6. Application of the CMIA in theMagistrates’ Court

Introduction

  1. 6.1 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, for example:
  • 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 accused person if they are found not guilty because of a mental impairment, and
  • 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. 6.2 In this chapter, the Commission asks a number of questions about whether the CMIA should be extended to apply in the Magistrates’ Court and the appropriate extent of any expansion. In doing so, the Commission considers the current jurisdiction of the Magistrates’ Court under the CMIA, including relevant processes and orders already available in the Magistrates’ Court in relation to people with a mental illness, intellectual disability or cognitive impairment and the extent to which these could be utilised. The Commission also considers the equivalent approach taken in other summary jurisdictions.

The Magistrates’ Court of Victoria

  1. 6.3 The Magistrates’ Court Act 1989 (Vic) establishes the Magistrates’ Court of Victoria.1 The Magistrates’ Court sits in 54 different locations around Victoria and is comprised of 114 magistrates, 14 acting magistrates and seven judicial registrars.2 It is Victoria’s principal court of summary jurisdiction3 with the jurisdiction to hear a broad range of matters, including criminal matters, traffic offences, money claims and civil disputes, family law and family violence matters and infringements. It also has a number of specialist court jurisdictions including the Drug Court and Koori Court. Unlike the higher courts, proceedings are less formal in the Magistrates’ Court—for example, magistrates and lawyers do not wear wigs or robes.4 Juries do not form a part of Magistrates’ Court proceedings.
  2. 6.4 In its criminal jurisdiction, the Magistrates’ Court has the power to:
  • hear and determine all summary offences5
  • hear and determine all indictable offences triable summarily6
  • conduct committal proceedings into indictable offences.7
  1. 6.5 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. 6.6 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 causing serious injury recklessly to assault with intent to rape and aggravated burglary.8
  3. 6.7 Committal proceedings are a preliminary examination to determine whether the case against the accused person is sufficient to warrant the person being directed to stand trial before the Supreme Court or County Court.9 After a committal proceeding, a magistrate may either direct that the accused person stand trial and order that they be remanded in custody until trial or granted bail, or the magistrate may discharge the accused person.10
  4. 6.8 The maximum term of imprisonment that the Magistrates’ Court may impose for a single summary offence or indictable offence triable summarily is two years.11 Unless expressly provided, the maximum cumulative period of imprisonment that may be imposed by the Magistrates’ Court (in respect of several offences committed at the same time) is five years.12
  5. 6.9 The majority of criminal cases in Victoria come before the Magistrates’ Court. In 2011–12, the Magistrates’ Court finalised 180,731 criminal matters, 24,394 more matters than in 2007–08.13 The approximately 15.6 per cent increase over a four-year period reflects the expanding jurisdiction of the Magistrates’ Court to hear and determine criminal matters.14
  6. 6.10 This contrasts with the 2,350 criminal cases finalised in the County Court and the 102 criminal cases finalised in the Supreme Court in the same year.15
  7. 6.11 These statistics reflect the seriousness and complexity of the criminal matters heard in the higher courts, the longer time it takes to finalise a criminal matter (for example, jury trials) in those jurisdictions and fewer judicial officers.

The law prior to the CMIA

  1. 6.12 Under the Governor’s pleasure regime, magistrates did not have the authority to deal with issues of unfitness to stand trial and the defence of mental impairment. In Pioch v Lauder, Justice Forster observed:

In the case of [a] simple offence [in the Magistrates’ Court] … there appears to be neither authority nor statutory provision to deal with the matter of a defendant who is insane, whether properly so called as being a person suffering from a sufficient defect of reason, or disease of the mind, or a person like the defendant here [who is found to be unfit to plead].16

  1. 6.13 The CMIA granted magistrates limited powers, enabling them to find a person not guilty because of mental impairment. However, the legislation stopped short of giving magistrates the power to make orders following such findings.

Current law under the CMIA in the Magistrates’ Court

  1. 6.14 The CMIA does not give the Magistrates’ Court the power to determine unfitness to stand trial. When the issue of unfitness to stand trial is raised, all matters involving indictable offences (including indictable offences triable summarily) must be committed to a higher court for an investigation of unfitness to stand trial by a jury. If the issue of unfitness to stand trial is raised in relation to a summary offence, the matter must be discontinued.17CL (a minor) v Lee & Ors (CL)18 (discussed below at [6.23]) confirms that the Magistrates’ Court lacks jurisdiction to determine unfitness to stand trial.
  2. 6.15 Section 528 of the Children, Youth and Families Act 2005 (Vic) gives the Children’s Court all the ‘powers and authorities’ that the Magistrates’ Court has in relation to all matters over which it has jurisdiction. This means that the CMIA applies to the Children’s Court in the same way that it does in the Magistrates’ Court. In CL, Justice Lasry found that the Children’s Court did not have the jurisdiction to determine whether a child is unfit to stand trial partly because the Magistrates’ Court had no such jurisdiction. Where a question of a child’s unfitness to stand trial is raised, the matter must be referred to the County Court for an investigation into the child’s unfitness. Following the investigation, a special hearing or trial must be held.19
  3. 6.16 In relation to the defence of mental impairment, section 5(1) of the CMIA provides that the defence of mental impairment applies to summary offences and to indictable offences heard and determined summarily, which allows the defence to be relied on in the Magistrates’ Court. 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.20 The Magistrates’ Court therefore has no power to make orders in relation to people found not guilty because of mental impairment. Due to section 528 of the Children, Youth and Families Act, the mental impairment defence also applies in the Children’s Court. The Commission is not considering whether the CMIA should be extended to the Children’s Court as part of this review. The Department of Justice is examining this issue separately.

