8. Rights and interests under the CMIA

Introduction

  1. 8.1 The terms of reference ask the Commission to have regard to the representation of various interests involved in the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) (‘CMIA’). In particular, the Commission has been asked to look at whether changes should be made to the provisions governing supervision and review, including the frequency, form and conduct of reviews and the arrangements for consideration and representation of the various interests involved, including the interests of the community.
  2. 8.2 The Commission has taken the following approach in considering the issues raised during consultations:
  • Representation of victims’ and family members’ interests—These issues relate to the support available to victims and family members of people subject to supervision orders throughout the court process, the notification and court report processes and the need for acknowledgment that the conduct has occurred. The Commission makes recommendations to enhance victim support, improve victim notification processes and promote meaningful sharing of information with victims.
  • Advocacy for people subject to supervision orders—These issues relate to the need for legal representation1 and independent advocacy to safeguard the rights of people on custodial and non-custodial supervision orders. The Commission makes a recommendation to undertake a gap analysis of advocacy services for people who
    are subject to the CMIA to improve accessibility of these services.
  • Representation of community interests—These issues relate to which party best
    represents the interests of the community in hearings to vary or revoke supervision orders and to grant or revoke extended leave. The Commission makes a recommendation to re-frame the roles of various parties in CMIA proceedings so that the interests of the community are represented by the Director of Public Prosecutions.
  • Suppression orders—These issues relate to the balance between the principles of open justice and the successful reintegration of people subject to the CMIA back into the community. The Commission makes recommendations to introduce a statutory principle recognising the importance of suppression orders in the long-term recovery of people subject to supervision orders under the CMIA, and to create a presumption in favour of making a suppression order where it is in the public interest to do so.

Victims and family members

  1. 8.3 The Commission, in its Review of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997: consultation paper (‘the consultation paper’),outlined the current provisions under the CMIA for victims and family members in the context of the particular difficulties that can arise in cases under the CMIA.
  2. 8.4 The Commission sought views on whether the provisions in the CMIA allow for effective participation by victims and family members. The victims and family members consulted by the Commission ranged in experience and included victims who were family members of the accused, victims who were not family members of the accused, and family members
    who were providing ongoing support to people through CMIA proceedings and on supervision orders.
    2
  3. 8.5 The Victims’ Charter Act 2006 (Vic)acknowledges the importance of victims in the criminal justice system and requires investigating, prosecuting and victim service agencies to treat victims with ‘courtesy, respect and dignity’,provide victims with information,notify victims of certain events or hearings and provide assistance to victims who wish
    to prepare a victim impact statement.3 The Commission affirms those principles.

The complexity of CMIA matters for victims and family members

  1. 8.6 Criminal proceedings can be traumatic for the victim of any offence. Family members of an accused may also be affected, for example while providing emotional or financial support to the person through the criminal process.
  2. 8.7 For victims and family members involved in criminal proceedings under the CMIA, however, the experience can be especially traumatic. CMIA matters can be procedurally complex, subject to significant delays, involve complex relationships between victims
    and the accused and result in outcomes that may be difficult for a victim to understand and accept.
  3. 8.8 It is very common in CMIA cases for an accused to be charged with offences against family members. In such cases, the direct victim of an offence may be a parent, spouse, child or sibling of the accused. Therefore, other family members will also be a victim of the offence. In such cases, family members will be dealing with and coming to terms with what has happened and its long-term effects, the trauma of criminal proceedings, as well as possibly providing support to the accused. The difficulties can be particularly heightened when the person who has been charged with an offence has a mental condition, such as a mental illness or intellectual disability, which has or will require ongoing care and support from family members. In some, but not all of these cases, family members may have a very good understanding of the history and complexities of the person’s condition and its relationship to the alleged offending. This may not be the case where the victim and their family members do not know the accused.
  4. 8.9 One study examining the management of forensic patients in Victoria found that 42.5 per cent of offences were committed against a family member of the person.4

 

  1. 8.10 The difficulties encountered by victims in CMIA proceedings have been explained by the Director of Public Prosecutions in Victoria, John Champion SC, as follows:

Complications in understanding [in CMIA matters] arise due to the fact that a large number of these matters involve homicides within families—so there are family members grieving for a loved one, while on the other hand dealing with the trauma of another loved one being prosecuted for the death.

