personal autonomy should be kept to the minimum consistent with the safety of the community.

  1. 2.105 The principle of least restriction is fundamental to considering the protection of the community, as the rehabilitation of people subject to the CMIA through successful community reintegration is the best way to ensure protection of the community, as well as restoring the person to a state in which they can be a functioning member of that community.

Views in submissions and consultations

  1. 2.106 The majority of these principles were reflected in the input received in submissions and consultations.
Treatment of and support provided to accused
  1. 2.107 The need to provide appropriate supports to people with impaired cognitive capacity who are charged with offences, to ensure equal treatment before the law, was consistently raised in submissions and consultations. For example, the Victorian Equal Opportunity and Human Rights Commission (VEOHRC) submitted that the ‘right to a fair hearing includes the right to effective participation’ which underpins the minimum guarantees, including:

the right of a person to defend him or herself in person, examine or have examined witnesses against him or her, to have the free assistance of an interpreter and the free assistance of the assistants and specialised communication tools if required.64

  1. 2.108 The VEOHRC also suggested that the ‘paradigm shift’ reflected in contemporary rights statements, such as the Charter and the Convention on the Rights of Persons with Disabilities (‘CRPD’) was a useful way to frame the decision-making rights of people subject to the CMIA. The VEOHRC, citing the Supreme Court decision in Nicholson v Knaggs,65 submitted that the CRPD:

reflects a movement away from treating persons with disabilities as objects of social protection towards treating them as subjects with rights, who are capable of claiming and exercising those rights and making decisions based on free and informed consent as active members of society.66

The principle of least restriction
  1. 2.109 The principle of least restriction was particularly emphasised in submissions and consultations as paramount in ensuring that the CMIA operates consistently with human and legal rights of people subject to it.
  2. 2.110 The VEOHRC suggested that the principle of least restriction expressed in section 39 of the CMIA could be stated in clearer terms and in language that is more consistent with Charter rights.67 It referred to other Victorian legislation that set out a similar decision-making principle including the Serious Sex Offenders (Detention and Supervision) Act 2009 (Vic) that provides:

The court must ensure that any conditions of a supervision order (other than the core conditions)—constitute the minimum interference with the offender’s liberty, privacy
or freedom of movement that is necessary in the circumstances to ensure the purposes of the conditions; and are reasonably related to the gravity of the risk of the offender re-offending.68

  1. 2.111 The VEOHRC also referred to the Disability Act which provides:

If a restriction on the rights or opportunities of a person with a disability is necessary, the option chosen shall be the least restrictive of the person as is possible in the circumstances.69

Community protection
  1. 2.112 The principle of community protection was reflected in different ways in submissions
    and consultations.
  2. 2.113 Some submissions expressed concerns regarding the lack of powers under the CMIA in the Magistrates’ Court and Children’s Court. For example, the current requirement to discharge an accused found not guilty because of mental impairment, and lack of power to make orders, means there is no process by which the court can seek to address the person’s mental illness, intellectual disability or other cognitive impairment or ensure the person is supervised to address any risk they may pose to the community.70 Concerns about the how the CMIA functioned in terms of community protection were also raised in relation to the Magistrates’ Court’s and Children’s Court’s lack of powers under the Act.71

 

  1. 2.114 Community protection was also a strong feature of the feedback on ancillary orders and consequences in matters under the CMIA, in particular the lack of ancillary orders under the limited application of the Act in the summary jurisdiction72 and the inconsistencies in the extent to which they are available following different findings under the CMIA in the higher courts.73
  2. 2.115 Some submissions expressed support for the continued representation of the community’s interests under the CMIA.74
Victims and their families and family members of accused
  1. 2.116 The need to recognise victims and family members and to provide appropriate supports to them throughout the CMIA process was a consistent theme raised throughout submissions and consultations.
  2. 2.117 Victims who had experienced CMIA processes spoke in particular about the importance of recognising and acknowledging them as victims of crime and the need for more support, in terms of accessible information and explanation of the complex legal processes and the progress of the matter.
  3. 2.118 For example, a victim’s partner consulted by the Commission talked about how they felt they had a ‘lack of knowledge’, expressed concern that they would ‘not be told about the outcome of the court case’ and stressed the importance of acknowledgment.75 Another victim’s partner said ‘it’s about making sure you get the information along the way about what is happening.76 A person who was a family member of the victim and the accused spoke about the ‘intimidating’ court processes and the need for more support during the court process from someone who ‘understands the complexities of the issues, perhaps someone who had been through the court process themselves’ in some capacity.77

The Commission’s conclusion

  1. 2.119 Many of the issues raised are addressed individually in recommendations throughout the report according to their relevance to a particular aspect of the CMIA pathway.78
  2. 2.120 Separate to these individual recommendations, the Commission considers that the following principles ought to be given explicit expression through statutory principles that apply to decision makers under the CMIA:
  • community protection
  • least restriction
  • acknowledgment of the rights and support needs of individuals directly affected.
  1. 2.121 The Commission’s recommendation to create a set of statutory principles to encapsulate the principles described above is contained below in Recommendation 3.
Community protection
  1. 2.122 The Commission considers that community protection, a paramount consideration underpinning the operation of the CMIA, should be enshrined as a statutory principle to reflect its importance. The protection of members of the Victorian community is a central object of the CMIA and one of the key bases for its existence, the other being the restoration or support of people who are subject to the CMIA in way that is humane and consistent with their rights. The Commission therefore recommends that the principle of community protection should apply to all decisions and powers that are provided under the CMIA.
Principle of least restriction
  1. 2.123 In the Commission’s view, the rights and interests of people subject to detention or other restrictive practices should be protected to the fullest extent possible, consistent with community safety.79 The Commission considers that the best way to do this is to emphasise the importance of the principle of least restriction more clearly throughout the CMIA by also enshrining it as a statutory principle.
  2. 2.124 The Commission notes that currently only the court is required to apply the principle of least restriction even though there are others, such as the Forensic Leave Panel, authorised psychiatrists and the Secretary to the Department of Human Services, who make decisions that affect a person’s freedom and personal autonomy. In contrast, section 8 of the Forensic Disability Act 2001 (Qld) requires that the powers and functions under that Act be exercised or performed in accordance with the principle of least restriction. The MHA 2014 requires a person to have regard to mental health principles in performing any duty or function or exercising any power under the Act.80 These principles include the principle of least restriction.81 In the Commission’s view, the principle of least restriction should apply not only to decision making by courts but to all decisions made under the CMIA.82
Rights and support needs of individuals affected by the CMIA
  1. 2.125 The Commission is of the view that the rights and support needs of all those involved in CMIA proceedings, including victims, family members and the accused, should be strengthened through the introduction of a statutory principle.
  2. 2.126 The additional complexities of CMIA matters require a special approach to the way in which victims of crime, their families and family members of people subject to the Act are supported and acknowledged. As is discussed in Chapter 8 at [8.6]–[8.11], matters that proceed under the CMIA can be procedurally complex, commonly involve offences alleged to have been committed against family members or vulnerable victims, and result in outcomes that can be confusing and difficult to accept.83
  3. 2.127 Cases under the CMIA involve challenging issues that require an understanding of mental illness, intellectual disability or other cognitive impairment and how they affect capacity and behaviour. They involve vulnerable accused and therefore require a specialised approach to providing support to ensure their rights are protected and can be exercised to the fullest extent possible.