Extending the application of the CMIA in the Magistrates’ Court: systemic issues

  1. 6.17 The question of whether the CMIA should be further extended to the Magistrates’ Court raises a number of systemic issues that apply broadly to the matters that the Commission will consider in this section and in other sections in this paper.
  2. 6.18 Extending the application of the CMIA to the Magistrates’ Court to enable it to determine unfitness to stand trial and make orders in relation to people found not guilty because of mental impairment could have potential advantages. The Magistrates’ Court could provide a forum to determine these issues in a way that is less costly, more efficient and perhaps less intimidating than having the issue determined in a higher court. A process in the Magistrates’ Court could better address the level of offending involved in summary offences and indictable offences triable summarily than a higher court. The Magistrates’ Court may also be able to take a more flexible approach to accused people who come under the CMIA because of its less formal processes, the availability of options such as diversion programs and the lower level of offending in its jurisdiction. More flexibility in the regime in the Magistrates’ Court could enable a focus on treatment and recovery, balanced with the need to protect the community as encapsulated in the underlying principles of the CMIA.
  3. 6.19 There could be, however, potential disadvantages and setbacks as well. Investigations into unfitness to stand trial may warrant jury involvement to provide an extra level of scrutiny. The heavy caseload and high throughput in the Magistrates’ Court may be inappropriate for the articulated procedures and evidence under the CMIA. It may also be important not to create an overly elaborate process for people who have not committed a serious offence or a rigorous supervision regime for these people, contrary to the principle of least restriction underpinning the CMIA.
  4. 6.20 In the Commission’s 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. 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. The Commission was concerned that this could result in the human services system having to manage people simply because they had committed such offences, rather than to people who had a higher level of needs.21 Since then, the Magistrates’ Court has started to deal with progressively more serious offences that may warrant a reconsideration of this recommendation.
  5. 6.21 It is also important to consider the cost implications of any expansion of the CMIA to the Magistrates’ Court. There is a lack of data available on how many people could potentially be drawn into the CMIA cohort if unfitness to stand trial was extended to the Magistrates’ Court or if there was an expansion of the orders available. Such changes could have significant resource implications for the Magistrates’ Court. The Commission is interested in receiving data that can inform consideration of the possible effects and implications of expanding the jurisdiction of the CMIA to the Magistrates’ Court.
  6. 6.22 An increase in the Magistrates’ Court’s jurisdiction would involve a higher caseload in the court and demand for services, including for the provision of expert reports and the supervision of orders. Therefore, it would be important to ensure that additional funding is available to enable the court and support services to implement the change. On the other hand, there could be significant resources saved by removing unfitness to stand trial and mental impairment matters that are currently required to be determined in the higher courts due to the restrictions on the application of the CMIA.

Unfitness to stand trial in the Magistrates’ Court

The lack of jurisdiction

  1. 6.23 The Victorian Court of Appeal affirmed the decision made by Justice Lasry in CL, that the Magistrates’ Court (and the Children’s Court) did not have jurisdiction to determine unfitness to stand trial.22 Justice Lasry stated a number of reasons why the CMIA did not give the Magistrates’ Court the power to determine unfitness to plead. These included:
  • The CMIA defines ‘court’ to mean the Supreme Court and County Court and restricts the definition to the Magistrates’ Court in relation to requesting certificates of available services for certain orders.23
  • The CMIA provides, with no relevant exceptions, that the CMIA applies only in relation to trials of indictable offences in the Supreme Court or County Court.24
  • The CMIA does not expressly provide for the Magistrates’ Court to determine unfitness to plead.25
  • The CMIA requires a jury to determine the issue of unfitness to stand trial, making it clear that it could not possibly apply in the Magistrates’ Court.26
  • The availability of the defence of mental impairment in the Magistrates’ Court does not imply a power to determine the issue of unfitness to plead.27
  • The second reading speech indicates that the CMIA is not intended to apply to the Magistrates’ Court.28
  1. 6.24 Justice Lasry recommended that the CMIA and the Children, Youth and Families Act be amended to provide the Children’s Court with the specific jurisdiction to deal with issues of unfitness to plead.29 His Honour recommended that parliament consider provisions in other jurisdictions that give magistrates the authority to determine unfitness to stand trial.30
  2. 6.25 The Victorian Parliament Law Reform Committee has made similar recommendations in its Inquiry into Access to and Interaction with the Justice System by People with an Intellectual Disability and their Families and Carers. The 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 person’s unfitness to stand trial in the Magistrates’ Court and Children’s Court.31

