5. Application of the CMIA in the Magistrates’ Court

Introduction

  1. 5.1 The terms of reference ask the Commission to consider whether the application of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) (‘CMIA’) should be further extended to the Magistrates’ Court. This includes consideration of the following questions:
  • whether the process for determining fitness to stand trial should be adapted for use in the Magistrates’ Court
  • whether the CMIA should permit the Magistrates’ Court to make supervision orders or other orders appropriate to the jurisdiction, rather than being required to discharge the accused1 if they are found not guilty because of a mental impairment
  • if the Magistrates’ Court is permitted to make additional orders, whether this should be limited to indictable offences that are triable summarily or extended to also include certain summary offences.
  1. 5.2 In the Review of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997: consultation paper (‘the consultation paper’), the Commission discussed these issues and asked whether the CMIA should be extended to apply in the Magistrates’ Court and if so to what extent.
  2. 5.3 This chapter provides an overview of the Commission’s findings regarding the current application of the CMIA in the Magistrates’ Court’s jurisdiction, including the views expressed in submissions and consultations concerning the limitations of the CMIA’s application. It was evident from submissions and consultations that the limited application of the CMIA results in a gap in the system in which the CMIA could operate. The issues caused by this gap can only be addressed with extension of the Magistrates’ Court’s jurisdiction. Closing this gap would result in a system that is more just, more effective and more consistent with the principles that underlie the CMIA.

 

  1. 5.4 The recommendations the Commission makes in this chapter provide a legislative framework for the CMIA’s operation in the Magistrates’ Court. The chapter explains the reasoning behind the Commission’s recommendations to:
  • allow the Magistrates’ Court to determine unfitness to stand trial and criminal responsibility following a finding of unfitness
  • give the Magistrates’ Court the power to make limited supervision orders following a finding of not guilty because of mental impairment2 or a finding that the accused committed the offence charged.3
  1. 5.5 The Commission considers that these recommendations provide for a model that not
    only overcomes the issues identified, but suits the specific qualities of the Magistrates’ Court’s jurisdiction.

The Magistrates’ Court’s jurisdiction and criminal procedure

  1. 5.6 The Magistrates’ Court is Victoria’s principal court of summary jurisdiction.4 In its criminal jurisdiction, the Magistrates’ Court has the power to:
  • hear and determine all summary offences
  • hear and determine all indictable offences triable summarily5
  • conduct committal proceedings into indictable offences.6
  1. 5.7 Summary offences are more minor offences that are heard by a magistrate without a jury. Being drunk in a public place, using obscene or threatening language in public and damaging property are examples of summary offences.
  2. 5.8 Indictable offences are more serious offences. They attract higher maximum penalties, and are usually triable before a judge and a jury. However, magistrates can hear and determine indictable offences that are triable summarily. Indictable offences that are triable summarily can range from recklessly causing serious injury to assault with intent to rape and aggravated burglary.7
  3. 5.9 Committal proceedings are a preliminary examination to determine whether the case against the accused is sufficient to warrant the accused being directed to stand trial before the Supreme Court or County Court.8 A committal proceeding is conducted when an accused has been charged with an indictable offence and may be conducted when an accused is charged with an indictable offence triable summarily.
  4. 5.10 The Criminal Procedure Act 2009 (Vic) sets out the test for committing the accused for trial (whether the evidence is of sufficient weight to support a conviction for the offence charged).9 Upon determination of a committal proceeding, a magistrate may either direct that the accused stand trial and order that they be remanded in custody until trial or granted bail, or the magistrate may discharge the accused.10

 

  1. 5.11 When a criminal proceeding commences, the matter is allocated to either the summary stream or the committal stream. If the offence is an indictable offence that may be heard and determined summarily, regardless of where the matter is listed (in the summary stream or committal stream), the court may offer a summary hearing of the charge or either party may apply for one at any time before the court determines whether to commit the accused for trial. The Criminal Procedure Act outlines the criteria that have to be satisfied for the court to hear and determine an indictable offence summarily.11 These are that the accused consents to a summary hearing and the court considers that the charge is appropriate to be determined summarily having regard to the matters in section 29(2) of the Criminal Procedure Act.

Current application of the CMIA in the Magistrates’ Court

Unfitness to stand trial

  1. 5.12 The CMIA does not give the Magistrates’ Court the power to determine unfitness to stand trial. In CL (A Minor) v Lee,12 the trial judge held that under the current CMIA provisions the Magistrates’ Court lacks jurisdiction to determine unfitness. The Victorian Court of Appeal affirmed this decision in CL, A Minor (by his Litigation Guardian) v Director of Public Prosecutions (on behalf of Lee).13 These cases are discussed in more detail in the consultation paper.14
  2. 5.13 When a person is charged with an indictable offence (including an indictable offence triable summarily) and there is an issue raised regarding their unfitness to stand trial, in order for the matter to proceed, it must be committed to a higher court for an investigation of unfitness by a jury. If the issue of unfitness is raised in relation to a summary offence, the matter must be discontinued.15
  3. 5.14 The Australian Human Rights Commission observed relatively recently that the issue of unfitness to stand trial in the summary jurisdiction is an issue which is ‘neglected or given little attention’.16

The defence of mental impairment

  1. 5.15 In relation to the defence of mental impairment, the CMIA provides that the defence of mental impairment applies to summary offences and to indictable offences heard and determined summarily.17 This allows the defence to be relied on in the Magistrates’ Court as part of the determination of the criminal responsibility of an accused for an offence. The CMIA provides, however, that if the Magistrates’ Court finds a person not guilty because of mental impairment of a summary offence or an indictable offence heard and determined summarily, the Magistrates’ Court must discharge the person.18 The Magistrates’ Court therefore has no power to make orders in relation to people found
    not guilty because of mental impairment.19

Issues caused by the limited application of the CMIA in the Magistrates’ Court

  1. 5.16 The consultation paper identified a number of possible issues concerning the limited application of the CMIA in the Magistrates’ Court.20
  2. 5.17 The Commission’s consultations, submissions received and the Commission’s independent research confirmed the existence of these issues and a number of others. The following section describes these issues in more detail.

Lack of power to determine unfitness to stand trial

Encourages ‘artificial decision making’

  1. 5.18 The current system places pressure on the parties who work within it to take steps to avoid its undesirable outcomes. This leads to what the Commission calls ‘artificial decision making’, which can take a number of forms documented below.
Committing an accused to a higher court
  1. 5.19 The lack of a process in the Magistrates’ Court to determine unfitness to stand trial means that sometimes the only reason a magistrate would not grant summary jurisdiction under the Criminal Procedure Act is because only the County Court has the power to empanel a jury to determine the issue.21 This is the case even if the offence in the matter is of a level of seriousness that would typically be heard and determined in the Magistrates’ Court. If the magistrate does not grant summary jurisdiction due to a lack of power to determine unfitness, and the criteria to commit the accused for trial under the Criminal Procedure Act are satisfied,22 the accused would be committed to the County Court. Knowing this, prosecutors may withdraw charges to avoid the matter having to proceed by way of committal and transfer to a higher court.23
The pressure to plead guilty
  1. 5.20 A number of people consulted noted that it can be a preferable outcome for an accused to plead guilty and receive a definite sentence in the Magistrates’ Court (with their mental condition considered in sentencing) rather than to rely on their unfitness to stand trial and risk the onerous process and supervision regime in the higher courts.24
  2. 5.21 It was also suggested in consultations that lawyers can feel pressured to help their client ‘over the line’ in circumstances where there is some evidence to suggest there may be issues concerning their client’s fitness to stand trial but it is not unequivocally clear whether these exist; for example, where their client may be borderline unfit or where they may be fluctuating in and out of fitness over a period of time.25 Lawyers may also ‘hold back’ from making enquiries about their client’s unfitness to avoid being in a position where they are ethically bound to pursue a course that may result in adverse legal consequences for their client.26

 

  1. 5.22 Submissions and consultations have also indicated that an accused might choose or be encouraged to plead guilty when they are unfit to stand trial.27 In its submission, the Office of Public Advocate observed that this happens because the procedures are ‘onerous and not commensurate with the offence’.28
  2. 5.23 A Mental Health Court Liaison Service officer provided the Commission with two examples where the accused were likely to have been unfit to stand trial, but pleaded guilty because the County Court process would have been too stressful for them and their carers.29 The officer was of the view that the need for a process to deal with unfitness in the Magistrates’ Court was especially compelling in these cases. Unlike the higher courts, proceedings are less formal in the Magistrates’ Court—for example, magistrates and lawyers do not wear wigs or robes.30 Juries do not form a part of Magistrates’ Court proceedings.
  3. 5.24 The reported practices in relation to accused who may be unfit to stand trial are concerning for a number of reasons. An accused who pleads guilty even when they are unfit to stand trial could receive a recorded criminal conviction and an unsuitable punishment.31 If an accused continues to have multiple encounters with the criminal justice system, with their unfitness going undetected, their criminal history is more likely to result in a prison sentence.32 This could also be inconsistent with the principles that underlie the CMIA, particularly that of fairness to an accused and the principle that a person should not enter a plea or be tried for an offence unless they are mentally fit to stand trial.
  4. 5.25 The pressure to plead guilty was said to result in the ‘criminalisation of the CMIA cohort’.33

Lack of judicial oversight and consistency in decision making

  1. 5.26 The current system is dependent on prosecutorial discretion and the individual decisions of lawyers. The lack of guidelines or judicial oversight results in a process that has been described as ‘ad hoc’.34
  2. 5.27 When a question of unfitness to stand trial is raised, police prosecutors must exercise their prosecutorial discretion and determine whether to withdraw the charge or whether the matter should be tried in a higher court. The Commission was informed that Victoria Police prosecutors have adopted the Director of Public Prosecution’s guidelines on prosecutorial discretion.35 In exercising prosecutorial discretion, police prosecutors may also seek advice from the Office of Public Prosecutions.36 The key guiding principle applied by police prosecutors in exercising this discretion is community safety. Other factors include the prospects of securing a 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.37 It was suggested that the approach taken by police prosecutors on these issues varied.38 Examples were given of the ‘repeat Mars bar thief’, where charges are withdrawn, and an accused who may be lighting fires, where prosecutors pursue the charge.39
  3. 5.28 As discussed above, the course the accused takes is also very reliant on the advice they receive from their lawyer on whether to plead guilty or to rely on unfitness to stand trial.
  4. 5.29 The strong reliance on prosecutorial discretion, without clear guidance on how to apply the discretion specifically in matters under the CMIA, and the different approaches of lawyers, without judicial involvement at an earlier stage, creates a risk that outcomes will diverge on an inappropriate basis.

Inefficiency of the process

  1. 5.30 The Victorian Parliament Law Reform Committee observed that the current requirement that investigations into unfitness to stand trial be referred from the court in which the issue was raised to another court causes considerable inefficiencies and lengthens the process.40 The current process in relation to unfitness requires the committal hearing of the matter, transfer to the County Court and the empanelling of two juries: one to determine whether the accused is unfit to stand trial, and a second to determine whether the accused committed the offence (if they are found unfit to stand trial). Further, the current process uses resources in the higher courts even though the offence is one that comes within the jurisdiction of the Magistrates’ Court.
  2. 5.31 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 resolve and accused who were unfit to stand trial being held on remand in prison for periods longer than the sentence they would have served for the offence.41 The delay caused by the Magistrates’ Court’s lack of power to deal with unfitness is a key factor underpinning Recommendation 7 in Chapter 2 to extend the jurisdiction of the CMIA into that court, as well as into the Children’s Court.