 

  1. 2.128 The Commission is therefore also of the view that a statutory principle recognising the need to provide supports to an accused in CMIA proceedings is necessary to embed such an approach as a feature in the conduct of such proceedings. If a person charged with an offence has a mental condition to the extent that they cannot participate in the trial process, or it impairs their functioning to such a degree that they are not criminally responsible for their conduct, the onus is on the state to ensure that criminal justice processes are modified or supports are provided so that the person can, as far as possible, participate and exercise their legal rights in those processes.
  2. 2.129 The Commission considers there is a particular need for such supports for people with an intellectual disability who are charged with offences, who are ‘extremely reliant on dedicated lawyers to guide them through the court process’,84 but who could meaningfully participate in criminal proceedings and avoid the CMIA pathway if additional and appropriate supports were provided. This approach should be inherent in the way in which courts, equipped with adequate resources and the right tools, conduct proceedings under the CMIA. For people with a mental illness, there should be an inherent focus on the way that proceedings are conducted to ensure that treatment opportunities are maximised so as to restore fitness and avoid the CMIA pathway.85

Statutory principles to support a specialist approach to young people

  1. 2.130 The Commission’s Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 and the Children’s Court of Victoria: supplementary consultation paper (‘the supplementary consultation paper’) identified principles and rights that currently apply to children in the criminal jurisdiction in Victoria. These include:
  • Best interests principles—The best interests of the child must always be paramount, and in determining if a decision or action is in their best interests, considerations must include the need to protect the child from harm, to protect their rights and promote their development.86
  • Decision-making principles—These are found in section 11 of the Children, Youth and Families Act 2005 (Vic) (‘CYFA’) and apply to any decision that is made or action taken in relation to a child.87 There are additional decision-making principles for Aboriginal children in recognition of ‘the principle of Aboriginal self-management and self-determination’.88
  • Criminal principles—The CYFA contains generally applicable principles relating to criminal procedure and sentencing of children.89
  • Parens patriae (the state as parent)—A doctrine that is based in the common law, and provides courts with a ‘best interests’ jurisdiction relating to the welfare of a child.
  • Principles of the CMIA—The principles outlined above at [2.101] apply to children in CMIA matters which have been committed and transferred to the higher courts including community protection, the rights of victims and the principle of least restriction.

 

  • Human rights principles—The CYFA and the CMIA exist within a broader Victorian human rights framework as encapsulated in the Charter. Also relevant are the principles contained in international human rights law such as the United Nations Convention on the Rights of the Child90 and the Standard Minimum Rules for the Administration of Juvenile Justice.91
  • Other principles governing the treatment of people with a mental condition—principles in the MHA 2014,92 and the Disability Act.
  1. 2.131 In the supplementary consultation paper, the Commission asked questions about how these principles are currently applied to children in the criminal jurisdiction and whether there are areas of the current process that conflict with human rights principles.
  2. 2.132 The Commission also sought views on whether the current CMIA principles are appropriate for young people and which principles should be applied to young people with mental conditions who raise unfitness to stand trial or the defence of mental impairment in the Children’s Court or adult courts in Victoria.

Views in submissions and consultations

  1. 2.133 While many submissions indicated that CMIA principles can be appropriately applied in the Children’s Court, CMIA principles were thought to be inadequate on their own when applied to young people:

The principles that should govern the application of the CMIA to young people in the Children’s Court and adult courts include the current CMIA principles, combined with the consideration of what is in the child’s best interests, the general decision-making principles, additional decision-making principles when an Aboriginal or Torres Strait Islander child is the subject and careful consideration of cultural and religious influences when the child is from a culturally and linguistically diverse (CALD) background.93

  1. 2.134 Liberty Victoria supported this view, suggesting that the principles in the CYFA should also be considered as a starting point in CMIA matters for young people:

The principles as enshrined in the Children Youth and Families Act 2005 need to be maintained as the starting point. The legislation and Children’s Court jurisdiction has a different emphasis – what is in the child’s best interest and rehabilitation. This too, must be the starting point for any CMIA matter dealt with in the Children’s court.94

  1. 2.135 One clinician experienced in forensic child psychiatry was of the view that the CMIA principles are not appropriate for children and that, in practice, they are not always applied to children, particularly in relation to unfitness matters.95
  2. 2.136 The VEORHC expressed strong support for the development of specialised principles
    for young people in recognition of ‘the particular vulnerability of children and young people with mental illness, intellectual disability or cognitive disability to whom the
    CMIA applies’.96

 

  1. 2.137 Liberty Victoria agreed with this view, also highlighting the importance of acknowledging the special vulnerability of children:

Liberty Victoria acknowledges that children’s interactions within the criminal justice system needs to be managed carefully given the particular vulnerability of children within society. The complexity of children with mental illnesses and fitness issues cannot be underestimated.97

  1. 2.138 Youthlaw suggested that specific human rights principles relating to young people in the criminal justice system be applied, such as the Charterand the Convention on the Rights of the Child.98 This view was supported by Victoria Legal Aid, which argued that if the CMIA was to be extended to the Children’s Court, it was vital that:

there continues to be legislative acknowledgment of the fragility and unique needs of children and young people to be treated consistently with the Charter of Human Rights and Responsibilities Act (2006) and United Nations Convention on the Rights of the Child [citation omitted].99

  1. 2.139 Several submissions recommended incorporating the ‘best interests principles’ outlined in section 10 of the CYFA, that require decision makers to consider factors in determining what decision to make or action to take in the best interests of a child.100
  2. 2.140 It was suggested that the sentencing principles in section 362 of the CYFA, with their emphasis on rehabilitation, may also be useful to incorporate into specialised principles
    for young people.101

The Commission’s conclusion

  1. 2.141 The Commission agrees that while CMIA principles are applicable to young people, additional principles are required that are tailored to the specialised needs and vulnerability of young people who raise unfitness or the defence of mental impairment.
  2. 2.142 The Commission therefore proposes that the CYFA be amended to include statutory principles which will apply specifically to young people who raise unfitness or the defence of mental impairment. These statutory principles should be incorporated into Chapter 5 of the CYFA as part of the provisions that the Commission recommends to provide for an extension of the Children’s Court jurisdiction under the CMIA (see Chapter 6).
  3. 2.143 Human rights principles contained in the Charter apply to all young people and do not need to be incorporated into statutory principles.
  4. 2.144 The best interests principles in section 10 of the CYFA and the decision-making principles in sections 11 and 12 do not currently apply to criminal matters in the Children’s Court. These sections should therefore be incorporated into the statutory principles in Chapter 5 of the CYFA.
  5. 2.145 The Commission considers that it would not be appropriate for all the principles contained in section 362 of the CYFA to apply to young people in matters under the CMIA as these also encompass sentencing principles. As the CMIA operates under a different framework of principles to those in sentencing law, some of these are not appropriate to be applied in the CMIA context, such as the ‘need to ensure that the child is aware that he or she must bear a responsibility for any action by him or her against the law’.102 However, in the Commission’s view it is appropriate for the recovery and therapeutic principles in section 362, for example, those directed towards preserving relationships and reducing stigma, to be included in the application of the CMIA in the Children’s Court.
  6. 2.146 The Commission recommends that a set of principles to apply to young people dealt with in the Children’s Court under the new CMIA processes be incorporated into the CYFA.