Issues with the lack of jurisdiction

  1. 6.26 Through its preliminary research, the Commission is aware that the Magistrates’ Court’s lack of jurisdiction to determine unfitness to stand trial may give rise to a number of potential problems. Thus far, the following potential issues have been identified:
  • Inefficiency of the process—the Law Reform Committee was of the view 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 caused considerable inefficiencies and lengthened the process. As discussed in Chapter 4, the current process in relation to unfitness to stand trial requires the empanelling of two juries: one to determine whether the accused person is unfit to stand trial, and a second to determine whether the accused person committed the offence if they are found unfit to stand trial. The length of the process could be difficult for both victims and accused people, an issue that is also discussed in Chapter 4. The current process also utilises resources in the higher courts even though the offence is one that comes within the jurisdiction of the Magistrates’ Court.
  • Encourages ‘artificial decision making’—the current system may place pressure on magistrates, prosecutors, defence lawyers and the police to make decisions that they may not otherwise make. For example, in a number of cases, the only reason a magistrate would commit an accused person to trial is because the County Court has the power to empanel a jury to determine the issue of unfitness to stand trial, even though the type of offence would allow it to be heard and determined in the Magistrates’ Court.
  • Risk to community safety—if a person is unfit to stand trial, proceedings involving that person charged with a summary offence (as opposed to an indictable offence triable summarily) must be discontinued in the Magistrates’ Court. This is the case even when the accused person is charged with a large number of summary offences and may pose a risk of re-offending, and could raise issues of community safety.32 The Magistrates’ Court lacks the power to make an order to address the offending or protect the community.33
  1. 6.27 The terms of reference ask the Commission to consider whether changes are needed to ensure that the CMIA operates justly, effectively and consistently with the principles that underlie it. There is a potential inconsistency between the principles that underlie the CMIA and the Magistrates’ Court’s lack of jurisdiction to determine unfitness to stand trial.
  2. 6.28 First, the current system could be characterised as not operating ‘justly’, and may even be discriminatory, towards accused people with a mental illness, intellectual disability or cognitive impairment who may be unfit to stand trial. These accused people, by virtue of their mental illness, intellectual disability or cognitive impairment, do not have the same right as other accused people to have their matter heard in a lower jurisdiction.
  3. 6.29 Second, the unfitness to stand trial doctrine is important for a number of reasons outlined in Chapter 4. These include the importance of avoiding inaccurate verdicts and ensuring the fairness of the criminal trial process. Based on these principles, a trial cannot continue if an accused person is unfit to stand trial.34 There is, however, a danger that an accused person could be encouraged to plead guilty even when they cannot legitimately plead to avoid having the matter uplifted to a higher court and possibly dealt with by a more onerous supervision regime. Accused people in general may plead guilty for a number of reasons including a ‘preference for an informal, speedy resolution over a formal, intimidating, complex and lengthy proceeding …’, to ‘reduce costs’, ‘to get the matter over with, especially if in custody’, and ‘to get a lesser sentence’.35 The factors affecting the decision to plead guilty are more pronounced in the situation of vulnerable offenders.36
  4. 6.30 The tendency for accused people to plead guilty even when they are unfit to stand trial existed under the Governor’s pleasure regime37 and exists in other jurisdictions.38 It is unclear whether this practice occurs and is prevalent under the CMIA in Victoria. In any case, having inappropriate incentives to plead guilty may compromise the fairness of the process and the accuracy of the pleas entered in the Magistrates’ Court.
  5. 6.31 Further, an accused person who pleads guilty even when they are unfit to stand trial could receive a recorded criminal conviction and an unsuitable punishment.39 If an accused person’s unfitness to stand trial continues to go undetected in the system, and the person continues to have multiple encounters with the criminal justice system, their criminal history is more likely to result in a prison sentence.40 This could also be inconsistent with the principles that underlie the CMIA, particularly the principle that people who have not been tried for their actions because of a mental condition should not be punished.

Question

  1. 47What issues arise in relation to the Magistrates’ Court’s lack of jurisdiction to determine unfitness to stand trial?

 