The lack of outcome

The effect on community safety
  1. 5.32 If a person charged with a summary offence (as opposed to an indictable offence triable summarily) is unfit to stand trial, proceedings involving that person must be discontinued in the Magistrates’ Court. The Magistrates’ Court lacks the power to impose a therapeutic order that ensures the accused receives services and treatment appropriate to their mental condition or to put in place supervision to protect the community. This is the case even when the accused is charged with many summary offences and may pose a risk of re-offending, which raises issues of community safety.42 The lack of a finding in the Magistrates’ Court also prevents the making of ancillary orders and other consequences aimed at protecting the community (such as a licence disqualification following an offence involving dangerous driving).43
The effect on accused and victims
  1. 5.33 The lack of a therapeutic and supervisory outcome, particularly for summary offences, means that the accused’s mental condition is not addressed,44 leading to a risk of further offending, and the possibility that the person will find themselves in the Magistrate’ Court again and cycle through the system.45 There is also no resolution from the legal system for victims of crime.46

Unfairness to the accused

  1. 5.34 The lack of jurisdiction in the Magistrates’ Court to determine unfitness to stand trial is inconsistent with the principles that underlie the CMIA. The current system does not operate ‘justly’, and is even discriminatory towards accused with a mental illness, intellectual disability or other cognitive impairment who may be unfit. This group of accused, because of their mental illness, intellectual disability or other cognitive impairment, do not have the same right as other accused to have their matter heard in a lower jurisdiction.47 One lawyer observed in a consultation with the Commission that these offences are treated more seriously because of the mental condition of the accused.48

Providing a power to determine unfitness to stand trial

Views in submissions and consultations

  1. 5.35 Most submissions and consultations that addressed this subject supported an extension of the process for determining unfitness to stand trial to the Magistrates’ Court to respond to the issues outlined above.49
  2. 5.36 Some stakeholders, however, thought that the CMIA regime was not suited to the Magistrates’ Court.50 One reason for this was the incompatibility of the complexity of the CMIA regime with the pressure on magistrates to dispose of cases quickly.51 Another concern was the lack of resources to enable the court to deal with such hearings.
  3. 5.37 Other barriers identified included the expertise of people who practise in that jurisdiction, including lawyers and magistrates.52 Some magistrates thought that an extension of the CMIA could only be effective if there were adequate resources, specialised training for magistrates, specialised court staff and a specialised list to manage these matters.53

The Commission’s conclusion

  1. 5.38 It is clear that the lack of a process under the current law for accused who may be unfit to stand trial in the Magistrates’ Court causes significant issues. The Commission agrees that steps need to be taken to remedy the inefficiencies in the system, the divergent approaches taken by those who work within it, and the unsatisfactory and often unfair results for accused, victims and the community.
  2. 5.39 In the Commission’s view, it is a futile exercise for police to charge a person only to be forced to withdraw the matter, or for a person to plead guilty only to receive an ineffective sanction. There needs to be a more effective system that will give accused the opportunity to break a cycle of interaction with the criminal justice system, enable resolution of matters for victims of crime and bring about lasting outcomes in terms of community safety.
  3. 5.40 The Commission also finds the tendency for accused in this jurisdiction to plead guilty when they are probably unfit to do so particularly concerning. Having inappropriate incentives to plead guilty compromises the fairness of the process and calls into question the accuracy of the pleas entered in the Magistrates’ Court in such cases.

 

  1. 5.41 In the Commission’s view, if a particular offence can be heard and determined in the Magistrates’ Court, magistrates should also be able to make the decisions necessary for that offence to be determined, including deciding the issue of unfitness to stand trial. The Commission considers that this is the best option to address the issues outlined above.
  2. 5.42 The Commission understands the concerns raised in some submissions and consultations about the limitations that currently exist for the Magistrates’ Court to adopt a process to determine unfitness to stand trial effectively. The Commission therefore predicates its recommendations in this area on a number of requirements concerning resources, expertise and services discussed further at [5.170]–[5.216] below. As discussed in the consultation paper, the Australian Capital Territory, South Australia, Tasmania and Western Australia allow magistrates to determine the issue of unfitness to stand trial.54 Further, at a lower court level in Victoria, members in the guardianship list at the Victorian Civil and Administrative Tribunal often make determinations of capacity. The Magistrates’ Court in Victoria could similarly build the resources and skills to do this.

Lack of power to make orders following a finding of not guilty because of mental impairment

Encourages ‘artificial decision making’

  1. 5.43 As with the Magistrates’ Court’s lack of jurisdiction to determine unfitness to stand
    trial, the Commission found evidence of ‘artificial decision making’ by parties brought about by the court’s lack of power to impose orders after findings of not guilty because of mental impairment.
Committing an accused to a higher court
  1. 5.44 One of the factors relevant to a magistrate’s determination of whether to grant summary jurisdiction is ‘the adequacy of the sentencing orders available to the court’.55 A magistrate may be less inclined to grant summary jurisdiction if they regard a discharge, and the absence of any power to impose an order, to be inadequate after a finding of not guilty because of mental impairment. This may be the case even though the type of offence would allow it to be heard and determined summarily. This would place the matter in the committal stream and if the committal criteria in the Criminal Procedure
    Act were satisfied, the accused would be committed for trial in the County Court.56
  2. 5.45 Police prosecutors are more likely to oppose summary jurisdiction for indictable
    offences triable summarily where the defence of mental impairment is raised because a discharge is the only option in the summary jurisdiction.57 Some stakeholders also observed that charges may be laid for indictable offences instead of (or in addition to) more appropriate summary offences so that the matter is then unable to be determined in the Magistrates’ Court.58
Not relying on the defence of mental impairment
  1. 5.46 To avoid the onerous process and supervision regime in the higher courts, lawyers often decide not to rely on the defence of mental impairment in the Magistrates’ Court, in the hope of having their client’s mental condition considered in sentencing.59 The Criminal
    Bar Association observed:

 

The fear of CMIA proceedings, their delay, costs and the perception of onerous outcomes militates against them being pursued. This coupled with the attraction of a lenient sentence (under Verdins) is often overwhelming. This often results in Court outcomes that do not reflect real criminality – and in some cases are effectively discriminatory and unjust.60

  1. 5.47 Victoria Legal Aid provided the Commission with the following case study (an abridged version is presented here):

Case Study: Tom

Tom has paranoid schizophrenia. In a paranoid state, Tom was throwing empty beer bottles at people who passed by his house which is on a busy street. Police were called and Tom was arrested for causing criminal damage …

A report was obtained indicating a defence of mental impairment. In response police charged Tom with additional charges and applied to have the matter dealt with in the committal stream. … despite a defence being open to him, Tom ended up pleading to one charge of criminal damage.61

  1. 5.48 As with the issue of unfitness to stand trial, pleading guilty may result in a conviction, meaning the person will have a criminal history and it becomes less likely that they will be able to credibly rely on the defence of mental impairment in subsequent matters.62 Pleading guilty when there may be a legitimate mental impairment defence also exposes an accused to a risk of being sentenced. This would be inappropriate and contrary to the principle of legitimate punishment, one of the principles that underpins the CMIA. It states that a person should not be held criminally responsible and punished for an offence if they are not morally blameworthy for their behaviour. If the sentence imposed is one of imprisonment, this would result in the person being detained in a prison, which is an inappropriate place for a person who has a legitimate mental impairment defence, as they may continue to have the underlying condition that gave rise to the defence, for example, a mental illness or an intellectual disability.63 Placement of such vulnerable people in
    the prison environment may worsen their condition and expose them to risks of harm from other prisoners. Prisoners who are experiencing mental illness can be transferred
    to Thomas Embling Hospital as security patients; however, there are limited beds for
    this cohort.

The lack of outcome

The effect on community safety
  1. 5.49 The discharge of a person found not guilty because of mental impairment compromises community safety. Without treatment or supervision, the offending behaviour of some accused could escalate and ultimately lead to more serious consequences for the accused and the community.64

 

  1. 5.50 In consultations the Commission was given examples of situations where it was worrying to discharge the accused without any supervision.65 Victoria Police noted in its submission:

This is concerning from a community safety perspective. For example, a person with dangerous driving offences may be discharged, and continue driving dangerously until the next occasion that they are identified, placing other road users at ongoing risk.66

  1. 5.51 Similar concerns to those discussed at [5.32] regarding ancillary orders were also raised in relation to the requirement that a person be discharged after a finding of not guilty because of mental impairment.67
The effect on the accused and victims
  1. 5.52 As a discharge follows a finding of not guilty because of mental impairment in the Magistrates’ Court, the court has no power to make an order to address the mental illness, intellectual disability or other cognitive impairment or ensure the person is supervised to address any risk they may pose to the community.68
  2. 5.53 As was observed at [5.33] in relation to the lack of power in the Magistrates’ Court to determine unfitness to stand trial, victims may also feel that a matter has not been properly resolved if the prosecution makes a decision to withdraw a charge for an offence because it will only end in a discharge.

Providing a power to make orders following a finding of not guilty because of mental impairment

Views in submissions and consultations

  1. 5.54 There was almost unanimous support from those who addressed this issue to give the Magistrates’ Court the power to make orders following a finding of not guilty because of mental impairment.69

The Commission’s conclusion

  1. 5.55 The Community Development Committee, which developed most of the policy underlying the CMIA in 1995, did not give magistrates the power to make orders in relation to people found not guilty because of mental impairment because it considered that offences heard in the Magistrates’ Court were less serious and therefore did not warrant the kind of treatment and supervision that would be required by someone who committed a more serious offence. The Committee expressed doubt that the supervision regime proposed (that was subsequently adopted by the CMIA) would be suitable for people charged with summary offences. The Community Development Committee also envisaged that such people would receive assistance through psychiatric or intellectual disability services or pre-trial diversion, recognising that there would need to be legislative change before a true pre-trial diversionary process could operate in Victoria.70
  2. 5.56 In the Commission’s view these reasons, while justified at the time the CMIA came into effect, now have significantly less force. First, the ‘safety net’ that the Community Development Committee envisaged (that is, that people who were found not guilty because of mental impairment in the Magistrates’ Court would receive psychiatric or intellectual disability services or be diverted at a pre-trial stage) has not eventuated.

 

  1. 5.57 Second, the offences that can be determined at the summary level that the Community Development Committee referred to have since increased in number and seriousness. The jurisdiction of the Magistrates’ Court now includes a number of serious offences that previously could only be heard in the higher courts. Making a threat to kill, stalking, assault with intent to rape and aggravated burglary are some examples of offences that can be very serious and are indictable offences that can be determined summarily. In addition, the use of the CMIA has changed. Under the ‘Governor’s pleasure’ system, the defence of mental impairment was largely raised as a defence for the most serious crimes such as murder. Now it is used for a wider range of offences including less serious offences that can be dealt with in the Magistrates’ Court.
  2. 5.58 Third, the CMIA can apply to the Magistrates’ Court without transferring across the supervision regime in the higher courts. It is possible, and indeed preferable, to design a scheme that suits the level of risk associated with the lower level of offending that can be dealt with in the Magistrates’ Court and is not as onerous as the scheme that applies in the higher courts.
  3. 5.59 The Victorian Parliament Law Reform Committee, whose recommendations the Commission is asked to consider, recommended that the Victorian Government consider amending the CMIA to allow investigations into an accused’s unfitness to stand trial in the Magistrates’ Court and Children’s Court.71
  4. 5.60 In light of the issues raised in submissions and consultations and the reasons outlined above, the Commission considers that it is necessary to give magistrates the power to make orders following a finding of not guilty because of mental impairment. Giving magistrates this power will avoid the need to work around the deficiencies in the system and instead provide a permanent solution to the issues. As with the recommendation to introduce a process to determine unfitness to stand trial, giving magistrates a power to make orders following a finding of not guilty because of mental impairment will result in a more consistent approach and better outcomes for accused, victims and the community.
  5. 5.61 The Commission notes that in its 2003 Report on People with Intellectual Disabilities at Risk: A Legal Framework for Compulsory Care, the Commission did not recommend that the CMIA be extended to the Magistrates’ Court.72 At the time, the Commission was of the view that this approach could result in supervision orders being made in relation to people who have been charged with minor offences. Since then, the Magistrates’ Court has started to deal with progressively more serious offences that the Commission considers justifies a reconsideration of this recommendation.