Recommendations

3 The Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) and the Children, Youth and Families Act 2005 (Vic) should be amended so that all relevant powers and functions under these Acts are exercised consistently with the following statutory principles:

(a) proceedings should be conducted and, where appropriate and consistent with the rights of the accused, modified in a way that acknowledges the need for support and involves the people affected by the proceedings, including the accused, a family member or a victim of the offence

(b) proceedings involving an accused who was a child at the time of the alleged offence should as far as possible be conducted in accordance with the specialised principles that apply to an accused in the Children’s Court

(c) the need to protect the community

(d) the need to recognise all people affected by an offence, including the accused, a family member or a victim of the offence, and

(e) the principle of least restriction, that is that restrictions on a person’s freedom and personal autonomy must be kept to the minimum consistent with the safety of the community.

4 The following additional statutory principles should be added to the Children, Youth and Families Act 2005 (Vic) to apply to all matters in the Children’s Court where unfitness or the defence of mental impairment is raised:

(a) the need to strengthen and preserve the relationship between the child and the child’s family

(b) the desirability of allowing the child to live at home

(c) the desirability of allowing the education, training or employment of the child to continue without interruption or disturbance, and

(d) the need to minimise stigma to the child resulting from a court determination.

5 Part 1.3 of the Children, Youth and Families Act 2005 (Vic) should be amended to provide that the best interests principles in section 10 and decision-making principles in sections 11 and 12 apply to matters in the Children’s Court where unfitness or the defence of mental impairment is raised.

 

A statutory principle and measures to address unreasonable delay

  1. 2.147 The issue of delay was not directly addressed in the consultation paper. However, concerns were consistently raised in submissions and consultations about the effects of delay on progressing and resolving matters under the CMIA or where issues of unfitness or the defence of mental impairment were raised.
  2. 2.148 The issue of delay was directly raised in the supplementary consultation paper, where the Commission sought input on its particular effect on young people. Feedback received in submissions and consultations on the supplementary consultation paper noted the deleterious effect on young people of delays in criminal proceedings involving issues of unfitness and the defence of mental impairment. One of the more significant issues in considering the application of the CMIA in the Children’s Court is the delay that can be caused by the need to conduct a committal hearing and transfer matters to the higher courts to determine unfitness. Other issues relating to the Children’s Court’s lack of jurisdiction are discussed in Chapter 6 at [6.32]–[6.37].

Views in submissions and consultations

  1. 2.149 The Commission’s submissions and consultations indicated that delay was a concern in the way that the CMIA operated. These areas were identified as:
  • the detrimental effect of delay on people with mental conditions and the particular parts of the process that are prone to delay
  • delays caused by the lack of a summary power to determine unfitness to stand trial in the Magistrates’ Court and the Children’s Court
  • general delays in the system when a person is on remand and there is no appropriate place for them to be detained, particularly affecting people with an intellectual disability
  • the especially deleterious consequences of delays in cases involving young people.

Detrimental effect of delays on people with mental conditions

  1. 2.150 The submission from the Forensicare Patient Consulting Group highlighted the negative effects of delays in criminal proceedings on accused in CMIA matters, describing the difficulties in dealing with a prolonged period of uncertainty and multiple and unexpected adjournments. It was noted that this can be particularly unsettling for a person who might already be unwell. The experience was described in the submission as follows:
    ‘You are stuck in limbo and you never know what to do or what to think’.103
  2. 2.151 A particular part of the process where delays were identified is in the unfitness to stand trial process, in particular the period between a permanent finding of unfitness and the conduct of a special hearing to determine criminal responsibility.
  3. 2.152 If an 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.104

 

  1. 2.153 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.105 The Commission considers that this is an example of unreasonable delay that should not occur. The Commission considers that the interests of an accused who has been found unfit to stand trial are best served with a resolution of the matter and the commencement of their treatment pathway as soon as practicable.106

Lack of summary power to determine unfitness

  1. 2.154 The lack of summary jurisdiction under the CMIA to determine unfitness was a key issue raised in relation to delay.
  2. 2.155 Submissions and consultations that addressed this issue confirmed that the current process was lengthy. Aside from the inefficiency, the length of the process can be difficult for both victims and accused. The Commission was given examples of cases that took two years to resolve107 and accused who were unfit to stand trial being held on remand in prison for long periods.108
  3. 2.156 The Criminal Bar Association was of the view that substantial delays result when a matter has to be transferred to the higher courts and this has a particular impact on young people where the young person is ‘not receiving appropriate supports or treatment
    and/or continues to commit offences’.109
  4. 2.157 The impact of delay on young people was also raised by a judge of the County Court who stressed the importance of preventing unnecessary delays in seeking to achieve outcomes under the CMIA:

[There was] a case involving an accused child who has an intellectual disability and is unfit and had been charged with a number of offences (mainly theft-related) that would normally have been dealt with in the Children’s Court. [The accused] was 16 years old when the alleged offences occurred. The only reason the matter was [committed to the County Court] was because the Children’s Court could not deal with the unfitness issue. The matter took 10 months to get to the County Court and a fitness hearing. The accused has been found unfit by a jury and now is facing a special hearing for offences that could take six weeks to hear … If there is a fitness to plead process in the Children’s Court, this would ensure a better therapeutic outcome for the child.110

  1. 2.158 A number of other case examples were provided in submissions and consultations about the unreasonable delays caused by the lack of powers in the summary jurisdiction to deal with matters under the CMIA.111
  2. 2.159 A number of submissions raised the issue of delays resulting from the lack of jurisdiction in the Children’s Court to determine unfitness and the need for a more streamlined process to ensure matters proceed without unnecessary delay.112 The issue of delay was raised both in relation to concerns about procedural fairness and the impact of delays on the development of the young person.