The power to determine unfitness to stand trial

Express power to determine unfitness to stand trial in summary courts

  1. 6.32 Like Victoria, the Northern Territory and Queensland do not have provisions allowing courts of summary jurisdiction to determine the issue of unfitness to stand trial.41
  2. 6.33 The Australian Capital Territory, South Australia, Tasmania and Western Australia allow magistrates to determine the issue of unfitness to stand trial.42 In the Australian Capital Territory, the Magistrates’ Court has limited jurisdiction to determine unfitness to plead.43 If the question is raised in the Magistrates’ Court (other than at a committal hearing) and the court is satisfied that there is a ‘real and substantial question’ about the accused person’s unfitness to plead, the court must reserve the question for investigation.44 However, if the issue of unfitness to plead arises during a committal hearing, the committal hearing must be completed. If the accused person is committed, then the question of unfitness to plead is reserved for the Supreme Court.45 There is a discretionary power not to proceed with the investigation into unfitness and dismiss the charge.46 The test for determining unfitness to stand trial is not adapted for the Magistrates’ Court and is largely based on the Presser criteria.
  3. 6.34 In South Australia, if there are ‘reasonable grounds’ to suppose that a person is mentally unfit to stand trial, the magistrate may order an investigation into the unfitness to stand trial.47 There is no unfitness to stand trial test specifically adapted for the Magistrates’ Court. The test appears to be flexible enough to apply to both higher and lower courts. If the question of unfitness arises at a preliminary examination for an indictable offence, the question of whether there should be an investigation must be reserved for the court of trial.48
  4. 6.35 Like the Australian Capital Territory, magistrates in Tasmania have limited jurisdiction to determine unfitness to stand trial.49 If a ‘real and substantial question’ is raised relating to the accused person’s unfitness to stand trial (other than at a preliminary proceeding for an indictable offence), the court has the power to reserve the question of the accused person’s unfitness to stand trial for investigation.50 However, if the issue of unfitness to stand trial is raised at a preliminary proceeding for an indictable offence, the question is reserved for determination by the Supreme Court.51 There is no test for determining unfitness to stand trial adapted for the Magistrates’ Court.
  5. 6.36 Finally, in Western Australia, the question of unfitness to stand trial may be raised at any time before or during the hearing of the accused person in the Magistrates’ Court.52 The magistrate then decides the question of the accused person’s unfitness to stand trial on the balance of probabilities.53 The test to determine unfitness to plead is not adapted for the Magistrates’ Court and is largely based on the Presser criteria.
  6. 6.37 The jurisdictional comparison shows that if the Magistrates’ Court is given the power to conduct investigations into unfitness to stand trial, there are a number of other variables that will need to be determined. These include:
  • which offences the procedure would apply to (for example, all offences that can be heard and determined in the Magistrates’ Court or only indictable offences triable summarily)
  • when the question of unfitness to stand trial must be raised to bring it within the Magistrates’ Court’s jurisdiction (for example, whether the question can be raised at any time during Magistrates’ Court proceedings or alternatively, at any time other than at a committal proceeding)
  • the trigger for an investigation into unfitness to stand trial in the Magistrates’ Court (for example, the investigation could be conducted when there is ‘a real and substantial question’ as to unfitness or when there are ‘reasonable grounds’ for the investigation)
  • whether the Magistrates’ Court should retain a discretion not to proceed with an investigation into unfitness to stand trial (for example, the discretion to adjourn the matter to enable the accused person to become fit or the discretion to refer the investigation into unfitness to stand trial to a higher court)
  • whether a special test to determine unfitness to stand trial should apply in the Magistrates’ Court (the requirement that the accused person be able to challenge a juror, for example, would be irrelevant in this jurisdiction).

Questions

  1. 48Should the Magistrates’ Court have the power to determine unfitness to stand trial? If yes, consider:

    1. (a) Should the power to determine unfitness to stand trial be limited to indictable offences triable summarily or include certain summary offences?
    2. (b) When can the question of unfitness to stand trial be raised to bring it within the Magistrates’ Court’s jurisdiction?
    3. (c) What should trigger the Magistrates’ Court’s investigation into unfitness?
    4. (d) Should the Magistrates’ Court retain a discretion not to proceed with the investigation into unfitness to stand trial?
    5. (e) What test for determining unfitness to stand trial should apply in the Magistrates’ Court?
  2. 49What are the cost implications of giving the Magistrates’ Court the power to determine unfitness to stand trial?

 

Discretionary power to make orders

  1. 6.38 Rather than the Magistrates’ Court gaining the power to determine unfitness to stand trial, it could instead have a broad discretionary power to make orders in relation to people with a mental illness, intellectual disability or cognitive impairment.
  2. 6.39 While New South Wales and the Commonwealth do not have express provisions enabling summary courts to determine unfitness to stand trial,54 both jurisdictions give magistrates limited discretionary powers to make orders in relation to people with a mental illness or an intellectual or developmental disability.55 Both jurisdictions permit summary courts to adjourn proceedings, grant bail, dismiss proceedings or make any other appropriate order in relation to accused people who have a mental illness or intellectual or developmental disability.56 The court may dismiss the charge and discharge the accused person into the care of a responsible person, on the condition that the accused person be assessed or receive treatment, or without conditions.57
  3. 6.40 The New South Wales and Commonwealth approach removes the need for a decision on whether an accused person is unfit to stand trial and a process to determine whether the accused person committed the offence charged. By being less procedure driven, it is potentially more efficient and less resource intensive. However, this approach has raised some concerns. For example, a person could potentially be made subject to an order without being found unfit to stand trial or to have committed the offence. O’Carroll argues:

One concern with s 20BQ of the [Crimes Act 1914 (Cth)] and s 32 of the [Mental Health (Forensic Provisions) Act 1990 (NSW)] is that they do not give defendants a chance to defend the charge. This could result in unfair outcomes where a person with an intellectual disability has a valid defence but the magistrate dismisses the charge under one of these sections and orders that the person be placed in somebody’s care or attend for treatment or assessment.58

  1. 6.41 Further, the power is discretionary and magistrates are not required to apply it. Finally, leaving the terms ‘mental illness’ and ‘intellectual disability’ or ‘developmentally disabled’ undefined may lead to confusion and result in the inconsistent application of the provision.59 An accused person may be unfit but not clearly fall into those categories.60

Questions

  1. 50Is a broad, discretionary power to make orders in relation to people with a mental illness, intellectual disability or cognitive impairment a better alternative to giving the Magistrates’ Court an express power to determine unfitness?