Recommendation

27 Parts 1–6 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) should be amended to provide for the Magistrates’ Court to:

(a) determine whether a person is unfit to stand trial

(b) conduct special hearings after a finding of unfitness, and

(c) make orders following a finding that the person is not criminally responsible because of mental impairment or that the person’s conduct has been proved on the evidence available (but the person is unfit to stand trial).

 

The Commission’s approach to developing a model for the Magistrates’ Court

  1. 5.62 Submissions, consultations and research undertaken by the Commission indicated that any model in the Magistrates’ Court should take the following factors into account:
  • The model needs to be suited to the Magistrates’ Court’s operation where the conduct of proceedings is very practical, flexible and expeditious, given its large workload.73
  • The model should not impose an onerous supervision regime, but take into account the risk associated with the lower level of offending in the Magistrates’ Court’s jurisdiction.74
  • The Magistrates’ Court sits in 54 different locations around Victoria.75 The model
    must therefore be able to work in metropolitan and regional areas.
  • The model must be able to effectively link up with expert assessments and area mental health and disability services.
  1. 5.63 In the following section the Commission sets out the legislative framework it
    recommends to extend the application of the CMIA in the Magistrates’ Court. The following section details:
  • the process that should apply when a question of unfitness to stand trial is raised in the Magistrates’ Court’s jurisdiction, including the different process that should apply when the question of unfitness is raised in a committal proceeding
  • the process of determining criminal responsibility following a finding of unfitness
  • the power to make orders following a finding of not guilty because of mental impairment
  • the offences or type of matters the CMIA should apply to
  • the orders the Commission recommends should be available in the Magistrates’ Court.
  1. 5.64 In making its recommendations, the Commission has focussed on recommending the key provisions required to extend the application of the CMIA in the Magistrates’ Court. There will be a significant number of consequential amendments and provisions that will need to be drafted in order to establish the operation of the CMIA processes recommended below in the Magistrates’ Court. In Chapter 2, the Commission recommends that a working party be introduced to implement the proposed reforms, should they be adopted by the Victorian Government, to ensure that any legislation drafted to implement the Commission’s recommendations includes any additional provisions from the CMIA as it currently applies to the higher courts.

Prevalence of indictable offences triable summarily under the CMIA

  1. 5.65 As part of its approach to develop a model for the CMIA in the Magistrates’ Court, the Commission has had regard to the prevalence of indictable offences triable summarily in CMIA cases.
  2. 5.66 Analysis of the 159 cases dealt with in the higher courts under the CMIA from 2000–01 to 2011–12 indicated that 59 (37.1 per cent) were determined in the County Court and involved a principal offence (or a form of that offence)76 that was an indictable offence triable summarily. This comprises 52.6 per cent of the 112 cases that were determined in the County Court. Therefore, half of cases over the 12-year period from 2000–01
    to 2011–12 that proceeded under the CMIA provisions 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.
  3. 5.67 The most common offences were: indecent act with a child under 16 years (11), intentionally causing injury (8), recklessly causing serious injury (8), reckless conduct endangering life (5) and arson (4). A full list of the offences is in Table 7 in Appendix D.
  4. 5.68 If the jurisdiction of the Magistrates’ Court were to be extended and the court did have the power to deal with unfitness or impose orders after findings under the CMIA, these cases would not necessarily proceed in the summary jurisdiction. There may be other reasons a magistrate may not grant summary jurisdiction under the Criminal Procedure Act, for example:
  • the seriousness of the offence, including the nature of the offence and the complexity of proceedings for determining the charge
  • the adequacy of the orders available to the court
  • whether a co-accused is charged with the same offence.77
  1. 5.69 However, the data indicates the possible effect of the introduction of the power to deal with the question of unfitness to stand trial and to make orders following a finding of not guilty because of mental impairment, as well as the findings that can be made after
    a finding of unfitness.

Process when a question of unfitness to stand trial is raised in the Magistrates’ Court

Options considered by the Commission

  1. 5.70 In the consultation paper, the Commission sought views on how any process for determining unfitness to stand trial should function, should the power to determine unfitness be extended into the Magistrates’ Court. A variety of suggestions were made:
  • the provision of a power to determine unfitness in some or all Magistrates’ Courts
  • the provision of a power to divert matters where unfitness is raised
  • utilisation of the Mental Health Court Liaison Service (MHCLS)
  • the creation of a centralised and specialised list for CMIA matters
  • adaptation of the Assessment and Referral Court (ARC) List that currently operates in the Magistrates’ Court.

 

  1. 5.71 Based on the suggestions and views from submissions and consultations and further research conducted during the consultation period, the Commission developed and considered two main options for reform to address a situation where the question of unfitness to stand trial is raised in the Magistrates’ Court.
  • Option 1—The first option, suggested in a number of submissions and consultations, involves giving the Magistrates’ Court a broad discretionary power to ‘divert’ people with a mental illness, intellectual disability or other cognitive impairment out of the criminal justice system.78 It involves a redirection to the civil mental health or disability system when the question of unfitness to stand trial is raised, with no determination of unfitness or criminal responsibility by the magistrate. This option is based on section 32 of the Mental Health (Forensic Provisions) Act 1990 (NSW). The aim of the first option is to link the accused to the services they need in an expeditious way.
  • Option 2—The second option, also supported in submissions and consultations, adapts the process for investigating unfitness to stand trial in the higher courts for the Magistrates’ Court. It involves a determination of unfitness and criminal responsibility by a magistrate. The second option is adapted so that it is more compatible with the way proceedings are conducted in the Magistrates’ Court, the existence of the committal process and the level of offending in that jurisdiction.
  1. 5.72 The Commission tested variations of these two options in consultations. They were also the subject of a roundtable discussion with police prosecutors, lawyers and service providers.
  2. 5.73 In testing these options, the Commission found a lack of support for Option 1 for the following reasons:
  • This option may result in inconsistent approaches between magistrates. For example, the discretionary nature of the power to divert an accused out of the criminal justice system, when applied by different magistrates, could lead to differences in outcomes for people charged with the same offence.79 Further, magistrates are not required to exercise the power, which may result in a tendency to rely on existing practices, such as transferring matters to a higher court for a determination of unfitness, rather than this proposed new process.80
  • Requiring a person to engage in treatment or services could be seen as unfair when there has been no determination of their criminal responsibility and the accused may have a valid defence that will acquit them.81
  • If the option were to be limited to people who could engage voluntarily, making an order enabling voluntary treatment or engagement with services is somewhat counterintuitive. The process will only capture people who are able to meet the criteria for compulsory treatment in the civil system but there will be others who do not fall into these categories even though they may be a danger to public safety. Further, people who are unfit to stand trial may be less likely to be able to engage voluntarily because of the severity of their mental illness, intellectual disability or other cognitive impairment.82
  • This option may be unsatisfactory for victims.83 It also prevents ancillary orders, such as a suspension of a driver’s licence, being made, which may have implications for community safety.84

 

  • There is a risk that anyone with a mental illness, intellectual disability or other cognitive impairment, even when they fall short of being unfit, would attempt to use this process, causing the system to overload.85
  1. 5.74 Option 2 received greater support in the roundtable. This option addressed most of the deficiencies of the first option. Requiring a magistrate to investigate unfitness will ensure a more consistent approach between magistrates and the process will cover all people who are unfit, not just those who are able to engage voluntarily with services or who meet the criteria for compulsory treatment in the civil system. Although Option 2 would involve more stages and potentially more adjournments with longer timeframes than Option 1, these disadvantages were thought to be manageable.86 The model proposed by the Commission is therefore based on the second option.

Recommended option—Option 2

  1. 5.75 The Commission recommends that a process based on Option 2 be introduced for the Magistrates’ Court to deal with matters where a question of unfitness to stand trial is raised.
  2. 5.76 The recommendation introduces a process detailed in Figures2and387 that is adapted from the process that currently applies in the higher courts and is tailored to the Magistrates’ Court. It can operate within the two streams in the Magistrates’ Court—the summary stream (Figure2) and committal stream (Figure3). The power to determine unfitness to stand trial is framed as arising only once jurisdiction has been determined and there has been a grant of jurisdiction to allow the indictable offence triable summarily to be dealt with as a summary matter. In doing so, it seeks to preserve the committal process and require that for matters in the committal stream, the committal process be completed before the question of unfitness is determined. This is consistent with the current approach for matters that are required to be transferred to the higher courts for determination and also ensures that if there is a possibility of committal, the evidence can be assessed and a finding made by the magistrate as to whether the matter should proceed prior to issues of unfitness to stand trial and criminal responsibility being determined.
  3. 5.77 In making its recommendations, the Commission seeks to establish a process for the magistrate to do one of the following when a person has been charged with a summary offence or an indictable offence triable summarily (and summary jurisdiction has been granted):
  • determine, on proper evidence, whether an accused is unfit to stand trial and then proceed to determine their criminal responsibility, or
  • having regard to particular factors, discharge the accused without a determination of unfitness and criminal responsibility where appropriate.
  1. 5.78 This approach seeks to give magistrates flexibility in dealing with cases where unfitness to stand trial is raised, and to either exercise appropriate discretion to direct the person away from the criminal justice system, or proceed down the CMIA pathway as modified for application in the Magistrates’ Court.
  2. 5.79 The recommendation aims to achieve the following:
  • bring matters where the question of unfitness to stand trial is raised into the oversight of a magistrate
  • promote consistency in decision making and avoid ‘artificial decision making’88
  • allow a more efficient, flexible and less formal process in the Magistrates’ Court and avoid the need for a matter to go through committal and transfer to a higher court for a determination of unfitness
  • give an accused who may be unfit the options and benefits that a person who is fit would be entitled to
  • provide meaningful outcomes for accused, victims and the community.

Figure 2: recommended process for unfitness in the Magistrates' Court

Figure 2: Flow chart of recommended process for unfitness to stand trial in the Magistrates' Court—summary stream 

Figure 3: Process for unfitness in the Magistrates' Court - committal stream 

Figure 3: Flow chart of recommended process for unfitness to stand trial in the Magistrates’ Court—committal stream

Recommendation

28 New provisions should be inserted into the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) to create the following process if the question of unfitness arises in a proceeding in the Magistrates’ Court for a summary offence or an indictable offence triable summarily:

(a) In the Magistrates’ Court, the question of the accused’s unfitness to stand trial is to be determined on the balance of probabilities by a magistrate.

(b) When the question of unfitness to stand trial is raised during the course of proceedings in the summary stream (or where summary jurisdiction has been granted), the magistrate must determine whether there is a real and substantial question as to the unfitness of the accused.

 

Recommendation cont’d

(c) If the magistrate determines there is a real and substantial question as to the unfitness of the accused, the magistrate must either:

(i) conduct an investigation into the unfitness of the accused to stand trial within three months from the magistrate’s determination that there is a real and substantial question as to unfitness, or

(ii) make an order under paragraph (m).

(d) If the magistrate finds the accused unfit to stand trial, the magistrate must either:

(i) proceed to hold a special hearing of the charge within three months, or

(ii) adjourn the matter under paragraph (l), or

(iii) make an order under paragraph (m).

(e) The special hearing should be conducted as nearly as possible as if it were a summary hearing.

(f) If the magistrate finds the accused fit to stand trial before the special hearing, the proceeding should be resumed in accordance with usual criminal procedures.

(g) For the purposes of paragraphs (b) and (c), if the magistrate considers that it is in the interests of justice to do so, the magistrate may order that the accused undergo an examination by a registered medical practitioner or registered psychologist and that the results of the examination be put before the court.

(h) Notwithstanding paragraphs (a)–(f), if the question of the accused’s unfitness to stand trial arises in a matter in the committal stream, the committal proceeding must be completed.

(i) If the accused is committed for trial, the question of the accused’s unfitness to stand trial must be reserved for consideration by the trial judge.

(j) If the accused is not committed for trial, and the matter is to be heard summarily, the question of the accused’s unfitness must be investigated by the magistrate in accordance with paragraphs (a)–(f).