Concerns about delay for people on remand

  1. 2.160 Another area of operation where concerns were expressed about delay was for accused with mental conditions who are on remand for prolonged periods.
  2. 2.161 One experienced forensic child psychiatrist considered the issue of timely access to justice for young people as a human rights concern. In particular, she highlighted the impact of delay on the development of young people who are required to spend a significant amount of time in remand. The clinician noted that prolonged exposure to custodial experiences, through ‘peer group effects and long periods of remand’, can result in the following:
  • institutionalisation and ‘unhealthy’ identification with the youth justice system
  • disruption of healthy experiences in the community, such as school, vocational training and relationships.113
  1. 2.162 Delay was also identified as an issue for people with an intellectual disability or other cognitive impairment charged with offences, particularly where there are issues of unfitness to stand trial. It is a matter of particular concern when people with an intellectual disability or other cognitive impairment are deemed ineligible to be admitted to a residential institution or a residential treatment facility under the Disability Act and,
    if not granted bail, are remanded to a prison while awaiting determination of the matter.
  2. 2.163 A number of submissions expressed concerns about this issue, including the Office of the Public Advocate and the Victorian Equal Opportunity and Human Rights Commission (VEOHRC). The Commission was given examples in submissions and consultations of cases where delays in the determination of a matter had resulted in people with an intellectual disability or other cognitive impairment spending long periods of time in prison.
  3. 2.164 The Office of the Public Advocate said in its submission that it ‘is concerned about delays experienced by prisoners with cognitive impairment waiting for their case to be heard under the CMIA’ and identified that the ‘[a]vailability of appropriate accommodation is a key reason for the delays experienced by prisoners with an intellectual disability’.114 The Office of the Public Advocate provided a case example about a man who had ‘a moderate to severe intellectual disability and paranoid schizophrenia’ and was found unfit to stand trial for minor offences. Due to a lack of supported accommodation in Disability Services, the man was in prison for a prolonged period of remand and was subject to restrictive practices to manage his behaviour, and as a result of this trauma became ‘agoraphobic depressed and now shows signs of post-traumatic stress disorder’.115
  4. 2.165 Another recent example, described by the Commission in its consultation paper, was reported in The Age newspaper. In this case, a person who was intellectually disabled and had early stages of dementia had been held in remand for 371 days prior to being found unfit to stand trial and not guilty because of mental impairment. There had been no application for bail over this period because of a lack of supervised accommodation. Judge Taft, who presided over the unfitness hearing, made the following comments regarding the situation ‘[t]hat a man with a significant intellectual disability and dementia should be imprisoned for such a time is an embarrassment to the administration of the criminal justice system’.116

The effect of delay on young people

  1. 2.166 The particular effects of delay on young people also featured in submissions and consultations on the supplementary terms of reference.
  2. 2.167 Victoria Legal Aid submitted that delay is of primary concern in relation to young people, given that:

A child’s development can be substantial during such a period, and a more streamlined process is necessary to ensure matters proceed without unnecessary delay, acknowledging that the Court is dealing with the most vulnerable accused.117

  1. 2.168 The Commission for Children and Young People also raised concerns about the impact that the length of proceedings can have on young people due to their ongoing development, which ‘can be negatively impacted by protracted proceedings’. It highlighted the effects of delay on young people who are charged with offences and victims of crime and submitted that:

Delays can affect young people and their victims (who are more likely to also be
young people) disproportionately in CMIA matters compared to adults, given that
it is crucial that they are provided with intervention and therapeutic treatment as
soon as possible.118

  1. 2.169 Dr Adler, an experienced forensic child psychiatrist, also noted the particular impacts that delay can have on the lives of young people. He submitted:

Delays lead to extended periods in custody or waiting for the matter to be heard seriously disrupt schooling and may even contribute to further offending while waiting for the matter to be heard.119

  1. 2.170 The VEOHRC submitted that the anxiety and stress that an adult accused might feel when facing trial for an offence is heightened for a young person, and is prolonged when there are delays in proceedings.120 It noted, in support of this position, a decision made in the Australian Capital Territory where a magistrate found that delay in the prosecution of a young person breached the child’s right121 to be brought to trial as quickly as possible.122 The VEOHRC further submitted that in making this finding, the magistrate highlighted the detrimental effects of delay in matters for both young accused and young victims:
  • It prolongs the stress of a vulnerable accused.
  • It interferes with the provision of an intervention to address any issues that the accused may have.
  • It interferes with any counselling or therapeutic assistance that can be provided to the victim without the risk of tainting any evidence that the victim may be required to give in determination of the matter.
  • It prejudices the fairness of the trial itself.123

The Commission’s conclusion

  1. 2.171 Delay is an important consideration in the administration of criminal justice. Included in the minimum guarantees in the Charter is the right for people charged with criminal offences to be tried without unreasonable delay.124 This right recognises that when proceedings are delayed and not finalised within a reasonable time, the delay can impose an additional burden on those involved in criminal proceedings.125
  2. 2.172 A recent decision made by the Supreme Court in the Australian Capital Territory in R v Forsyth126 illustrates what is meant by ‘unreasonable delay’ within the context of criminal proceedings. In this case the court held, consistent with approaches followed by courts in the United Kingdom, New Zealand and Canada, that ‘there is no need to establish that a trial cannot be fair, [or] to identify [or infer] prejudice … before a finding can be made that there has been unreasonable delay’.127 The court concluded that the delay was unreasonable as it was significantly caused by limits on institutional resources and the actions of the prosecution.128 In doing so, the following factors were identified and applied as being relevant to considering whether there has been unreasonable delay:
  • the length of the delay
  • whether the accused has waived certain time periods in the proceedings
  • the reasons for the delay.129
  1. 2.173 General delay in criminal proceedings can affect their fairness, as well as cost and efficiency.130 This has practical as well as public interest effects.131
  2. 2.174 Delay in criminal proceedings is an issue that affects many areas of the justice system, but has a particular impact on people involved in CMIA matters, including vulnerable accused who may have a mental impairment or be unfit to stand trial, and vulnerable victims of crime who must deal with the particular difficult circumstances involved in CMIA matters.
  3. 2.175 The Commission acknowledges that delay in criminal proceedings has a significant impact on accused involved in CMIA matters given their particular vulnerabilities. The Commission also acknowledges the special vulnerability of young people under the
    CMIA and the particular impact that delays in proceedings may have on their development and overall wellbeing.
  4. 2.176 Delays in criminal proceedings can lead to delays in young people accessing treatment and other interventions. This can have a particular impact on young people who, according to expert opinion provided to the Commission, benefit greatly from being provided with treatment and intervention strategies at the earliest possible opportunity.
  5. 2.177 Delays in matters being transferred to the higher courts can also result in the generation of multiple expert reports. Given that young people are continually developing, significant changes can occur in much shorter periods of time and so a report obtained a few months earlier may no longer be current.

Enshrining a statutory principle

  1. 2.178 The Commission agrees that unreasonable delay should be avoided in matters under the CMIA as they involve accused who are particularly vulnerable due to their mental condition. Delays in criminal proceedings can have a particularly significant impact on young people given their continual development and the need for early intervention and treatment. Victims, their families and the family members of accused should be spared the additional trauma and confusion that unreasonable delay can cause in matters that are already complex and involve a high degree of emotional stress and grief.
  2. 2.179 Accordingly, the Commission recommends the introduction of an additional statutory principle to apply to both the CMIA and the CYFA to create a statutory imperative to avoid delay in the following particular circumstances:
  • in cases involving children and young people
  • where the delay infringes an accused’s rights
  • to support therapeutic outcomes for the accused, victims and family members.