  2. 51If considered, should such a power be framed or limited in any way (for example, limited to indictable offences triable summarily)?

  3. 52What are the cost implications of introducing a broad, discretionary power to make orders in relation to people with a mental illness, intellectual disability or cognitive impairment?

 

Determining whether the accused person committed the offence

  1. 6.42 If the Magistrates’ Court is given the power to determine unfitness to stand trial, it will be necessary to decide what process should be followed following a finding of unfitness to stand trial in the Magistrates’ Court to determine whether the accused person committed the offence.
  2. 6.43 Some jurisdictions have approached this issue by providing for a ‘special hearing’ procedure in the Magistrates’ Court. The Australian Capital Territory, for example, requires the court to conduct a hearing in which the magistrate decides whether the accused person engaged in the conduct required for the offence charged.61 The conduct of the hearing is similar to a usual criminal proceeding.62
  3. 6.44 In Tasmania, if the accused person has been found unfit to stand trial (and is unlikely to become fit after 12 months or does not become fit within a 12-month adjournment), the court must hold a special hearing to determine, on the limited evidence available, whether the accused person is not guilty of the offence.63 The court must conduct the hearing as close as possible to a usual criminal proceeding.
  4. 6.45 In Western Australia, where there is a finding that an accused person is unfit to stand trial for a summary offence or indictable offence triable summarily, the court must make an order dismissing the charge without deciding the guilt of the accused person and either release that person or make a custody order.64 The court has power to adjourn the proceedings for up to six months to see whether the accused person will become mentally fit to stand trial.65 Where the offence is an indictable offence, the matter proceeds to committal and the accused person is presumed to plead not guilty.66

Questions

  1. 53If the Magistrates’ Court is given the power to determine whether the accused person committed the offence charged, what process should apply to determine whether the accused person committed the offence charged?

  2. 54 If the Magistrates’ Court is given the power to determine whether the accused person committed the offence charged, should the process be limited to indictable offences triable summarily or include certain summary offences?

 

Defence of mental impairment in the Magistrates’ Court

The requirement to discharge

  1. 6.46 Section 5 of the CMIA, while providing that the defence of mental impairment applies to summary offences and indictable offences heard and determined summarily, also provides 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.

  1. 6.47 The Community Development Committee, which developed most of the policy underlying the CMIA, decided not to give magistrates the power to make orders in relation to people found not guilty because of mental impairment. This decision was based on the reasoning that offences heard in the Magistrates’ Court were less serious and 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 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.67
  2. 6.48 These reasons, while justified at the time the CMIA came into effect, may no longer be pertinent.
  3. 6.49 First, the ‘safety net’ that the 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) did not eventuate. While such options are available in the Magistrates’ Court, these options are not available as a means of dealing with people who are found not guilty because of mental impairment.
  4. 6.50 Second, the summary offences the Committee referred to have since increased in number and seriousness. This expansion of the Magistrates’ Court’s criminal jurisdiction began as early as the 19th and 20th century,68 but has continued in recent years, motivated by the costs involved in jury trials in the higher courts.69 This was achieved primarily by increasing the number of indictable offences that can be heard summarily.70 While the number of summary offences was lower at the time of the Community Development Committee’s report, the jurisdiction of the Magistrates’ Court now includes a number of serious offences previously heard in the higher courts.71 Making a threat to kill, stalking, assault with intent to rape and aggravated burglary are some examples of relatively serious indictable offences triable summarily.

Issues with the requirement to discharge

  1. 6.51 Through its preliminary research, the Commission is aware that the lack of orders available to magistrates in relation to people found not guilty because of mental impairment raises a number of potential problems. Thus far, the following potential issues have been identified in preliminary research:
  • Lack of ‘outcome’ encourages artificial decision making and fails to address the offending behaviour or mental illness, intellectual disability or cognitive impairment—as with the Magistrates’ Court’s lack of jurisdiction to determine unfitness to stand trial, the current system may put pressure on magistrates, prosecutors, defence lawyers and the police to make decisions that they may not otherwise make. For example, a magistrate may consider committing a person for trial in the County Court, even though the type of offence would allow it to be heard and determined summarily, to avoid a discharge in the Magistrates’ Court. Lawyers may decide not to rely on the defence of mental impairment in the Magistrates’ Court, in the hope of having the mental impairment considered in sentencing. In the absence of any measures in place to provide these accused people with services or options for diversion, a discharge usually follows a verdict of not guilty because of mental impairment in the Magistrates’ Court. The Magistrates’ Court has no power to make an order to address the offending behaviour or mental illness, intellectual disability or cognitive impairment.
  • Risk to community safety—the discharge of a person found not guilty because of mental impairment may also compromise community safety. As the Commission observed in its Review of People with Intellectual Disabilities at Risk: A Legal Framework for Compulsory Care, it may be inappropriate for a Magistrates’ Court to discharge an accused ‘… if the person is in need of care and is acting violently or dangerously, and may do so again in the future if he or she does not receive appropriate care …’.72 Without treatment or supervision, the offending behaviour of some accused people may escalate and ultimately lead to more serious consequences for the accused person and the community.73

Question

  1. 55What issues arise because of the Magistrates’ Court’s lack of power to make orders in relation to people found not guilty because of mental impairment?