On top of that, due to a series of different hearings and processes involved, matters involving mental impairment can seem to take longer to finalise than if the offence was being dealt with under the normal court process. The different processes can seem even more mysterious, and can lead to confusion for those involved as lay participants.5

  1. 8.11 The outcome in a CMIA matter may be that the accused is found not guilty because of mental impairment6 and this can be confusing and difficult for a victim to accept. In the words of one member of a Homicide Victim Support Group in New South Wales:

Words are very powerful. It is devastating for a family to hear in court that, despite everyone’s acknowledgement that this offender murdered this victim, nobody is found guilty of a crime. The verdict of ‘not guilty on the grounds of mental illness’ often means to the victim’s family that the offender is ‘getting away with it’. The most important implication of this verdict is that the offender has no conviction against their name.
For families, this means that no one is responsible for the death of their loved one.7

Participation of victims and family members in the criminal justice process

  1. 8.12 There are many reasons why it is important to provide victims with the opportunity to participate in criminal proceedings. This may be even more so for victims in CMIA matters, given the complexity of issues and the relationships between people who have been charged with offences and the victims of those offences. A study examining the importance of victim participation in forensic patient proceedings in New South Wales highlighted the complexity of CMIA-type matters:

Victims clearly may have genuine and legitimate concerns with the release of forensic patients about their own safety and security and that of others and therefore need to have the opportunity to contribute. In some cases their input may provide relevant and significant evidence or information for the decision makers. Even in cases where the input has no significant probative value, the participation may have significant therapeutic consequences in reassuring victims about their safety and security and confidence and respect for the legal process. … Moreover, victimization by a family member or acquaintance, which is a typical scenario in forensic cases, tends to be more personal and therefore more painful and generally is a continuing cause of stress and fear because such victims know that they may encounter the perpetrator in the future and moreover they may feel that they are a likely potential target [citations omitted].8

  1. 8.13 It is important for victims for the accused ‘regardless of responsibility, to be held to account’.9 Informing victims about the different processes that apply where the defence of mental impairment or unfitness is raised can assist victims in understanding the consequences of findings under the CMIA and reassure victims that an accused is not ‘getting off’ and that the person will be provided with treatment or supervision
    if neccessary.
  2. 8.14 One way in which victims can engage with the criminal justice system in a meaningful way is through restorative justice techniques. Restorative justice processes are victim-focussed. Restorative justice models aim to ‘help heal and empower victims of serious crimes while providing the opportunity for offenders to take responsibility for their actions and assist in the recovery process’.10 Evidence suggests that restorative justice techniques may work most effectively where the offender and victim share a ‘common identity’.11
  3. 8.15 While studies have shown that restorative justice may contribute to the perception of fairness of the criminal justice system from the perspective of the victim, the evidence on the effectiveness of restorative justice mechanisms is mixed.12 Despite this, it has been argued that:

What is certain is that where restorative justice is done well, it goes beyond what traditional responses can achieve and as a result, the potential impact upon individuals, communities and society is substantial. Restorative justice is about more than traditional notions of justice—it is about repairing harm, restoring relationships and ultimately, it is about strengthening those social bonds that make a society strong.13

  1. 8.16 Acknowledgment of the offence may be addressed as part of the recovery process of a person on a supervision order, but whether the circumstances of the offence are addressed as part of a person’s therapy and treatment is a clinical decision and depends on the individual and the nature of their case.
  2. 8.17 A person who is on a supervision order under the CMIA because they have been found not guilty because of mental impairment is, under Victorian law, not criminally responsible for their actions. A person may also be on a supervision order because in a special hearing a jury found that they committed the offence.14 This is a qualified finding of guilt to recognise the fact that the person was not able to participate fully in the hearing where the assessment of criminal responsibility was made. Therefore this finding differs from a usual finding of guilt. In these situations under the CMIA, unlike a situation where a person has been found guilty of an offence, it may not be appropriate for a person on a supervision order to participate in restorative justice processes.
  3. 8.18 Restorative justice techniques may require ‘considerable adaptation’ to work with forensic offenders.15 Possible barriers may include the victim’s difficulty in coming to terms with the outcome of no criminal responsibility due to the finding of not guilty because of mental impairment or the accused’s mental condition, which may prevent effective and appropriate participation in the process. Despite these difficulties, it has been argued that exploring restorative justice alternatives is ‘perhaps most important’ in future research in this area.16
  4. 8.19 People who are subject to the CMIA will be supervised either by the Victorian Institute of Forensic Mental Health (Forensicare) or the Department of Human Services (DHS).
  5. 8.20 While Forensicare’s role is to support the needs of a person with a mental illness on a supervision order, given the complex relationships involved in CMIA matters, this role may sometimes extend to providing support to victims in situations where the victim is also a family member of the accused. For example, the Family and Friends Support Group is facilitated by the family and carer advocate at Forensicare and provides an opportunity for peer group support for family and friends of patients.