Recommendation

6 The Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) and the Children, Youth and Families Act 2005 (Vic) should be amended to reflect the principle that unreasonable delay is to be avoided and particular consideration is to be given to prioritising matters involving unfitness to stand trial and the defence of mental impairment where:

(a) the accused is a child or was a child at the time of the alleged offence

(b) unreasonable delay would be inconsistent with the accused’s rights, or

(c) to support therapeutic outcomes for the accused, victims and family members.

 

Extending the jurisdiction of summary courts under the CMIA

  1. 2.180 The Commission has also identified that a significant contributor to delay is the current limited jurisdiction of the Magistrates’ Court and Children’s Court to determine unfitness to stand trial and make orders following a finding of not guilty because of mental impairment.
  2. 2.181 The Commission accordingly makes a broad recommendation that the jurisdiction of both courts should be extended within the current respective criminal jurisdictions of each court. Chapters 5 and 6 contain the Commission’s recommendations for the proposed model to apply in each court under such an extension. However, to ensure that this is applied in a way that is appropriate and has regard to the current operational constraints of each court and is consistent with the aim of reducing unreasonable delay, the Commission also recommends that working groups be formed to give effect to the recommendations made in Chapters 5 and 6.

 

Recommendations

7 The jurisdiction of the Magistrates’ Court and the Children’s Court over matters involving unfitness to stand trial and the defence of mental impairment should be extended within the current respective criminal jurisdictions of each court.

The extension of jurisdiction should be provided through amendments to sections 4 and 5 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) and by the recommendations made in Chapters 5 and 6 of this report.

8 The Victorian Government should establish working groups as part of any implementation of the recommendations in Chapters 5 and 6 regarding the application of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) in the Magistrates’ Court and Children’s Court. A separate working group should be established for each court with representation from individuals and organisations with expertise in adult and youth justice, forensic mental health and forensic disability.

 

Improvements to court processes to target areas of unreasonable delay

  1. 2.182 Two further areas in which unreasonable delays could be avoided are in:
  • the listing practices of all courts in matters that proceed under the CMIA
  • the delivery of judgments in such matters.
  1. 2.183 With respect to listing practices, the Commission considers that it would be valuable for all Victorian courts to consider under the proposed changes made to the CMIA, how listing practices could be improved to avoid unreasonable delays in the areas identified.

Recommendation

9 Victorian courts should consider current approaches to listing matters under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) and consider how unreasonable delay can be avoided by the adoption of new listing practices at a number of key stages, including:

(a) first hearing of matters after committal from the Magistrates’ Court or Children’s Court

(b) investigations of unfitness to stand trial

(c) special hearings following a permanent finding of unfitness to stand trial

(d) matters involving children and young people, and

(e) matters involving people who are not eligible to be placed in an ‘appropriate place’ within the meaning of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic).

Any new listing practices that are adopted should be supported by a relevant practice note or practice direction.

 

  1. 2.184 With respect to the delivery of judgments, it should be recognised that any unreasonable or excessive delay in the delivery of judgments in matters determined under the CMIA is highly undesirable. This is particularly so in matters involving children or young people.
  2. 2.185 The matter of CL (A Minor) v Lee132 (‘CL at trial’)and CL, A Minor (by his Litigation Guardian) v Director of Public Prosecutions (on behalf of Lee)133 (‘CL on appeal’) unfortunately involved extensive delay in the delivery of judgment at trial level and a lack of affirmation at appellate level of children’s and young people’s right to, and need for, timely judgment.
  3. 2.186 The matter of CL at trial was heard in the Supreme Court on 8 and 9 December 2009.
    On 17 March 2010 the Victorian Court of Appeal delivered its judgment in R v Momcilovic (‘Momcilovic’),134 as a consequence of which the parties in CL at trial and the Victorian Attorney-General filed written submissions with the court on the effect of the Charter
    on the CYFA in the light of Momcilovic. Judgment in CL at trial was delivered on
    16 November 2010.
  4. 2.187 CL was a child (under 18 years) at the time of the offences charged and when the matter came before the Supreme Court. The nature and circumstances of the charges demonstrated that CL was deeply troubled and vulnerable. The victims of the charges were also vulnerable young people. Over an eight-month period, CL was charged with the offences of criminal damage, committing an indecent act, making child pornography, attempted armed robbery, intentionally causing serious injury, unlawful assault, assault in company, indecent assault, attempted rape, rape, sexual penetration and unlawful imprisonment.135

 

  1. 2.188 In the judgments of the Court of Appeal (Chief Justice Warren and Acting Justice of Appeal Sifris) in CL on appeal, there was no reference to the fact or period of delay in the delivery of judgment at trial. There was no reference to the need for timely delivery of judgment. There was no reference to the principle enshrined in section 25(2)(c) of the Charter of Human Rights and Responsibilities Act 2006 (Vic) (‘Charter’) that a person charged with a criminal offence is entitled to be tried without unreasonable delay. There was no reference to the principle enshrined in section 23(2) of the Charter that an accused child must be brought to trial ‘as quickly as possible’. There was no reference to the provision in resolution 40/33 of the United Nations Standard Minimum Rules for the Administration of Juvenile Justice 1985 (‘The Beijing Rules’) that ‘[e]ach case shall from the outset be handled expeditiously, without any unnecessary delay’. There was no reference to article 40(iii) of the United Nations Convention on the Rights of the Child (1989) that it is a child’s right ‘[t]o have the matter determined without delay’.
  2. 2.189 In the absence of any reference by the Court of Appeal in CL on appeal to the significant needs and rights of children and young people as stated by the principles and instruments rehearsed in the preceding paragraph, and in the absence of curial affirmation of those rights, the Commission affirms that those rights are of profound significance.
  3. 2.190 The period from the laying of the initial charges against CL to CL’s ultimate sentencing on consolidated charges was four years and eight months.

Education, training and awareness

  1. 2.191 In the consultation paper and supplementary consultation paper, the Commission did not specifically seek views on the education and training requirements for people who work under the CMIA. However, submissions and consultations highlighted the need for education and training opportunities for the different groups who have regular interaction with the CMIA.136 The need to enhance the expertise of people in the summary jurisdiction was also emphasised as integral if the application of the CMIA were to be extended in the Magistrates’ Court and the Children’s Court.137 Some people thought that an extension of the CMIA could only be effective if there were adequate resources, specialised training for magistrates,138 specialised court staff139 and a specialised list to manage these matters.140
  2. 2.192 The Commission agrees that, to support its recommendations, there is a need for education and training programs directed at the specific needs of these different groups, in particular decision makers, prosecutors, lawyers and health professionals who are involved in CMIA matters.