 

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

  1. 6.52 The Australian Capital Territory, South Australia, Tasmania and Western Australia provide magistrates with the power to make orders in relation to people found not guilty because of mental impairment. In New South Wales, the Magistrates’ Court deals with accused people with a mental impairment using its diversionary powers under sections 32 and 33 of the Mental Health (Forensic Provisions) Act 1990 (NSW). Courts of summary jurisdiction in the Northern Territory, Queensland and the Commonwealth do not have jurisdiction to decide whether the defence of mental impairment is established.74
  2. 6.53 In the Australian Capital Territory, the Magistrates’ Court can:
  • order that the person is detained in custody until the Civil and Administrative Tribunal otherwise orders
  • direct that the person submit to the jurisdiction of the Civil and Administrative Tribunal which will make a mental health order or recommendations on the orders the magistrate should make, or
  • make any other order.75
  1. 6.54 The options available to the magistrate depend on whether the offence is a ‘serious offence’ or not.76
  2. 6.55 In South Australia, the Magistrates’ Court may make orders in relation to people who are found mentally incompetent to commit the offence.77 The Magistrates’ Court may order the release of the person unconditionally, make a supervision order involving detention or make a supervision order releasing the person on licence.78 Supervision orders are subject to ‘limiting terms’ equivalent to the period of imprisonment or supervision that would have been appropriate if the person had been convicted of the offence.79 The order lapses at the end of the limiting term.80
  3. 6.56 In Tasmania, the Magistrates’ Court may make a range of orders in relation to these people including:
  • making a continuing care order
  • releasing the person and making a community treatment order
  • releasing the person on such conditions as the court considers appropriate
  • releasing the person unconditionally.81
  1. 6.57 In Western Australia, if the Magistrates’ Court finds an accused person not guilty of an offence because of unsoundness of mind the court may make an order in respect of that person.82 The orders available depend on whether the offence is serious or not, but generally the court can release the person unconditionally, make a conditional release order, a community-based order or an intensive supervision order under the Sentencing Act 1995 (WA), or make a custody order.83
  2. 6.58 In New South Wales, the defence of mental illness does not apply to proceedings for summary offences in the Local Court.84 Whether the defence applies in indictable offences triable summarily is less clear.85 The Local Court generally deals with accused people with a mental impairment using its diversionary powers under the Mental Health (Forensic Provisions) Act.86
  3. 6.59 If magistrates have the power to make orders in relation to people found not guilty because of mental impairment it will be necessary to decide which offences this power should apply to. It may not make sense, for example, to find a person not guilty because of mental impairment in relation to a summary offence that lacks a mental element (such as the offence of ‘disorderly conduct’ in a public place) and subject that person to an order.
  4. 6.60 Further, different considerations apply to the question of whether orders should be available following a finding of not guilty because of mental impairment according to the seriousness of the offence. The current discharge requirement under the CMIA following a finding of not guilty because of mental impairment may be appropriate if an accused person has been found not guilty of a summary offence as the offence is less serious. Therefore, the need to consider other orders may be more pertinent in cases where an accused person is charged with an indictable offence triable summarily.

Questions

  1. 56Should the Magistrates’ Court have the power to make orders in relation to people found not guilty because of mental impairment?

  2. 57If yes, should the power to make orders be limited to indictable offences triable summarily or include certain summary offences?

 

Options for expanding the orders available in the Magistrates’ Court

  1. 6.61 If the CMIA is expanded to the Magistrates’ Court to enable it to determine unfitness to stand trial and the criminal responsibility of the accused person following a finding of unfitness, it will be necessary to decide whether and what orders should be made available to magistrates following that process. A similar assessment would need to be made if the CMIA was expanded to enable magistrates to make orders in relation to people found not guilty because of mental impairment.
  2. 6.62 The following section outlines a number of options that could be introduced in the Magistrates’ Court if the court’s jurisdiction is so extended. The options outlined could also be relevant if the Magistrates’ Court is given a broad discretionary power to make orders in relation to accused people with a mental illness, intellectual disability or cognitive impairment.

Orders under the CMIA supervision regime

  1. 6.63 When a person is declared liable to supervision under the CMIA, they may be placed under an indefinite custodial or non-custodial supervision order. Given the seriousness of offences under the jurisdiction of the Magistrates’ Court, it would be important to avoid drawing a rigorous supervision regime for minor offences. A supervision regime such as the one that currently exists under the CMIA, which is indefinite for example, may be inappropriate for offences in the Magistrates’ Court.
  2. 6.64 To avoid drawing an overly rigorous supervision regime, the orders available under the CMIA could be subject to a time limit. Alternatively, only non-custodial supervision orders and unconditional discharges could be made available to the Magistrates’ Court. With indictable offences triable summarily, the Magistrates’ Court could retain a discretion to commit the accused person to trial, which could act as a safety net for matters that might warrant a more restrictive order.