(k) At any time before the investigation into unfitness to stand trial, the magistrate may extend the three-month period in paragraph (c) for a further period not exceeding three months. The three-month period may be extended more than once, provided the magistrate conducts the unfitness investigation within 12 months of the determination that there is a real and substantial question as to the unfitness of the accused.

(l) If the magistrate finds the accused unfit to stand trial but considers that the accused is likely to become fit within a period of 12 months, the magistrate may adjourn the matter for the period by the end of which the accused is likely to be fit to stand trial. The magistrate may extend the period of adjournment for a further period, but the total period of adjournment from the first finding of unfitness must not exceed 12 months.

 

Recommendation cont’d

(m) At any time during the course of proceedings in the summary stream (or where summary jurisdiction has been granted), after the magistrate determines there is a real and substantial question as to the unfitness of the accused, and before the special hearing, the magistrate may discharge the accused with or without conditions if the magistrate considers:

(i) that the accused does not pose an unacceptable risk of causing physical or psychological harm to another person or other people generally as a result of the discharge, and

(ii) the accused is receiving treatment, support or services in the community.

 

A ‘real and substantial question’ regarding unfitness to stand trial (paragraphs a and b)
  1. 5.80 The Commission recommends that in the Magistrates’ Court, the question of the accused’s unfitness to stand trial should be determined on the balance of probabilities by a magistrate. This is the same standard of proof that applies in the higher courts.
  2. 5.81 The Commission recommends that when the question of unfitness to stand trial is raised during the course of proceedings, the magistrate must determine whether there is a ‘real and substantial question’ regarding the accused’s unfitness. This is also in line with the process for investigating unfitness in the higher courts. Bringing the recommendations into line with what occurs in the higher courts will give magistrates the benefit of any precedent that exists on the subject and any precedent that may develop in the future. This requirement will also prevent triggering this process in circumstances where the question of unfitness has been raised with no legitimate basis.89 The Commission anticipates that parties will have to provide evidence of the accused’s mental condition to raise a real and substantial question regarding their unfitness.
Investigation into unfitness to stand trial (paragraph c)
  1. 5.82 The Commission recommends that if the magistrate determines there is a real and substantial question regarding the accused’s unfitness to stand trial, the Magistrates’ Court must conduct an investigation into unfitness. This investigation should occur within a period of three months after the magistrate determines there is a real and substantial question regarding the accused’s unfitness, consistent with the approach in the higher courts.
  2. 5.83 The power to deal with unfitness in the Magistrates’ Court is designed to operate only in those matters in the summary stream—that is, matters involving an indictable offence triable summarily where summary jurisdiction has been granted, or matters involving a summary offence. When a question of unfitness arises, the magistrate must deal with the issue of unfitness, but has a discretion as to whether they deal with it by proceeding to determine unfitness or by discharging the person without such a determination.

 

  1. 5.84 Providing for a discretion to deal with the issue of unfitness could result in inconsistent approaches between magistrates and a continuing reliance on existing practices, such as transferring matters to a higher court. Under the Commission’s recommendations there will be some scope to transfer a matter to a higher court, but this will be tied to the criteria for granting summary jurisdiction and the committal criteria. These criteria are discussed later in this chapter.90
Special hearing (paragraphs d–f)
  1. 5.85 The Commission recommends that if the accused is found unfit to stand trial, the Magistrates’ Court must hold a special hearing within three months to determine whether the accused’s conduct was proved on the evidence available, consistent with the timeline in the higher courts. In practice, however, the magistrate may choose to determine unfitness and hold the special hearing in a single hearing. The special hearing should be conducted as nearly as possible to a summary hearing.91 If the magistrate finds the accused fit, a special hearing is not conducted and the proceeding is resumed in accordance with the usual criminal procedure in the Magistrates’ Court.
Building in flexibility—power to adjourn (paragraphs k and l)
  1. 5.86 The Commission recommends that the Magistrates’ Court have the flexibility to adjourn proceedings in appropriate cases to enable an accused to ‘become fit’, and if this occurs, to then deal with the accused using ordinary Magistrates’ Court processes. The need for flexibility and the opportunity for adjournments to be built into the system was emphasised, as these factors were important to provide the accused with the opportunity to stabilise and have their fitness restored.92 This is consistent with the recommendations made in Chapter 3 to ‘optimise’ the fitness of accused.93 Although the Magistrates’ Court already has a general power to adjourn proceedings94 and this already happens in practice in the Magistrates’ Court when the question of unfitness is raised, it is desirable to link the power to adjourn specifically to CMIA matters.
  2. 5.87 The Commission recommends that there be a power to adjourn a matter at two key stages in the process:
  • prior to an investigation and determination of unfitness to stand trial
  • after a determination of unfitness and prior to a special hearing.
Power to adjourn prior to an investigation and determination of unfitness to stand trial
  1. 5.88 In paragraph c of Recommendation 28 above, the Commission recommends that a magistrate should be required to conduct an investigation into the unfitness of an accused within three months of determining that there is a real and substantial question of unfitness.
  2. 5.89 In paragraph k of Recommendation 28, there is provision for this period to be extended. The Commission recommends that at any time after the magistrate determines there is a real and substantial question concerning the unfitness of the accused, but before the special hearing, the magistrate may extend the three-month period referred to in paragraph c for a further three months. The Commission recommends that this three-month period be able to be extended more than once, provided the investigation into unfitness is conducted within 12 months of the determination that there is a real and substantial question as to the unfitness of the accused.
  3. 5.90 In the higher courts an investigation into unfitness to stand trial must be conducted within three months of the committal. This period is renewable indefinitely. The Commission considers that while there may be good reasons for the period to be renewable indefinitely in the higher courts (for example, because it takes longer to obtain a court date), it is desirable to cap it at 12 months in the Magistrates’ Court. This is consistent with the quicker resolution of matters in that jurisdiction and to avoid the accused being held for long periods of time in relation to offences that are less serious than those ordinarily determined in the higher courts.
Power to adjourn after a determination of unfitness and prior to a special hearing
  1. 5.91 In paragraph l of Recommendation 28, the Commission recommends that if the magistrate finds the accused unfit to stand trial but determines that they are likely to become fit within 12 months, they may adjourn the matter for a period by the end of which they consider the accused is likely to be fit to stand trial. A limit of 12 months is consistent with the period allowed in the higher courts for an accused to become fit.
  2. 5.92 In adjourning the matter, the magistrate could refer the accused to the Court Integrated Services Program (CISP) or the Mental Health Court Liaison Service (MHCLS) officer who could provide linkages to treatment and services. In Chapter 3, the Commission makes recommendations on the use of education and treatment during the adjournment period to optimise a person’s fitness to stand trial.95 These recommendations could also apply to the Magistrates’ Court.
Building in flexibility—power to discharge (paragraph m)
  1. 5.93 A feature of the process in the Magistrates’ Court that does not apply in the higher courts is paragraph m of Recommendation 28—the provision of a power for the magistrate to discharge an accused at any time after it has been determined that there is a real and substantial question of unfitness, but before the special hearing.
  2. 5.94 Option 1, discussed earlier, was developed based on approaches in New South Wales
    and the Commonwealth. In both jurisdictions, magistrates do not have provisions
    enabling summary courts to determine unfitness to stand trial.96 However, both jurisdictions provide summary courts with limited discretionary powers to adjourn proceedings, grant bail, dismiss proceedings and discharge the accused or make any
    other appropriate order in relation to accused who have a mental illness or intellectual
    or developmental disability.97
  3. 5.95 The disadvantages of this approach, and Option 1 in particular, outlined at [5.73], resulted in the Commission recommending a process based on Option 2. While there was little support in consultations for the adaptation of the power to order a ‘diversion’ or to make orders for treatment or services without determinations of unfitness, the inclusion of a limited discretionary power to discharge an accused and direct them away from the CMIA pathway in particular circumstances was supported as part of the model in the Magistrates’ Court.
  4. 5.96 A number of stakeholders supported the inclusion of this discretion, expressing the view that it was important to retain flexibility by having the option of not proceeding with charges in particular circumstances. This was seen as important so that accused were not picked up by the CMIA pathway and made subject to compulsory treatment or services where it was considered unnecessary or inappropriate having regard to the risk posed to the community and the person’s need for treatment or services.98 This may be
    appropriate where the offending behaviour is such that the risk posed to the community is low, where the accused’s condition has stabilised and there are appropriate supports in place for the person in the community, and there is no need for supervision of the accused under the CMIA.
  5. 5.97 In effect this recommendation seeks to replicate what already occurs in practice. That is, the prosecution can withdraw charges where unfitness is raised and the offence is such that the prosecutor considers it appropriate to withdraw charges. However, under the proposed model the issue is brought within the oversight of a magistrate. This enables the matter to be dealt with in a more consistent manner in accordance with the specific principles underpinning the CMIA, rather than standard factors relevant to the exercise of the prosecutorial discretion.
The process in committals (paragraphs h–j)
  1. 5.98 This chapter has so far discussed the Commission’s recommendation in relation to the summary stream. The Commission recommends that where a matter is in the committal stream, the committal proceeding should be completed.
  2. 5.99 If there is a determination of the committal proceeding, and the accused is committed for trial, the question of unfitness to stand trial is reserved for determination by the trial judge in the jurisdiction to which the person is committed. If at the determination of the committal proceeding, the accused is not committed for trial, the court must discharge the accused.
  3. 5.100 Prior to the determination of the committal proceeding, if the court grants summary jurisdiction, the question of the accused’s unfitness should be investigated by a magistrate in accordance with the procedures the Commission recommends for the summary stream.
  4. 5.101 A separate procedure in the committal stream will give accused the benefit of a discharge, while ensuring that matters that should be heard in a higher jurisdiction can proceed through the committal process and be transferred in accordance with the usual procedures. As noted in the consultation paper, similar powers exist in the Australian Capital Territory,99 South Australia100 and Tasmania.101
The power to order an independent expert assessment (paragraph g)
  1. 5.102 Submissions and consultations indicated that it was important that magistrates have a power to order an independent expert assessment of unfitness to stand trial for a number of reasons:
  • A court-ordered report could be viewed as more impartial, negating the need for two expert reports.102 It could also avoid unnecessary delay in obtaining reports.103
  • Court-ordered reports could also address any inequality in resources, which now results in some accused being able to afford expert reports, while others cannot.104 It will avoid situations where accused plead guilty because they cannot afford a report.105

 

  1. 5.103 The Commission agrees with these views and recommends that magistrates have the power to order an independent expert assessment of unfitness to stand trial. This can assist magistrates in determining whether there is a real and substantial question as to the accused’s unfitness, and in conducting any subsequent investigation into unfitness.
  2. 5.104 The Commission proposes that this power be discretionary, and that the magistrate only order a report if it is in the interests of justice. Making the power discretionary attempts to strike a balance between ensuring that the court can access quality expert reports if needed, while avoiding parties relying on the court to order expert reports in every case. The ‘interests of justice’ test is the same test that a judge in a higher court must apply in requiring an accused to undergo an expert assessment.
Establishing a list to manage matters involving unfitness to stand trial
  1. 5.105 In making its recommendation on the Magistrates’ Court, the Commission is not recommending an extension of the Assessment and Referral Court (ARC) List to manage these matters, or the establishment of a specialised list to deal with matters where unfitness is raised.
  2. 5.106 While the value of the ARC List was widely acknowledged, the Commission does not recommend an extension of this list for accused who may be unfit to stand trial.106 Stakeholders indicated that this option could be resource-intensive and time-consuming.107 The ARC List, in its current form, relies on the accused’s consent to enter the list, is based on an acceptance of wrongdoing and is dependent on their ability to engage in the program.108 These requirements may be problematic for people who are unfit to stand trial. Further, the list may be difficult to operate outside Melbourne.109
  3. 5.107 A number of stakeholders suggested that matters concerning unfitness to stand trial could be managed in a ‘fitness list’,110 or even a centralised ‘fitness list’ in Melbourne.111 Others thought that it would not be necessary to have a list in a regional court.112
  4. 5.108 On balance, the Commission considers that it is best to leave it to the courts to determine how to operationalise the Commission’s recommendations. Implementation of the recommendations will depend largely on the individual courts’ resources and location. However, the Commission would advise against a centralised list in Melbourne, which the Commission considers would be difficult to implement. As a Mental Health Court Liaison Service (MHCLS) officer observed:

The life stories of the clients are really complicated. Once one factors in multiple court dates, assessments and geographical distance, such an arrangement could be unmanageable. Further, Melbourne may not be able to engage as closely with the services in regional areas. Often mental health and disability services will ‘come to
the party’ because they have close relationships and connections with the court and have proximity in terms of location. With a centralised court, these connections may
be diluted.113

Linkages between the Magistrates’ Court and the civil system

  1. 5.109 The Mental Health Court Liaison Service (MHCLS) is a court-based assessment and advice service provided by the Victorian Institute of Forensic Mental Health (Forensicare) (in metropolitan areas) and area mental health services (in rural and regional areas). The main role of the MHCLS is to provide mental state assessments and advice regarding the management and needs of accused, and if necessary, referring people to area mental health services for treatment and case management. The MHCLS sometimes undertakes assessments for the purpose of determining whether an accused is unfit to stand trial.
    The MHCLS currently operates in seven metropolitan Magistrates’ Courts and five
    regional courts.