 

  1. 2.193 In the following section the Commission makes recommendations to facilitate education and training for people who work under the CMIA. These suggestions are drawn from the feedback given to the Commission throughout its reference and with regard to the recommendations made in the Victorian Parliament Law Reform Committee’s Inquiry into Access to and Interaction with the Justice System by People with an Intellectual Disability and their Families and Carers. In the Commission’s view, these professional development opportunities will enable the people who work in the CMIA field to be properly trained to address the many challenges that arise in relation to:
  • the practical application of the law under the CMIA and reforms to the law if the Commission’s recommendations are adopted
  • prosecuting accused who may be unfit to stand trial or not guilty because of mental impairment
  • the ethical issues that lawyers face in defending accused who may be unfit to stand trial or not guilty because of mental impairment
  • the specific needs of accused who may be unfit to stand trial, in terms of communication assistance, support and services.
  1. 2.194 The Commission also makes recommendations in support of the training of experts who assess people who may be unfit to stand trial (Chapter 3) and Forensic Leave Panel members (Chapter 10).
  2. 2.195 The Commission notes the importance of members of the media having an understanding of the operation of the CMIA and the mental conditions of the people who come under it to ensure the accurate portrayal of the nature and implications of
    the CMIA regime in the community. This is discussed in more detail at [8.202]–[8.208]
    in Chapter 8.

Education, training and accreditation for lawyers

  1. 2.196 Lawyers play an important role in CMIA processes. The process of determining unfitness to stand trial under the CMIA begins when the question of an accused’s unfitness to stand trial arises. Lawyers, particularly defence lawyers, are often the ones who will raise the question of unfitness to stand trial. Similarly, lawyers advise and assist their clients in deciding whether to rely on the defence of mental impairment.

Views in submissions and consultations

Understanding and the ability to provide support
  1. 2.197 The Commission received some positive feedback on the expertise of lawyers who work under the CMIA.141 One submission noted:

When I went through [the CMIA process] I got advice from my lawyer about this right. From the very beginning, he stayed by my side throughout the entire processes [sic] that I had to go through … The lawyer representing me was highly skilled in this area of the mental impairment act which he advised me to do and go ahead with. … I was very unwell and now looking back my lawyer at the time was concerned for [my welfare].142

  1. 2.198 Some positive feedback was also provided about support and communication methods. A person consulted by the Commission who was previously subject to a supervision order said that their lawyer was ‘good at helping me to understand what was going on in court’ and that there was good communication between them.143
  2. 2.199 However, there were three main areas that were identified for improvement in lawyers’ understanding and approach:
  • Sometimes lawyers lack understanding of the CMIA and the implications of the CMIA regime which affects their ability to provide accurate advice.144 For example, one submission noted that a person had been told by their lawyer that a CMIA finding would not result in a criminal record, which is not necessarily true.145
  • Sometimes lawyers lack understanding of mental illness, intellectual disability or other cognitive impairment.146
  • Some lawyers have insufficient skills to support people with a mental illness, intellectual disability or other cognitive impairment and to communicate effectively with them.147
  1. 2.200 The following suggestions were made:
  • Lawyers could be better trained to support their client’s decision-making capacity and ability to participate in proceedings.148
  • Lawyers could go through an accreditation process to ensure that they are acting consistently with contemporary communication assistance approaches.149
Ethical issues
  1. 2.201 In the consultation paper, the Commission discussed some of the ethical issues a lawyer may face in the CMIA process.
  2. 2.202 One ethical issue that can arise concerns the decision as to whether to raise the question of unfitness to stand trial on behalf of the client and consequently take the client through the CMIA process. Similarly, lawyers representing the accused may face ethical issues in deciding whether to raise the defence of mental impairment. These can be difficult decisions, particularly when their client may be unable to provide instructions on which path they want to take. In making this decision, a lawyer may feel conflicted between the benefits of the CMIA process for their client (for example, the availability of a special hearing process and the absence of recorded conviction and a sentence of imprisonment) and its potential drawbacks (for example, the indeterminate period of supervision).
  3. 2.203 Submissions and consultations indicated that this issue was indeed one that lawyers had to address in many cases.150 In a consultation attended by people who had direct experience of going through the CMIA process as accused, many participants indicated that they were mentally impaired at the time of the trial and could not remember making decisions in relation to this.151
  4. 2.204 It was suggested that a practice guide be developed to assist lawyers in navigating ethically challenging scenarios.152

 

  1. 2.205 The Commission notes that in 2007, the Victorian Bar provided guidance on appearances in criminal matters where there are issues of mental impairment.153 This was to be incorporated into the Victorian Bar Incorporated Practice Rules154 but it does not appear that this has occurred.

The Commission’s conclusion

  1. 2.206 In the Commission’s view, lawyers need to have a thorough understanding of the CMIA regime when providing advice to clients who may be unfit to stand trial or eligible for the defence of mental impairment, to ensure the accused appreciates the legal consequences of the CMIA pathway.
  2. 2.207 The Victorian Parliament Law Reform Committee’s Inquiry into Access to and Interaction with the Justice System by People with an Intellectual Disability and their Families and Carers recommended that the Victorian Government support the Law Institute of Victoria and the Victorian Bar to develop and distribute information to their members on how to interact better with, and respond appropriately to, clients with an intellectual disability or cognitive impairment.155 It noted that this information could include:
  • how to identify intellectual disability or cognitive impairment
  • issues involved in prosecuting and representing clients who have an intellectual disability or cognitive impairment
  • the disadvantages experienced by people with an intellectual disability or cognitive impairment
  • organisations that can provide information to assist both practitioners and clients.
  1. 2.208 The Commission supports this recommendation and supports its extension to people with a mental illness. In the Commission’s view, the education and training for lawyers should also specifically address:
  • information about the CMIA and the implications of the CMIA regime
  • the use of appropriate communication methods
  • how lawyers can increase the ability of their clients to participate in hearings
  • advice on navigating ethically challenging situations.
  1. 2.209 In addition, the Commission considers that there should be training and education requirements for defence lawyers for entry into the Victoria Legal Aid Indictable Crime Panel or the creation of additional training and education requirements for defence lawyers acting in CMIA matters.
  2. 2.210 Such training and education requirements could be combined with current accreditation arrangements. Victoria Legal Aid may establish different panels for different classes of matters in relation to which legal assistance may be provided.156 It may also determine the conditions which a private law practice or private legal practitioner must satisfy to be included on a panel.157 CMIA matters could be assigned to legal practitioners on the panel who have gained the entitlement to act in such matters.158

 

  1. 2.211 In the Commission’s view, training and education, particularly as part of accreditation requirements, would be an effective method of promoting high standards and of avoiding situations where lawyers take on cases that are beyond their expertise. It should ensure that lawyers have an accurate working knowledge of the CMIA, the skills to interact with and promote the participation of clients who have a mental illness, intellectual disability or other cognitive impairment and the ability to manage ethical issues.