Orders under the Sentencing Act 1991 (Vic) in the Magistrates’ Court

  1. 6.65 There are currently a number of orders available under the Sentencing Act 1991 (Vic) in the criminal justice system, other than under the CMIA, for people with a mental illness, intellectual disability or cognitive impairment. If suitable, these orders could be utilised or adapted if the Magistrates’ Court’s jurisdiction is extended. The Commission’s preliminary research indicates that these orders are infrequently imposed.
  2. 6.66 Part 5 of the Sentencing Act provides the following orders for a person with a mental illness, instead of imposing a criminal sentence:
  • Assessment order—This is an order detaining the person as an involuntary patient at a mental health service for up to 72 hours for an assessment to be made of their suitability for a restricted involuntary treatment order or a hospital security order.87
  • Diagnosis, assessment and treatment order—This is an order detaining the person as an involuntary patient in an approved mental health service for diagnosis, assessment and treatment for up to three months.88
  • Restricted involuntary treatment order—This is an order for people found guilty of an offence other than a serious offence detaining the person in an approved mental health service as an involuntary patient for up to two years.89 This order applies to people who meet the criteria for transfer from the criminal justice system to the mental health system.90 The person is then dealt with as a patient under the Mental Health Act 1986 (Vic) instead of as a prisoner.91
  • Hospital security order—This is an order detaining the person at an approved mental health service for a period not exceeding the period of imprisonment to which the person would have been sentenced.92
  1. 6.67 Generally, to qualify for these orders:
  • The person must be found guilty at a criminal trial.93
  • The person must appear to have a mental illness that may require treatment that is obtainable in detention in an approved mental health service.94
  • Involuntary treatment must be necessary for their safety or the protection of the public.95
  • The authorised psychiatrist of the approved mental health service must certify that there are facilities and services available for the assessment or treatment of that person.96
  1. 6.68 For people with a intellectual disability or cognitive impairment, the following orders are available:
  • Justice plan condition—This is a special condition that attaches to a community correction order or an order for release. The special condition requires the person to participate in certain services in the ‘justice plan’ that are designed to reduce the likelihood of the person committing further offences. The person must have an intellectual disability within the meaning of the Disability Act 2006 (Vic) to qualify for a justice plan condition.
  • Residential treatment order—This is an order detaining the person for up to five years in a residential treatment facility. This order can only be made in relation to people who have been found guilty of a serious offence or indecent assault under section 39 of the Crimes Act 1958 (Vic),97 the person must be suitable for admission to a residential treatment facility and there must be services available at the residential treatment facility.98
  1. 6.69 There are also community correction orders made under the Sentencing Act that can be adapted to the needs of people with a mental illness, intellectual disability or cognitive impairment. These orders have been described as a ‘non-custodial sanction with multiple elements capable of being tailored to the needs of different types of offender …’.99 The order must not operate for more than two years and the offender must consent to the order.100 The court must attach one or more conditions to the order that could include a treatment and rehabilitation condition.101

Orders potentially available under the civil mental health and disability system

  1. 6.70 Instead of making an order under the criminal justice system, the Magistrates’ Court could refer the person to the Office of Senior Practitioner (Department of Human Services) or the Office of the Chief Psychiatrist (Department of Health). Those bodies can then decide whether the person is eligible for services under their respective Acts (the Mental Health Act and the Disability Act) and if appropriate, recommend that the person receive such services.
  2. 6.71 This option is similar to recommendation 93 made by the Commission in its report on People with Intellectual Disabilities at Risk: A Legal Framework for Compulsory Care. The Commission recommended that ‘where a magistrate finds a person with an intellectual disability or mental impairment is not guilty because of a mental impairment …, the magistrate may refer the person to the Office of Senior Clinician’.102
  3. 6.72 There are a number of orders under the Mental Health Act and the Disability Act that could be used to address the needs of accused people with a mental illness, intellectual disability or cognitive impairment in the Magistrates’ Court. The Mental Health Act contains the following orders for people with a mental illness:
  • Involuntary treatment order—This is an order that allows for the involuntary detention of a person for treatment at an approved mental health service.103
  • Community treatment order—This is an order for people subject to an involuntary treatment order for treatment in an approved mental health service without detention.104
  1. 6.73 Under the Mental Health Act, a person must satisfy the following criteria for involuntary treatment:
  • the person appears to be mentally ill
  • the person’s mental illness requires immediate treatment and that treatment can be obtained by the person being subject to an involuntary treatment order
  • because of the person’s mental illness, involuntary treatment of the person is necessary for their health or safety (whether to prevent a deterioration in the person’s physical or mental condition or otherwise) or for the protection of members of the public
  • the person has refused or is unable to consent to the necessary treatment for the mental illness
  • the person cannot receive adequate treatment for the mental illness in a manner less restrictive of their freedom of decision and action.105
  1. 6.74 The Disability Act contains provisions for a supervised treatment order, that is an order to detain people with an intellectual disability who pose ‘a significant risk of serious harm to others’.106