Views in submissions and consultations

  1. 5.110 The Commission received positive feedback on the MHCLS. MHCLS officers, who were described as a ‘fabulous resource’, were seen as being of considerable assistance in facilitating links between the court and area mental health and disability services.114
  2. 5.111 However, it was also noted that the focus of the MHCLS was primarily on links with mental health services and not disability services.115 In the Commission’s consultation with the Office of the Senior Practitioner and the Disability Practice Leader (Office of Professional Practice, Department of Human Services), it was noted that courts used to have a disability liaison service, but that this service no longer existed.116
  3. 5.112 It was suggested that the expansion of the MHCLS, if the CMIA was implemented in the Magistrates’ Court, would assist in supporting the operation of the CMIA in that jurisdiction.117

The Commission’s conclusion

  1. 5.113 In the Commission’s view the MHCLS should be extended to a greater number of Magistrates’ Courts in Victoria. Further, the Commission considers that such an extension should also involve the resourcing and provision of disability liaison services, in addition to mental health liaison services.
  2. 5.114 The extension of the MHCLS will support the Commission’s recommendations to expand the operation of the CMIA in the Magistrates’ Court. In particular, the MHCLS could:
  • provide magistrates with information that could assist them in determining whether there is a real and substantial question as to the unfitness of the accused—MHCLS officers often have access to mental health or disability records which can indicate the history of an accused’s mental condition118
  • assist the court in liaising with experts if the court orders that the accused undergo an expert examination
  • link the accused to treatment, support or services in the community to help them become fit to stand trial or to facilitate their discharge (provided the accused does not also pose an unacceptable risk of physical or psychological harm to other people)
  • coordinate the reports and information to be provided to the court when deciding whether to declare a person liable to supervision or whether a supervision order should be custodial or non-custodial.

 

Recommendation

29 The Mental Health Court Liaison Service (MHCLS) should be extended and this extension resourced. The extension of the service should include the provision of disability liaison services, in addition to mental health liaison services.

 

The power to make orders following CMIA findings in the Magistrates’ Court

  1. 5.115 In the consultation paper, the Commission asked for views on whether the Magistrates’ Court should have the power to make orders in relation to people found not guilty because of mental impairment. The Commission also sought views on the options for expanding the orders in the Magistrates’ Court if the court was provided with the jurisdiction to make orders in addition to a discharge.
  2. 5.116 The Commission identified the following orders as possible options for consideration in the consultation paper:
  • orders under the CMIA supervision regime—time-limited custodial and non-custodial supervision orders adapted to the Magistrates’ Court
  • orders under the Sentencing Act 1991 (Vic)—for offenders with a mental illness119 or offenders with an intellectual disability120
  • orders under the civil mental health and disability system
  • processes potentially available in the Magistrates’ Court, including the ARC List, CISP, MHCLS and diversion
  • the development of new orders and processes specific to the Magistrates’ Court.121
  1. 5.117 This section details the Commission’s approach to providing a power to the Magistrates’ Court to make orders following a finding of not guilty because of mental impairment. It addresses the following three aspects of the Commission’s approach to introducing orders into the Magistrates’ Courts under the CMIA:
  • whether there should be a power to make orders
  • whether the power should be limited to indictable offences triable summarily or also include summary offences
  • what orders should be available following a finding under the CMIA in the Magistrates’ Court.

Whether there should be a power to make orders

  1. 5.118 Section 5(2) of the CMIA currently provides:

If the Magistrates’ Court finds a person not guilty because of mental impairment of a summary offence or an indictable offence heard and determined summarily, the Magistrates’ Court must discharge the person.

  1. 5.119 As identified at [5.54], there was almost unanimous support from stakeholders who addressed the issue in submissions and consultations for the provision of a power for the Magistrates’ Court to impose orders following a finding of not guilty because of mental impairment.
  2. 5.120 Introducing a power to make orders following a finding of not guilty because of mental impairment in the Magistrates’ Court requires an amendment to the CMIA. This would provide the Magistrates’ Court with the power to declare the accused liable to supervision or order that the accused be released unconditionally following a finding of not guilty because of mental impairment and following findings made under the unfitness and special hearing process in Recommendation 28.
  3. 5.121 The decision to unconditionally release a person may be appropriate particularly where the offences charged are less serious in nature, and where the person no longer poses a risk to the community, and the magistrate is satisfied that there are existing supports in the community for the person.122 The factors that the Commission sees as relevant to decision making under this recommendation are discussed below at [5.146]–[5.153].
  4. 5.122 In the terms of reference, the issue of orders was framed solely in relation to whether there should be additional orders following a finding of not guilty because of mental impairment. As the Commission has made recommendations to introduce a process for the Magistrates’ Court to determine unfitness to stand trial and criminal responsibility following a finding of unfitness (Recommendation 28), the Commission has formed the view that the same orders should also be available following findings under this proposed new process.

Recommendation

30 Section 5(2) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) should be amended to provide that if the Magistrates’ Court finds a person not criminally responsible because of mental impairment or that conduct has been proved on the evidence available (but the accused is unfit to stand trial), the Magistrates’ Court may:

(a) declare the person liable to supervision, or

(b) order that the person be released unconditionally.

In deciding whether to declare the person liable to supervision or to unconditionally release the person, the Magistrates’ Court must have regard to whether the person would pose an unacceptable risk of causing physical or psychological harm to another person or other people generally.

 

Whether orders should be limited to certain offences

  1. 5.123 The terms of reference ask the Commission to consider whether any expansion of orders a magistrate can make should be limited to indictable offences that are heard and determined summarily or also include certain summary offences. The Commission therefore considered whether magistrates should have the power to make orders following a finding under the CMIA in relation to all offences, or whether there are some offences which should not come under the Magistrates’ Court’s jurisdiction.

 

  1. 5.124 During consultations, the Commission discussed options for the application of the CMIA in the Magistrates’ Court to particular offences:
  • indictable offences triable summarily123
  • offences of a certain maximum penalty
  • violent offences or sex offences that can be heard and determined in that jurisdiction124
  • offences that can be heard and determined in that jurisdiction that have implications for the safety of the public
  • all offences that can be heard and determined in that jurisdiction.
  1. 5.125 There were mixed views in submissions and consultations on the appropriate extent of the CMIA’s application in the Magistrates’ Court. Some thought that the CMIA process and powers should cover all offences that magistrates would typically determine (all matters that can be heard summarily).125 Some suggested that accused who were involved in summary or relatively low level offending should be discharged.126
  2. 5.126 At the Commission’s roundtable meeting on the Magistrates’ Court, most participants preferred a model where the CMIA applies to all offences that can be heard and determined in that jurisdiction. Most participants thought that there was a need for summary offences to come under the CMIA because some summary offences, such as those involving dangerous driving, could have significant implications for community safety.127 A summary offence could cause more risk to the community than an indictable offence triable summarily (for example, a property offence).128 It was noted that the fact that an offence is a summary offence is not necessarily reflective of the risk the person poses to the community.
  3. 5.127 Any other way of drawing a jurisdictional limit using categories of offence could be problematic and exclude offences that risk community safety. For example, using the maximum penalty fails to distinguish between the actual level of harm risked to the community in the particular case. Further, attempting to categorise offences by a particular level or type of harm can be a very difficult exercise.
  4. 5.128 The Commission therefore recommends that the power of the Magistrates’ Court to make orders following findings under the CMIA apply to both summary offences and indictable offences triable summarily. This includes an order to declare a person liable to supervision or unconditionally release a person following a CMIA finding and an order for the supervision of a person declared liable to supervision.
  5. 5.129 More broadly, the Commission considered whether the application of the CMIA in the Magistrates’ Court should be limited to matters where the issue of unfitness to stand trial or the defence of mental impairment is uncontested between the parties. Participants at the Commission’s Magistrates’ Court roundtable generally agreed that it would be fairer for the same options to be available to all accused, whether the matter is contested or not.129 The Commission does not recommend limiting the Magistrates’ Court’s jurisdiction in this way.

 

Recommendation

31 The power to declare a person liable to supervision and make orders for supervision or to unconditionally release a person following a finding under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) should apply to both summary offences and indictable offences triable summarily where summary jurisdiction has been granted.

 

What orders should be available

  1. 5.130 Extending the CMIA to the Magistrates’ Court prompts an examination of what orders should be made available to magistrates following a finding that the accused committed the offence charged in a special hearing or a finding of not guilty because of mental impairment.
  2. 5.131 In the consultation paper, the Commission considered a number of orders that could be introduced in the Magistrates’ Court. These are summarised above at [5.116]. Submissions and consultations overwhelmingly supported the adaptation of current supervision orders (to a limited supervision order) in the Magistrates’ Court.
Civil and criminal orders
  1. 5.132 There was also support for powers to make a civil mental health or disability order under the Mental Health Act 1986 (Vic), as at 1 July 2014 the Mental Health Act 2014 (Vic) (‘MHA 2014’),130 or the Disability Act 2006 (Vic), or a referral to the Office of the Senior Practitioner (Department of Human Services) or the Office of the Chief Psychiatrist (Department of Health) to consider the imposition of a civil order.131
  2. 5.133 The Commission concludes that magistrates should not have a power to impose a civil order or to refer the matter to the Office of the Senior Practitioner or the Office of the Chief Psychiatrist. Consultations and participants at the roundtable indicated that a person who would require an order under the CMIA would not necessarily meet the criteria for a civil mental health or disability order.132 The Commission considers that making such a recommendation could risk accused being placed on civil orders where it is inappropriate, or result in situations where a person needs to be subject to supervision but does not satisfy the civil criteria.133 It was also suggested that if the magistrate decides that a less restrictive order could be made, they could refer the accused for an assessment of their suitability for treatment and services under the civil system.134 However, similar concerns were raised about the referral of a person by a criminal court for assessment for compulsory treatment under the civil system.135

 

  1. 5.134 Many stakeholders expressed frustration regarding the infrequent use of the orders available under the Sentencing Act for offenders with a mental illness. The infrequent use of these orders was often attributed to a general reluctance of the civil mental health system to engage with clients from the criminal justice system. This was said to function as a barrier for people in the criminal justice system to accessing the civil mental health system. Stakeholders identified a number of factors that underpin this reluctance, including cultural reasons, a lack of appropriate facilities for forensic clients, the risk that can be posed to other patients in the civil system and a lack of resources. Although it was acknowledged that not all civil mental health services were reluctant to take forensic clients, overall the experience of stakeholders was that these sentencing orders are infrequently used and are effectively ‘empty orders’.136 One magistrate noted that in the majority of cases, when the court requested an assessment of a person as to their suitability for treatment or services, the person was assessed as not suitable.137
  2. 5.135 The Commission is mindful of not creating further ‘empty orders’ or orders that result in the forensic population being ‘squeezed’ into the civil population. In the Commission’s view, if a person requires supervision, they should be placed on a CMIA order instead of a civil system order. The Commission has made recommendations to build linkages between criminal and civil systems to support these CMIA orders, including:
  • an extension of the Mental Health Court Liaison Service (MHCLS) (this chapter)
  • requiring the court to consider whether the person is receiving treatment or services in the civil system (Chapter 10)
  • supporting the development of workforce strategies to increase the capacity of the general mental health and disability sector to undertake forensic mental health and disability work (Chapter 11).
Two-year custodial and non-custodial supervision orders
  1. 5.136 In the Commission’s view, custodial and non-custodial supervision orders of a maximum of two years should be available in the Magistrates’ Court. Given the level of offending usually dealt with in the Magistrates’ Court, and the corresponding risk to the community, it is important to avoid drawing up a rigorous supervision regime for these offences. An indefinite supervision order is inappropriate for the offences that can be heard and determined summarily in the Magistrates’ Court. It could result in further artificial decision making where accused have the incentive to plead guilty when they could legitimately come under the CMIA.
  2. 5.137 A period of two years was also the period suggested by some stakeholders and at the Commission’s roundtable on the Magistrates’ Court.138 This is consistent with the maximum term of imprisonment that the Magistrates’ Court may impose for a single summary offence or indictable offence triable summarily.139 The Commission therefore considers that a fixed period of two years is appropriate. A treatment or support plan could be attached to the supervision order.