Recommendations

10 Victoria Legal Aid should develop training and education requirements for lawyers acting in matters under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) and the equivalent provisions in the Children, Youth and Families Act 2005 (Vic). These requirements should be included as a pre-condition for entry into the Victoria Legal Aid Indictable Crime Panel and equivalent panels in matters in the Magistrates’ Court and Children’s Court.

11 The Law Institute of Victoria, in collaboration with the Victorian Bar, should develop practice information to provide guidance for lawyers acting in criminal matters involving accused with a mental illness, intellectual disability or other cognitive impairment.

 

Education, training and guidelines for prosecutors

  1. 2.212 The Commission’s recommendations to extend the operation of the CMIA to the Magistrates’ Court and Children’s Court will require education and training to be provided for police prosecutors in prosecuting CMIA matters in both courts.159
  2. 2.213 Further, the Commission considers that police prosecutors should be provided with guidelines on dealing with CMIA matters more generally. When a question of unfitness to stand trial or the defence of mental impairment is raised, police prosecutors have options in exercising their prosecutorial discretion. At present, they may withdraw the charge (which they may choose to do because of the lack of an outcome following some CMIA matters in the Magistrates’ Court or Children’s Court), or consider whether the matter should be tried in a higher court. Under the Commission’s recommendations, police prosecutors may be more likely to pursue the matter in the Magistrates’ Court or Children’s Court.
  3. 2.214 In exercising this discretion, police prosecutors may seek advice from the Office of Public Prosecutions. The key guiding principle applied by police prosecutors in exercising their discretion is community safety. Other factors include the prospects of gaining conviction and the views of the victim. In the Commission’s consultations, some police prosecutors also indicated that in applying this discretion, factors such as whether the accused may be unfit to stand trial or have a mental impairment were also relevant to this decision.160 In other consultations it was suggested that the approach taken by police prosecutors on these issues varied.161
  4. 2.215 In the Commission’s view, it is desirable to have a set of prosecutorial guidelines to ensure greater consistency in decision making.

 

Recommendation

12 Victoria Police should:

(a) develop a set of prosecutorial guidelines that are consistent with the underlying principles of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) to assist police prosecutors in their prosecution of matters under the Act, and

(b) provide education and training for police prosecutors on prosecuting Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) matters in the Magistrates’ Court and Children’s Court.

 

Education and training for judges and magistrates

  1. 2.216 The approach by and skills of judges and magistrates form an integral part of how the CMIA provisions operate in practice and are experienced by individuals who are directly affected by the Act, in particular accused and people subject to supervision orders, their family members and victims and their families, as well as the broader community through the jury. This includes techniques for communicating with people with a mental illness, intellectual disability or other cognitive impairment, for example in the delivery of reasons or explanation of court processes, and flexibility, within the available resources, to modify proceedings to ensure that they are as appropriate as possible, having regard to the capacity of the person.
  2. 2.217 Individuals who are involved in CMIA proceedings will generally be suffering high levels of anxiety and stress, in addition to managing a mental condition or the trauma of being a victim of crime. It is therefore crucial that any information communicated in court, via the judicial officer is done in a way that acknowledges their need for support and is as clear and accessible as possible. The Commission is aware of cases where the court was able to modify the language used in a judgment under the CMIA so as to ensure the accused understood the court’s decisions and reasons. For example, in one judgment involving an accused with a significant intellectual disability, the court used simple and plain language to describe the offences committed and the outcome of the order imposed on the person.162 The Commission supports the use of such language where it would assist the accused or other individuals directly affected, such as victims of crime and their families and family members of the accused.

Views in submissions and consultations

  1. 2.218 The Commission’s recommendations to extend the operation of the CMIA to the Magistrates’ Court and the Children’s Court will require education and training to be provided for magistrates in hearing CMIA matters in those courts.163 This would require information to be provided for magistrates in both metropolitan and regional areas on the listing of matters, the new processes that will apply in these courts and other topics specific to CMIA matters (such as the assessment of expert reports). Victoria Legal Aid suggested in its submission that education could be provided for the judiciary (and medical experts) to support the Commission’s recommendations, if implemented.164
  2. 2.219 It was suggested in consultations that education and training could be provided for the judiciary to:
  • ensure that court procedures promote appropriate communication with people who come under the CMIA165
  • give the judiciary a greater understanding of clinical practice in the mental health and disability sectors, including the services that are available to people who may be subject to the CMIA.166

The Commission’s conclusion

  1. 2.220 The Victorian Parliament Law Reform Committee’s Inquiry into Access to and Interaction with the Justice System by People with an Intellectual Disability and their Families and Carers recommended that the Victorian Government support the Judicial College of Victoria in providing more training opportunities for members of the judiciary about best practice management in proceedings involving a person with an intellectual disability or cognitive impairment.167 The Commission agrees that the Judicial College of Victoria, whose major function is to assist with the professional development of judicial officers, is well placed to take the lead in developing education and training programs that will meet the needs of the judiciary at all levels. The Commission endorses the recommendation of the Victorian Parliament Law Reform Committee, and supports the extension of this recommendation to people with a mental illness.
  2. 2.221 The Victorian Parliament Law Reform Committee also recommended that the Victorian Government support the Judicial College of Victoria to develop, in consultation with members of the judiciary and the disability sector, guidance material on how the needs of people with an intellectual disability or cognitive impairment can be identified and appropriately met, including with modifications to court proceedings.168 The Commission supports the extension of this recommendation to people with a mental illness and in addition, supports the inclusion in such guidance material of information about the use of communication techniques with people with a mental illness, intellectual disability or other cognitive impairment.

 

  1. 2.222 Finally, the Commission recommends that education or training also include information that will increase the understanding of the judiciary of clinical practice in the mental health and disability sectors, including the services that are available to people who may be subject to the CMIA.
  2. 2.223 In response to the Victorian Parliament Law Reform Committee’s recommendations, the Judicial College of Victoria informed the Commission that it is continuing to incorporate training regarding the complex needs of people with a cognitive impairment as part of its curriculum, which is revised and renewed on an annual basis. As in previous years, this consists of programs delivering information on the causes of cognitive impairment and programs to assist judicial officers in developing skills to help or manage people with a cognitive impairment in court. It noted that any expansion of the College’s range of activities in relation to people with an intellectual disability would require further resources.169 The Commission also acknowledges the cost implication that the recommendation below will have for the Judicial College of Victoria.

Recommendation

13 The Judicial College of Victoria should develop and deliver judicial education for judges and magistrates on:

(a) any new statutory provisions and processes that are introduced under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) and the Children, Youth and Families Act 2005 (Vic)

(b) the best practice management of proceedings involving a person with a mental illness, intellectual disability or other cognitive impairment

(c) how the needs of people with a mental illness, intellectual disability or other cognitive impairment can be identified and appropriately met, including by modifications to court procedure and the use of appropriate communication methods, and

(d) information on clinical practice in the mental health and disability sectors, including the services that are available to people who may be subject to the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic).