Processes potentially available in the Magistrates’ Court

  1. 6.75 In recent years, the Magistrates’ Court has developed a number of support and diversion initiatives to address the issues underlying offending behaviour. These include the Court Integrated Services Program (CISP) and the Assessment and Referral Court (ARC) List. CISP provides short-term services and support before sentencing to accused people with health and social needs. The ARC List is a specialist court list to meet the needs of accused people who have a mental illness and/or a cognitive impairment. A Mental Health Court Liaison Service (MHCLS), provided by Forensicare, also operates out of the Melbourne Magistrates’ Court and a number of regional and rural courts.
Assessment and Referral Court (ARC) List
  1. 6.76 The ARC List, established in 2010, is a ‘specialist problem-solving court’ piloted by the Magistrates’ Court in collaboration with the Department of Justice. The list, that operates in Melbourne, was established to assist people who have a mental illness and/or a cognitive impairment by addressing the issues that underlie their offending behaviour. It aims to reduce the likelihood of re-offending. Like other specialist courts in the Magistrates’ Court, the ARC List is generally less formal than a traditional court. It is an interactive process designed to make participants more comfortable, which encourages greater compliance and responsiveness to any orders imposed, and provides a more individualised and practical approach to address the needs of this group of accused people.107
  2. 6.77 Participants in the ARC List are required to attend regular hearings during the course of their participation (that may be up to 12 months) where their issues and progress in addressing them are discussed. The list relies on ‘therapeutic jurisprudence principles’ that take into account the participant’s mental illness or cognitive impairment.108 A magistrate supervises the list, supported by a program manager and clinical or case advisors who provide support to the participants throughout their involvement with the list. An evaluation of the ARC List has been conducted by KPMG but is not publicly available. The ARC List is widely regarded as a valuable initiative.
Courts Integrated Services Program (CISP)
  1. 6.78 CISP commenced operation in early 2007. It is a multi-disciplinary rehabilitation program established by the Magistrates’ Court in collaboration with the Department of Justice to ensure that accused people receive appropriate treatment and support services with the aim of promoting safer communities by reducing re-offending. It provides referrals or links for the participant to drug and alcohol treatment, crisis accommodation, disability services and mental health services. The program currently operates in Melbourne, Sunshine and Latrobe Valley Magistrates’ Courts.
  2. 6.79 CISP provides case management by:
  • providing participants with short-term assistance to address their health and social needs
  • working on the causes of their offending through individualised case management support
  • helping them gain access to treatment and community support services.
  1. 6.80 CISP participants can be involved in the program for up to four months. A recent evaluation of CISP found that ‘compared with offenders at other court venues, offenders who completed CISP showed a significantly lower rate of re-offending in the months after they exited the program’.109
Mental Health Court Liaison Service (MHCLS)
  1. 6.81 The Mental Health Court Liaison Service (MHCLS), provided by Forensicare, is a court-based assessment and advice service. The main role of the MHCLS is to provide mental state assessments and advice regarding the management and needs of accused people, 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 person is unfit to stand trial. Forensicare provides the assessment service to seven metropolitan Magistrates’ Courts and there are four regional roles that are provided by local area mental health services.
Diversion if the CMIA is further extended to the Magistrates’ Court
  1. 6.82 At present, the ARC List and CISP are not designed to include accused people who are unfit to stand trial (or people who are found criminally responsible following a finding of unfitness) or those who would qualify for a defence of mental impairment. This can be contrasted with the South Australian diversion program that aims to provide a diversion option in the Magistrates’ Court for people who may otherwise put forward a defence of mental impairment. Any expansion of the ARC List or CISP to people found unfit to stand trial or not guilty because of mental impairment would require a change in the respective criteria for eligibility.
  2. 6.83 It would also be important to consider whether the initiatives, as they currently stand, are appropriate for people who come under the CMIA. The four-month CISP case management, for example, may be too brief for people with an intellectual disability or cognitive impairment. Any diversion program would need to be appropriate for both accused people with a mental illness and an intellectual disability or cognitive impairment.
  3. 6.84 Another factor to consider is the time and costs involved in diversion: diversion requires more time to move accused people through the system, additional services and intensive judicial monitoring that could lead to higher costs.110 However, it may be that these costs are still less than the alternative, where a person ends up having repeated encounters with the criminal justice system and ultimately requires a much stricter level of supervision or detention.

New orders and processes that could be developed in the Magistrates’ Court

  1. 6.85 In Tasmania, as discussed earlier, the Magistrates’ Court can make a flexible range of orders including:
  • a continuing care order (detention in a mental health facility for up to six months on a renewable basis)
  • a community treatment order (a conditional release with the requirement that the person accept treatment or attend a mental health facility or fulfil some other condition, for up to one year on a renewable basis)
  • a conditional or unconditional release.111
  1. 6.86 In some jurisdictions, the decision to make an order is deferred to another body. In the Australian Capital Territory, for example, courts can refer the making of an order to the Civil and Administrative Tribunal. The Civil and Administrative Tribunal can then make a mental health order.112

Questions

  1. 58If the application of the CMIA is expanded in the Magistrates’ Court, what orders should be available:

    1. (a) if the Magistrates’ Court is given the power to determine unfitness to stand trial and the criminal responsibility of an accused person found unfit to stand trial?
    2. (b) in relation to people found not guilty because of mental impairment?
    3. (c) if the Magistrates’ Court is given a broad discretionary power to make orders in relation to people with a mental illness, intellectual disability or cognitive impairment?
  2. 59 What are the cost implications of the options for expanding orders available in the Magistrates’ Court?

 

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