 

  1. 5.138 The main difficulty of having a two-year order is that the person may still need treatment or services when the order lapses.140 The Commission acknowledges that this is a possibility with a limited order. However, the Magistrates’ Court can still transfer matters involving indictable offences triable summarily to a higher court, which could act as a safety net for matters that may require a longer order. The suitability of the orders available should be factored into the decision regarding summary jurisdiction, such that if the magistrate considers that a two-year supervision order is not appropriate in the case, summary jurisdiction should be refused and if the matter passes the committal stage, it would be transferred to the County Court for determination. The Commission does not consider that an order of longer than two years would be appropriate for summary offences.
  2. 5.139 The Commission sought views in its roundtable on the Magistrates’ Court on whether a supervision order should be limited to non-custodial orders in the Magistrates’ Court. Based on feedback received, the Commission has formed the view that it is necessary for custodial supervision orders to be available in the Magistrates’ Court. As discussed earlier, there may be some offences triable summarily that would require a custodial option to protect the safety of the community. Further, if the Magistrates’ Court did not have the power to impose custodial supervision orders, more matters may be required to go through the committal process and transferred to a higher court so that a custodial order can be imposed.

Recommendation

32 Section 5(2) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) should be amended to provide that if the Magistrates’ Court declares that a person is liable to supervision:

(a) the court must make either of the following supervision orders in respect of the person:

(i) a custodial supervision order, or

(ii) a non-custodial supervision order; and

(b) the court must set a fixed term of the supervision order of two years, at the end of which the supervision order lapses.

 

Review of supervision orders
  1. 5.140 The Commission recommends that there should be a liberty to apply for a supervision order to be reviewed at any time after a period of six months after imposition of the order. The Commission considers this is necessary so that a person is not placed on a custodial supervision order for two years without the prospect of review. The Commission considered including fixed review periods but concluded that as this would result in reviews being undertaken even in cases where they are not needed, it was not appropriate.

Recommendation

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

(a) The person subject to the order or the person having the custody, care, control or supervision of that person has the right to apply to the court for a variation of the order (in the case of a custodial supervision order) or a variation or revocation of the order (in the case of a non-custodial supervision order) during the term set by the Magistrates’ Court.

(b) In a review conducted under paragraph (a), the court must either:

(i) confirm the order

(ii) vary the conditions of the order

(iii) for a custodial supervision order, vary the order to a non-custodial supervision order, or

(iv) for a non-custodial supervision order, vary the order to a custodial supervision order or revoke the order.

 

Lapsing of supervision orders
  1. 5.141 The effect of these recommendations is to create a regime whereby a custodial supervision order or a non-custodial supervision order may be imposed with no mandated review periods. The Commission has provided a right for the person subject to the order or a person responsible for their supervision to apply for a review of the order to ensure that where circumstances change during the period of the order, the order may be reviewed and varied if necessary. The Commission’s intention is that the order will lapse once the two-year period has ended.
  2. 5.142 If there are continuing concerns about the person’s mental condition or their risk of causing harm, the Commission’s view is that regard should be had to whether the person should be made subject to an order under the civil system, provided by the MHA 2014141 (or the Disability Act). This approach is consistent with the principle of least restriction and the recommendations made throughout this report that there should be more awareness and regard paid to whether a person is receiving services in the civil system that address their risk and needs. The recommendations are aimed at creating a system of supervision in the Magistrates’ Court where the level of restriction is more consistent with the lower level of risk to community safety in summary matters. In the Commission’s view, if there are concerns in a particular matter about a two-year custodial supervision order being imposed, this would provide good reason for a magistrate not to grant summary jurisdiction and for the matter to be transferred to the County Court. Once a finding is made, a custodial supervision order can be imposed that provides the more rigorous and staggered regime of release.

 

  1. 5.143 This reasoning is also based on an analysis of the orders imposed in the 159 cases determined in the County Court under the CMIA from 1 July 2000 to 30 June 2012 in cases involving adults and indictable offences triable summarily. The Commission has identified that there were 59 cases (37.1 per cent of all cases determined in the higher courts) that could have been determined in the Magistrates’ Court if it had jurisdiction under the CMIA, comprising half of the 112 matters determined in the County Court. In the great majority of these cases (48 cases, 81.6 per cent), the court imposed a non-custodial supervision order.142
  2. 5.144 More detailed examination of the offence distribution by order type (see Table 7 in Appendix D) illustrates the nature and seriousness of the offences that could have been dealt with in the Magistrates’ Court and where supervision could have been imposed:
  • Custodial supervision orders were imposed in cases where the principal offence was intentionally causing injury, recklessly causing serious injury and reckless conduct endangering life.
  • Non-custodial supervision orders were imposed for a range of different offences, including sexual offences, assaults and property offences, including minor offences such as theft and theft of a motor vehicle.
  1. 5.145 In some, but not all, of the cases involving indictable offences triable summarily, judgments were available which gave more information about the nature of such cases and the people requiring supervision. For example, of the 11 cases where the principal offence was indecent act with a child under 16, seven resulted in a non-custodial supervision order and four in an unconditional release. A common feature of these cases was that the person charged with the offence was unfit to stand trial, commonly due to an intellectual disability. In four cases, the offences were historical offences and, at the time the offences were charged, the person was elderly and had dementia. This contrasts with the features of the cases where the principal offence was an offence of violence or endangerment. Where such information was available in these cases, the issue was more commonly the defence of mental impairment, rather than unfitness to stand trial.

Application of higher court provisions to the Magistrates’ Court

Factors relevant to decision making in relation to orders

  1. 5.146 The Commission’s recommendations introduce a number of decisions to be made by the Magistrates’ Court after a person has been made subject to a finding under the CMIA—a finding of not guilty because of mental impairment or one of having committed the offence charged (after being found unfit to stand trial). These decisions include whether to:
  • declare a person liable to supervision or unconditionally release the person
  • impose a custodial supervision order or a non-custodial supervision order
  • confirm the order
  • vary the conditions of any order
  • vary a custodial order to a non-custodial supervision order (and vice versa)
  • revoke a non-custodial supervision order.

 

  1. 5.147 The overarching principle under the CMIA as it operates in the higher courts is contained in section 39 of the CMIA. The provision states that in making decisions to make, vary or revoke a supervision order, to remand a person in custody or in relation to granting or revoking extended leave, a court is to apply the following principle:

restrictions on a person’s freedom and personal autonomy must be kept to the minimum consistent with the safety of the community.143

  1. 5.148 In Chapter 2, the Commission recommends that this principle apply to all decision makers under the CMIA.
  2. 5.149 Currently, once a person has been declared liable to supervision in the higher courts, the choice between a custodial supervision order and non-custodial supervision order, and the decision to vary or revoke an order, are subject to a number of factors set out in section 40 of the CMIA, such as the nature of the person’s mental impairment or other condition or disability.
  3. 5.150 Section 40 also contains a number of relevant provisions that a court must comply with prior to releasing a person unconditionally or reducing the level of supervision to which a person is subject. This includes the court:
  • obtaining a report on the person’s mental condition under section 41 of the CMIA
  • obtaining a report from the person responsible for supervising the person
  • being satisfied that the person’s family members and the victim of the offence have been given reasonable notice of the hearing at which the release or reduction is proposed to be ordered
  • considering any reports from the family members or victim.144
  1. 5.151 Under the CMIA as it currently operates, there is also a requirement that the court request a ‘certificate of available services’ if it is considering a supervision order committing a person to custody or making any other order to place a person in custody or for the person to receive treatment or services under the CMIA. These must be provided by either the Department of Human Services or Department of Health, depending on the underlying mental condition of the accused.
  2. 5.152 In Chapter 9, the Commission recommends improvements to the procedure concerning the report on the person’s mental condition under section 41 of the CMIA and the certificate of available services. In Chapter 10, the Commission makes recommendations to modify the factors to which a court must have regard in section 40 of the CMIA.
  3. 5.153 The Commission has formed the view that the same key features of the CMIA as it operates in the higher courts (subject to the Commission’s recommendations in Chapter 10) should apply to decision making in relation to CMIA orders in the Magistrates’ Court. These include those described above and other relevant provisions in the following sections of the CMIA:
  • sections 39 and 40(1)–(3) on the principles and factors relevant to decision making
  • section 42 providing for a court report from family members and victims
  • a section 47 certificate.

 

Recommendation

34 Part 6 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic), including sections 40, 41 and 42, should apply to the Magistrates’ Court’s consideration of whether to make, vary or revoke a supervision order.

 

Managing breaches of supervision orders in the Magistrates’ Court

  1. 5.154 The CMIA outlines processes for managing a person who has breached their supervision order.145 These processes are described in more detail in Chapter 11. The Commission also makes recommendations in Chapter 11 to provide greater flexibility in managing breaches of supervision orders under the CMIA. The Commission considers that the processes for breaches in the CMIA, amended to adopt Recommendations 99 and 100 in Chapter 11, will be broad enough to manage breaches of supervision orders in the Magistrates’ Court. The Commission therefore proposes that breaches of supervision orders in the Magistrates’ Court be dealt with in this way.

Division of jurisdiction

Criteria for granting summary jurisdiction

  1. 5.155 Under the Criminal Procedure Act, in deciding whether an indictable offence that can be determined summarily should remain in the summary jurisdiction, the magistrate must consider a number of factors. These are:
  • the seriousness of the offence
  • the adequacy of sentences available to the court
  • whether a co-accused is charged with the same offence
  • any other matter that the court considers relevant.146
  1. 5.156 The Commission recommends that these criteria be amended so that the magistrate is required, in matters where there is a real and substantial question of unfitness, to have regard to the statutory principles recommended by the Commission to be introduced in the CMIA.
  2. 5.157 This is consistent with the Commission’s view that there should be a specialised approach to those who come under the CMIA and the need to promote therapeutic outcomes and avoid unreasonable delay for this group of people.

Recommendation

35 Section 29(2) of the Criminal Procedure Act 2009 (Vic) should be amended to introduce a requirement that in deciding whether the Magistrates’ Court may hear and determine summarily a charge for an indictable offence, if there is a real and substantial question of unfitness to stand trial, the court is to have regard to the statement of principles for decision makers in Recommendation 3.