 

 

  1. 2.224 The Commission also notes that there are examples in other jurisdictions of the resources that have been developed to provide judicial education and skills in relation to the conduct of proceedings in an equitable and accessible way for vulnerable groups.
    They include:
  • The Equality before the Law Bench Book published by the Judicial Commission of New South Wales provides ‘statistics and information about the different values, cultures, lifestyles, socioeconomic disadvantage and/or potential barriers in relation to full and equitable participation in court proceedings for nine different groups of people’ and ‘guidance about how judicial officers might need to take account of this information in court—from the start to the conclusion of court proceedings.170
  • In Queensland, the Supreme Court has published a Supreme Court Equal Treatment Benchbook, which is a resource for judicial officers to assist in equal treatment of participants in court proceedings and aims ‘to provide information and background knowledge so that judges are alert to circumstances, which, if overlooked, could result in an injustice or a perceived injustice’.171

Linkages, capacity enhancements and information sharing

  1. 2.225 The CMIA system operates across several government departments, a range of courts and the mental health and disability service sectors. This can make it difficult for a person who is subject to the CMIA to receive a connected pathway through the system.
  2. 2.226 As a person progresses along the CMIA pathway, they will be in contact with different government departments, agencies, courts and services. These may range from police, the Magistrates’ Court, the County Court or the Supreme Court, through to the Department of Corrections while on remand and the Department of Health or Department of Human Services once they become subject to a supervision order. If a person is released into the community, they may receive services from area mental health services, disability services providers or services provided by non-government organisations.
  3. 2.227 It is therefore difficult for a person to progress smoothly through the CMIA system given the level of co-ordination, expertise and information sharing that is required. While linkages between departments and services are improving, many programs, services or facilities operate in silos.
  4. 2.228 The Victorian Parliament Law Reform Committee also identified this as an issue and recommended that the ‘Victorian Government consider establishing a steering committee for the purpose of coordinating Government agencies involved in the care and support of people with an intellectual disability who are involved in the justice system’.172
  5. 2.229 The Commission has made recommendations through this report aimed at enhancing the linkages between the criminal justice, mental health and disability systems, the forensic capacity of services that support the operation of the CMIA and information sharing between bodies or agencies involved in decision making under the CMIA. These include:
  • A recommendation to expand and resource the Mental Health Court Liaison
    Service that currently operates in selected Magistrates’ Courts—Recommendation 29 (Chapter 5).

 

  • Recommendations to promote stronger linkages and awareness of whether a person is receiving treatment or services in civil mental health and disability systems, including:
  • giving the Magistrates’ Court and the Children’s Court the power to discharge a person without determining unfitness to stand trial if it is satisfied that they are receiving treatment, support and services in the community (Recommendation 28(m) in Chapter 5 and Recommendation 45(f) in Chapter 6) and
  • an addition to section 39 requiring a court to consider whether a person is receiving treatment or services under the MHA 2014 or the Disability Act (Recommendation 90 in Chapter 10).
  • Recommendations focussed on the appropriateness, availability and flexibility of forensic mental health and disability facilities for young people and adults with a mental illness, intellectual disability or other cognitive impairment (Recommendations 49 and 50 in Chapter 5 and Recommendations 98 and 100 in Chapter 11).
  • Recommendations to support and promote workforce strategies and provide more guidance for people working under CMIA to enhance the forensic capacity of civil services to manage people on supervision orders (Recommendation 101 in Chapter 11).

New pathways under proposed changes to the CMIA

  1. 2.230 The recommendations made in this chapter and in Chapters 3–11 propose significant changes to the CMIA. The review has resulted in the identification of issues which require attention after 17 years of the CMIA’s operation.
  2. 2.231 Given the significant changes recommended to the CMIA regime and its current operation in the higher courts, and the recommended expansion into the Magistrates’ Court and the Children’s Court, the Commission makes a further recommendation that the Victorian Government review the continued operation of the CMIA 24 months after the commencement of any new legislation.

Recommendation

14 The Victorian Government should review the operation of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) 24 months after implementation of any major recommendations.

 

  1. 2.232 To illustrate the new CMIA pathways that could operate under the Commission’s recommendations, four scenarios have been developed and are presented below.
    The scenarios portray fictional cases that are composites of a range of cases under the CMIA.

Scenario 1—pathway in the Magistrates’ Court
Talia is driving her car while in an acutely psychotic state. In a shopping centre car park, she backs her car into another car, driven by Roger. Talia then drives at Jamal, a passer-by, running over his feet. Jamal suffers serious fractures and feels traumatised by the experience.

Talia is charged with dangerous driving of a motor car and recklessly causing serious injury. Her lawyer raises the issue of her unfitness to stand trial while her matter is listed
in the Magistrates’ Court in the committal stream. 

Scenario 1-pathway in the Magistrate's Court

Scenario 1 - continued

 

Scenario 2—pathway in the Children’s Court
Jason, a high school student, is 15 years old and has an intellectual disability. A fellow student, Caitlin, also has an intellectual disability. One day at school, Jason asks Caitlin to come into the boys’ bathroom with him. Some time later, Caitlin comes out of the bathroom, very upset. She tells her teacher that Jason made her have sex with him in
the bathroom.

Jason is charged with rape. Jason’s lawyer raises the issue of his unfitness to stand trial while his matter is listed in the Children’s Court.

Scenario 2 - pathway in the Children's Court

Pathway in the Children's Court - 2

 

Scenario 3—pathway in the County Court
Li has an intellectual disability. His carer, Dave, has worked with Li for six months. Li sometimes gets violent when he is upset. One day, Li becomes frustrated with Dave and throws a rock at his head. The rock hits Dave in the face and he permanently loses sight in his left eye.

Li is charged with intentionally causing serious injury. Li’s lawyer raises the issue of his unfitness to stand trial and the defence of mental impairment while his matter is listed
in the Magistrates’ Court in a committal hearing.

Scenario 3 - Pathway in the County Court

Scenario 3 cont Pathway in the County Court

 

Scenario 4—pathway in the Supreme Court
Mario has been regularly hospitalised because he suffers from chronic paranoid schizophrenia. At the time of the offence, he lives with his parents, Antonio and Sophia. Mario has been showing signs of disturbed behaviour. One day, Sophia leaves the family home to run errands while Mario stays with Antonio. When Sophia returns, Mario tells Sophia that he has killed his father. Mario later tells his lawyer that he believed his father was stealing his thoughts and that he had to kill his father to prevent this from happening. Mario is remanded to the Thomas Embling Hospital.

Mario is charged with murder. His symptoms resolve sufficiently so that he is fit to stand trial. On Mario’s instructions, his lawyer raises the defence of mental impairment to the charge. Mario is committed for trial to the Supreme Court.

Scenario 4: pathway in the Supreme Court

 Scenario 4: pathway in the Supreme Court 

 

 

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