 

Consenting to summary jurisdiction

  1. 5.158 Under section 29 of the Criminal Procedure Act, the accused must ‘consent’ to a summary hearing of a charge for an indictable offence. This requirement would need to be adapted if the CMIA is to apply in the Magistrates’ Court because an accused who is unfit to stand trial may not be able to ‘consent’ to a summary hearing.
  2. 5.159 In the Commission’s view, the court should be empowered to waive the requirement that an accused consent to the summary hearing of a charge for an indictable offence where the accused is unable to ‘consent’ to a summary hearing, or where the legal practitioner appearing for the accused cannot obtain instructions on whether the accused consents.

Recommendation

36 Section 29 of the Criminal Procedure Act 2009 (Vic) should be amended so that the Magistrates’ Court may waive the requirement that an accused consent to the summary hearing of a charge for an indictable offence if satisfied that:

(a) the accused is unable to consent to a summary hearing or the legal practitioner appearing for the accused is unable to obtain instructions on whether the accused consents to a summary hearing, and

(b) there is a real and substantial question of the accused’s unfitness.

 

Committal process

Conduct of committal proceedings where issues of unfitness to stand trial and the defence of mental impairment are raised

  1. 5.160 A committal proceeding has a number of purposes.147 Its main purpose is to determine whether there is evidence of sufficient weight to support a conviction of the offence charged. This is a means of ‘filtering’ out unwarranted prosecutions and ensuring that there is a good reason for proceeding in the case. A committal proceeding also provides an early opportunity to discharge a person where the prosecution case is inadequate.148 Another purpose is to encourage the early entry of a guilty plea.149A question of an accused’s unfitness to stand trial or a question as to whether an accused can establish
    the defence of mental impairment may be relevant to the conduct of committals in different ways.
  2. 5.161 Under current law in Victoria, the possibility of a mental impairment defence may be relevant to the decision to commit. A magistrate is permitted to make a preliminary assessment of whether the accused is not guilty because of mental impairment.
    Evidence of mental impairment may be relevant to the magistrate’s assessment of whether the prosecution has provided sufficient evidence of the mental element for
    the offence charged.150

 

  1. 5.162 In contrast, under the current law in Victoria, the possibility that the accused may be unfit to stand trial does not appear to be taken into account. This is despite the reality that an issue of unfitness to stand trial will have implications for an accused’s ability to participate in a committal proceeding. For example, they may not be capable of instructing their lawyer for the purpose of testing any evidence or to provide their version of the facts in defence of the charge. The Commission has formed the view that it is important to acknowledge the relevance of this issue to the conduct of the committal proceeding.
  2. 5.163 The Commission recommends that the current committal criteria be amended so that magistrates consider the statutory principles the Commission recommends for the CMIA. This is consistent with the Commission’s view that there should be a specialised approach to those who come under the CMIA and the need to promote therapeutic outcomes and avoid unreasonable delay for this group of people.

Recommendation

37 Section 141 of the Criminal Procedure Act 2009 (Vic) should be amended to require that if there is a real and substantial question of unfitness to stand trial, the court is to have regard to the statement of principles for decision makers in Recommendation 3 in conducting committal proceedings.

 

Requirement to plead

  1. 5.164 If the question of unfitness to stand trial arises in a committal proceeding, the CMIA provides that the committal proceeding must be completed in accordance with the Criminal Procedure Act.151 This in turn means that the magistrate must ask the accused whether they plead guilty or not guilty.152
  2. 5.165 An accused who is unfit to stand trial could be, by definition, unable to enter a plea of guilty or not guilty. Despite this, the Criminal Procedure Act does not contain any guidance on how to modify committal proceedings where a question of unfitness has been raised.153
  3. 5.166 In its report on the justice system and people with an intellectual disability, the Victorian Parliament Law Reform Committee noted that the lack of a procedure specifically for accused who may be unfit to stand trial has resulted in magistrates adopting different procedures to commit an accused to trial where the question of unfitness may be in issue.154 The Victorian Parliament Law Reform Committee recommended the adoption of a uniform committal procedure when the Magistrates’ Court considers unfitness.155
  4. 5.167 There was support in submissions for introducing a uniform committal procedure in the Magistrates’ Court.156 Some submissions noted that the current process may be unfair and may require the accused to do something they may be incapable of doing.157
  5. 5.168 In the Commission’s view the Criminal Procedure Act should contain guidance on how to modify committal proceedings where a question of unfitness to stand trial has been raised to avoid unfairness and inconsistent approaches in committing an accused to a higher court.
  6. 5.169 It was also argued in one submission that a failure to enter a guilty plea at the committal stage in such cases is not to be taken into account in sentencing. It is only once an accused has recovered their fitness to stand trial that the ‘earliest opportunity’ to plead guilty should be seen to arise.158 The Commission supports this view.

Recommendation

38 If there is a real and substantial question as to the accused’s unfitness to stand trial in a committal proceeding, the committal proceeding must be completed without the accused entering a plea. The committal proceeding must otherwise be completed in accordance with Chapter 4 of the Criminal Procedure Act 2009 (Vic).

 

Implementing a workable model—cost implications

  1. 5.170 The Magistrates’ Court provides a forum to determine CMIA matters in a way that is more flexible, expeditious and less intimidating than having the matter determined in a higher court. The Magistrates’ Court is also able to take a more flexible approach to accused who come under the CMIA because of its less formal processes and approach to dealing with a large caseload involving matters of lower level offending in its jurisdiction. Introducing flexibility into the CMIA regime, by extending its application to the Magistrates’ Court, will enable a more appropriate balancing of the principles underlying the CMIA, in particular community protection, treatment and recovery. There are many good reasons from a policy and practice perspective for the CMIA to apply to a greater extent in the Magistrates’ Court—documented in detail in this chapter—that have been influential in the Commission’s recommendations.
  2. 5.171 As required in the terms of reference, the Commission has also had regard to the cost implications of its recommendations to extend the application of the CMIA in the Magistrates’ Court.
  3. 5.172 Extending the application of the CMIA in the Magistrates’ Court will require appropriate and sufficient resources. Resources will be required for the set up and ongoing support of the processes and procedures in the Magistrates’ Court. Resource needs could encompass more personnel, court listing time and an expansion of the services available to support aspects of the process, such as expert reports and treatment and supervision services and facilities.
  4. 5.173 However, the extension of the CMIA in the Magistrates’ Court could result in significant cost savings in two key areas:
  • Costs associated with court hearings to determine criminal matters in the Magistrates’ Court could be lower than in the County Court, in particular the costs associated with the involvement of a jury in the higher courts.159
  • Costs associated with the outcomes proposed to be available in the Magistrates’ Court could be lower. This would apply in particular to the power to discharge at
    any stage prior to a determination of criminal responsibility (Recommendation 28(m)) and the introduction of fixed-term supervision orders in the Magistrates’ Court (Recommendation 32), compared to costs under the regime in the County Court which requires a choice between unconditional release or the imposition of
    an indefinite supervision order.160

Cost implication modelling work by the University of Melbourne

  1. 5.174 To enable an accurate estimate of the cost implications in these two areas, the Commission engaged the services of consultants at the Melbourne School of Population and Global Health, University of Melbourne161 to model and analyse the possible costs of its recommendations concerning the application of the CMIA to the Magistrates’ Court and Children’s Court. The work was conducted in two stages:
  • First, a scoping and feasibility study to see whether the recommended changes and their cost impact could be modelled162 given the available data.163
  • Second, analysis to estimate the cost implications of the recommendations extending the application of the CMIA in the Magistrates’ Court and Children’s Court.
  1. 5.175 The University of Melbourne provided the Commission with a report164 that documented the methodology and results of the modelling exercise. The Commission has drawn from the report in considering the cost implications in this area of proposed reform.

Cost of hearing CMIA matters in the Magistrates’ Court instead of the County Court

  1. 5.176 The Commission recommends that new processes and procedures be created in the Magistrates’ Court to:
  • determine unfitness to stand trial and criminal responsibility in a special hearing following a finding of unfitness
  • make orders following findings of not criminally responsible because of mental impairment and that conduct has been proved on the evidence available (but the accused is unfit to stand trial).
  1. 5.177 Under the recommended process and procedures, it will be possible for matters that come within the Magistrates’ Court jurisdiction—those involving summary offences
    and/or indictable offences triable summarily—where issues of unfitness and the defence of mental impairment are raised to remain in the summary jurisdiction for determination. Therefore, the Commission’s recommendations provide an alternative to the requirement that matters go through committal and transfer to the County Court due to a lack of power to determine unfitness and the lack of power to make orders.
Methodology
  1. 5.178 In order to compare the costs of hearing CMIA matters in the County Court and hearing CMIA matters in the Magistrates’ Court, models of the relevant processes were developed using ‘decision trees’ to map the key stages under the current law and under the changes to the law recommended by the Commission. The key cost drivers under each model were identified and available information on costs and distribution of cases were put into the model. The modelling used a technique known as ‘Markov modelling’, which enables the time taken at each stage in the decision tree to be assessed. A technique called ‘first order Monte Carlo simulation’165 was used to estimate and run the distribution of cases through each model, with an assessment of the variability of outcomes within the dataset.166
  2. 5.179 For some parts of the decision trees, the Commission was not able to obtain quantitative cost data and information required to estimate distribution, which increased the variance of the outcomes. This was factored into the modelling exercise. In Chapter 2, the Commission has recommended that there be improvements to data collection in matters involving issues of unfitness or the defence of mental impairment (see Recommendations 1 and 2). The absence of routine data collection was noted by the University of Melbourne in its report to the Commission.167
Results
  1. 5.180 Overall, the results indicate that extending the application of the CMIA in the Magistrates’ Court will reduce the cost to the justice system through a reduction in procedural costs for court hearings.
  2. 5.181 The analysis of the distribution of cost outcomes in the current model for adults charged with an indictable offence triable summarily in the Magistrates’ Court and County Court indicated that there were two cost outcomes that were more likely than others:
  • $69,572, occurring in 31.4 per cent of cases
  • $25,238, occurring in 28.0 per cent of cases.168
  1. 5.182 The analysis of the distribution of costs under the proposed model for adults charged with an indictable offence triable summarily in the Magistrates’ Court and County Court produced two cost outcomes that were more likely than others:
  • $27,613, occurring in 33.2 per cent of cases
  • $15,286, occurring in 29.8 per cent of cases.
  1. 5.183 In a comparison of the two models, the most likely path in the current adult model would cost an estimated $69,572, compared with the most likely path in the proposed adult model, at a cost of $27,613—representing a cost saving of $41,959 per case.
  2. 5.184 A comparison of the overall mean costs of the current and proposed models for adults charged with an indictable offence triable summarily in the Magistrates’ Court and County Court showed that there is an average cost saving of $26,037 for each matter that can be heard in the Magistrates’ Court instead of the County Court. The minimum cost saving is $637 and the maximum cost saving is $80,274. Table 2 shows the cost comparisons of current and proposed models.

 

Table 2: Cost comparison between current and proposed models for adults charged with indictable offences triable summarily under the CMIA

Table 2 Cost comparison between current and proposed models for adults charged with indictable offences triable summarily under the CMIA 

 

  1. 5.185 The large decrease in the mean cost associated with the proposed model can be attributed to the following:
  • lower personnel costs in the Magistrates’ Court compared with the County Court
  • lower costs for prosecution services (Victoria Police instead of Office of Public Prosecutions)
  • removal of costs associated with a jury in the County Court169
  • removal of fees payable to Victoria Legal Aid and prosecutions for committal hearings
  • removal of rental costs incurred by the County Court.170
  1. 5.186 Analysis of the cases heard under the CMIA over a 12-year period from 2000–01 to 2011–12171 indicated that there were 59 matters dealt with in the County Court that involved indictable offences triable summarily, and therefore came within the jurisdiction of the Magistrates’ Court.172 If summary jurisdiction had been granted in these cases and the proposed model had been available for them to be heard and determined in the Magistrates’ Court, the 59 cases represent an estimated collective cost saving to the justice system of over $1.5 million from court proceedings alone.

Cost of supervision and treatment on custodial supervision orders

  1. 5.187 Using data provided by Forensicare on the cost to provide custodial supervision and treatment to a forensic patient in Thomas Embling Hospital,173 the modelling exercise also provided an estimation of the cost differences for supervision under the proposed two-year supervision orders in the Magistrates’ Court. Data published in a study174 on detention lengths under the CMIA was used to identify the mean length of detention on a custodial supervision order until varied to a non-custodial supervision order.175 This was used as an indication of how long people spend on average on an indefinite order imposed in the higher courts. The cost of providing supervision and treatment to people detained for that period was compared with the cost of providing the same supervision and treatment when detained for two years. It was estimated that a reduction to a maximum of a two-year custodial supervision order in the proposed model would result in mean cost savings per person of approximately $1,900,000.
  2. 5.188 This estimate is only applicable to people supervised by Forensicare under the CMIA and does not apply to the cost for supervision and treatment of people supervised by the Department of Human Services, for which there is no information available on costs for supervision.

The potential to widen the net

  1. 5.189 The Commission’s recommendations may provide an incentive for accused to go down the CMIA pathway, where there was a previous disincentive. The availability of a process to determine unfitness to stand trial and a limited term supervision order in the Magistrates’ Court could result in more lawyers advising their clients to rely on the CMIA.176 Prosecutors may pursue charges more often if discharges or discontinuances (following a finding of not guilty because of mental impairment, or where a question of unfitness is raised in relation to a summary offence) are no longer the only option, particularly in relation to summary offences.177
  2. 5.190 There is a lack of data available on how many people could be drawn into the CMIA cohort if the CMIA were extended to the Magistrates’ Court. It is unclear how many times a question of unfitness is raised in the Magistrates’ Court in relation to a matter that can be heard there. There is also a lack of data on how often matters are discontinued because the question of unfitness is raised. There is a lack of data on the frequency of discharges following a finding of not guilty because of mental impairment.
  3. 5.191 The Commission was informed in consultations that, currently, unfitness matters arise infrequently before magistrates in relation to summary matters.178 While the defence of mental impairment arises more frequently, this is also relatively infrequent.179 It is clear, however, that Mental Health Court Liaison Service (MHCLS) officers, prosecutors and lawyers encounter potential unfitness or mental impairment cases more frequently than these cases reach court.180

 

  1. 5.192 While not the focus of the modelling exercise, the University of Melbourne report also included calculations of the predicted cost implications of varying degrees of ‘net widening’. It was concluded that as the proposed model provides substantive cost savings per case, any increase in overall operating costs for the justice system would primarily result from the effect of widening the net. It is not expected that the cost of cases in the proposed model would exceed the maximum costs in the current model.
  2. 5.193 Furthermore, reducing the length of detention in custodial facilities under custodial supervision orders to a fixed maximum of two years would enable a substantial cost saving, even if a ‘net widening’ effect were to occur.
  3. 5.194 It was estimated that, given the cost savings for mean court hearing costs in the adult model ($18,302 for the proposed model compared to $44,332 for the current model), any ‘net widening’ effect would need to exceed 240 per cent (assuming no difference to distribution) before additional costs to the court system would be incurred.
  4. 5.195 The Commission also notes the point advanced in Victoria Police’s submission that if recidivist offending is reduced by the ability of the Magistrates’ Court to provide a more appropriate and expedient response in cases involving unfitness to stand trial and the defence of mental impairment, this may ultimately reduce the number of CMIA matters.

Other resource requirements to support the model in the Magistrates’ Court

  1. 5.196 In submissions and consultations, it was suggested that a workable model in the Magistrates’ Court could also affect resourcing in a number of other areas.

Education and training needs

  1. 5.197 This was identified as a need for prosecutors, lawyers and magistrates to develop an expertise in CMIA matters, particularly in investigations of unfitness to stand trial, which will be a new area of practice in the summary jurisdiction. The Commission was informed that staff who work in the Magistrates’ Court already informally assess whether an accused has the mental capacity to participate in a criminal proceeding.181 However, it will be necessary to develop specific expertise on CMIA matters. The Commission has made a number of recommendations to address this (see Recommendations 10–13).

Increasing demands on court personnel and services

  1. 5.198 It was identified that an extension of the Magistrates’ Court’s jurisdiction will result in more cases being heard in the court. The sources of this were identified as either:
  • matters involving indictable offences triable summarily that are no longer required to be transferred to the County Court, or
  • summary offences involving issues of unfitness to stand trial or mental impairment being raised under the CMIA where ordinarily the charges may be withdrawn or a guilty plea entered.
  1. 5.199 It was noted thatmagistrates would need more time to determine a CMIA matter compared to a routine matter. Therefore, it would be important to ensure that additional funding is available to enable the Magistrates’ Court to implement the change.182
  2. 5.200 Prosecutors may need more time to prepare for these matters and would need to attend court for longer periods of time.183 There are also cost implications for frontline police if there is a need to call witnesses more often.184

 

  1. 5.201 It was also identified that there could be increasing demands on the Mental Health Court Liaison Service (MHCLS), provided by Forensicare. Currently this operates out of the Melbourne Magistrates’ Court and a number of regional and rural courts.185 The Commission has recommended that this service be expanded and the expansion adequately resourced, along with the introduction of disability liaison services in courts.186
  2. 5.202 This recommendation to expand and extend the Mental Health Court Liaison Service (MHCLS) will have cost implications. Forensicare informed the Commission that the 2013–14 budget for the 4.5 FTE (full time equivalent) MHCLS staff in metropolitan courts is $533,672. This includes employment costs, training, and infrastructure/equipment such as printers, phone, internet, stationery and costs related to staff being remotely located (that is, in a court). All MHCLS officer positions are classified and staff members are all employed at RPN4 or Allied Health 3 levels.187 The Commission does not have any information on the cost of the regional MHCLS positions; but it is noted that the positions in regional courts are half-time.

Expert reports and the capacity of experts to conduct assessments

  1. 5.203 It was noted that the expansion of the CMIA may require additional funding for expert assessments, including dedicated funding for out-of-custody reports188 as well as resources to build the capacity of experts to assess unfitness to stand trial, particularly in regional areas.189
  2. 5.204 There are different arrangements for court reports depending on whether the person is in custody or on bail and whether the report is ordered by the court or requested by the Office of Public Prosecutions (OPP).
  3. 5.205 Justice Health funds court-ordered reports when a person is in custody and the Department of Health funds court-ordered reports when a person is on bail.190 Court-ordered reports are infrequent.191 Reports requested by the OPP are funded separately under an agreement between Forensicare and the Department of Justice which commenced at the beginning of 2012.192
  4. 5.206 In consultations, Victoria Police prosecutors informed the Commission that Victoria Police currently does not have the funding to obtain expert reports under CMIA matters, but in some cases it may seek an assessment of a defence report (not an assessment of the person) by a forensic medical officer at the Victorian Institute of Forensic Medicine (VIFM).193 If the CMIA is expanded, there is a clear need for additional resources for the funding of such reports, in the absence of a court-ordered report, to ensure police prosecutors have adequate information where issues of unfitness to stand trial or the defence of mental impairment are raised. This is so they have a proper basis for decision making in the exercise of their prosecutorial functions.

 

  1. 5.207 Information publicly available on the fees payable by Victoria Legal Aid for expert reports and court attendance by psychologists and psychiatrists provides an indication of the costs of expert reports and attendance in court by experts to give evidence on unfitness to stand trial or on whether there is a basis for the defence of mental impairment. These costs are set out in Table 3.194

Table 3: Fees payable for expert reports and court attendances by psychologists and psychiatrists for CMIA issues in criminal matters

Serviceprovided

Psychologist

Psychiatrist

Report for mental impairment defence or unfitness to stand trial

$885

$885

Attendance at metropolitan court

$414

$504

Attendance at regional court

$587

$669

 

Note: attendance at court fee is for a half-day and includes travel.

Availability and access to treatment and services

  1. 5.208 If there is no overall increase in the number of matters heard under the CMIA, but merely a shift of some of the matters from the County Court to the Magistrates’ Court, there may not be a need for additional resources for the treatment and services that support the supervision of people on CMIA orders. There may, in fact, be a reduction in demand on such resources under the regime proposed for the length of supervision orders in the Magistrates’ Court. For example, a person placed on an indefinite order (with five-year progress reviews as recommended in Chapter 10 in Recommendation 84) in the County Court for an offence of theft, would, if dealt with in the Magistrates’ Court, be placed on a two-year supervision order. Under the Magistrates’ Court regime, resources for supervision and treatment would be required for two years, whereas under the current County Court regime such resources would be required for a longer period—possibly indefinitely, if the person did not progress through the stages of release under the supervision system and have their order revoked. The estimated cost implications of this are discussed above at [5.187]–[5.188].
  2. 5.209 Recommendations made by the Commission, such as those made in Chapter 3 to optimise an accused’s fitness to stand trial, may affect treatment and supervision resources. Accordingly, more resources may be needed to provide intervention geared towards restoring fitness to stand trial, such as the use of inpatient beds. There would also be a need to increase acute inpatient services or community-based care.
  3. 5.210 Another issue relevant to the availability of resources is the feedback the Commission received in relation to orders that existed under Part 5 of the Sentencing Act for convicted offenders whom the court considers to be mentally ill.195 In a number of consultations, the Commission was informed that these orders were ineffective because there are insufficient services for the people who could be on those orders.196 The reported underuse of Sentencing Act orders is due in part to reluctance of area mental health services to accept forensic clients and to a lack of forensic expertise.197

 

  1. 5.211 It is important to address this reluctance by building the forensic capacity of area mental health services and by improving links to these services. The Commission notes that this is the aim of the Forensic Clinical Specialist Program run by Forensicare and supports the continuation and expansion of such initiatives; however, there is no such equivalent initiative for Disability Services. In Chapter 11, the Commission recommends the Department of Health and Department of Human Services develop workforce strategies to increase the capacity of the general mental health and disability sector to undertake forensic mental health and disability work (see Recommendation 101).

Cost implication of appeals

  1. 5.212 If there is an increase in the number of matters heard and determined under the CMIA in the Magistrates’ Court, there could be more appeals from the Magistrates’ Court to the County Court. In Chapter 9, the Commission recommends that appeal rights be introduced so that a person can appeal a finding and a supervision order made in the Magistrates’ Court to the County Court.
  2. 5.213 As discussed in Chapter 9 at [9.199]–[9.203], such appeals are heard de novo, meaning they are conducted as a rehearing of the matter, rather than a review of the initial decision. Any increase in such appeals will have a cost implication for the County Court
    and parties involved in appeal proceedings. The Commission does not have any information on the costs associated with de novo appeals.

The Commission’s conclusion

  1. 5.214 The Commission’s recommendation to extend the application of the CMIA in the Magistrates’ Court will require an injection of resources into the Magistrates’ Court and surrounding supporting services, such as prosecution services and expert reports. However, there will be significant cost savings produced by the availability of a cheaper and expedient process in the Magistrates’ Court to determine matters where unfitness
    to stand trial or the defence of mental impairment is raised.
  2. 5.215 Therefore, the cost implication can be properly characterised as one of ‘resource shifting’—whereby the demand for resources is shifted from one court to another, producing cost savings in the conduct of court proceedings and length of supervision—rather than increasing the overall demand and requiring additional resources. The cost savings of the Commission’s proposed process for dealing with matters under the CMIA in the Magistrates’ Court demonstrate that there would need to be a significant increase in the number of people who make use of these new processes before the cost savings were diminished.
  3. 5.216 Extending the application of the CMIA in the Magistrates’ Court supports the principles underpinning the CMIA. By intervening early and providing a therapeutic and least restrictive approach, it is more likely that the system can address the conditions underlying unfitness to stand trial and offending and prevent further harm to the community. There is increasing recognition of the benefits that can be gained by early intervention, not only from the perspective of costs saved to government, but from the perspective of a person’s well-being and diversion from criminogenic pathways in the criminal justice system.198 The Commission’s support for this approach is underpinned by the recommendations made in this chapter.

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