 

  1. 8.21 A family and carer advocate is also available at Forensicare to provide direct support to family and friends of patients, and training and advice to staff. The family and carer advocate has ‘current or previous direct experience of being a family/carer for a person with a serious mental health issue who has been treated within the public mental health system’ to give an ‘authenticity to the position’.17 The family and carer advocate is also the Chair of the Family Sensitive Practice Committee at Forensicare.18
  2. 8.22 The Commission is not aware of any equivalent groups for people with an intellectual disability or other cognitive impairment who are supervised under the CMIA by DHS.

Provision for victims and family members in the CMIA

  1. 8.23 The CMIA acknowledges the role of victims and family members through provisions requiring notification of hearings and outcomes of decisions and enabling victims and family members to make a court report. Amendments to the CMIA in 2001 enhanced these provisions to allow victims to include more information in victim reports on their views of the offending conduct, to allow for more information to be provided to victims about the level of supervision, and to allow victims to elect not to receive information through the victim notification scheme.19
  2. 8.24 A victim in relation to an offence is defined in the CMIA as ‘a person who suffered injury, loss or damage as a direct result of the offence’.20
  3. 8.25 The CMIA defines a family member of a person subject to a CMIA order as:
  • a spouse or domestic partner, parent or guardian or sibling of the person, or
  • a child of the person or of the person’s spouse or domestic partner.21
  1. 8.26 The CMIA requires each victim and each family member to be notified of hearings.22 The Director of Public Prosecutions is required to give 14 days notice, by registered post, of reviews (including major reviews), applications for the variation or revocation of a supervision order and applications for extended leave, if granting the application would significantly reduce the degree of the person’s supervision.23
  2. 8.27 Other jurisdictions have improved the administrative efficiency of the victim notification process through the use of a register.24 As one study examining the participation of victims in New South Wales forensic proceedings explained:

A register for victims is a vital aspect of any victim participation scheme because it helps to ensure that all victims who wish to participate can be advised in due time of their opportunities to participate.25

 

  1. 8.28 Victims and family members can make court reports at various stages of the CMIA process.26 Reports by victims and family members contain their views on the conduct of the person and the impact of that conduct on them.27 The CMIA provides that a victim or a family member can make a report to the court for the purpose of:

(a) assisting counselling and treatment processes for all people affected by an offence

(b) assisting the court in determining any conditions it may impose on an order made in respect of a person under [the CMIA] or in determining whether or not to grant a person extended leave.28

  1. 8.29 The guide ‘Prosecuting Mental Impairment Matters’29 was released by the Office of
    Public Prosecutions in November 2012. The guide was developed for victims involved in CMIA matters to facilitate greater participation by them in the prosecution process. It explains the court process where people with a mental condition are prosecuted for serious crimes and outlines the circumstances under which a victim or family member report can be made.
  2. 8.30 The guide aims to increase input from victims, both at the initial stages of prosecution, but also at the stages when supervision orders are made and reviewed by the court. This reflects the increasing recognition of the importance of victims’ rights and participation in CMIA processes.30 Information available to the Commission on the presence of court reports in CMIA cases confirms the need for measures such as the guide to provide more support to victims to participate in CMIA processes.
  3. 8.31 The Commission’s analysis of the 65 CMIA cases in the higher courts where there were judgments available from 2000–01 to 2011–12, indicated that a court report was made or referred to by the judge in 18.5 per cent of cases (12). In 81.5 per cent of cases, a court report was not mentioned by the judge.31

Views in submissions and consultations

  1. 8.32 A number of themes emerged from submissions and consultations with victims and family members. These include:
  • the need for support throughout the court process, in particular, that support be provided by a person with lived experience of the complexities of CMIA matters
  • a lack of information about CMIA court processes
  • the benefits of the notification and court report processes managed by the Office of Public Prosecutions
  • the need of victims for acknowledgment that the accused’s actions had a significant effect on their lives
  • whether restorative justice measures could be explored as part of providing acknowledgment to a victim and a means of taking responsibility for an accused (this was not raised by victims, but by a family member of a person on a non-custodial supervision order).

 

  1. 8.33 The Commission firstly discusses stakeholder views under these themes and then makes recommendations to address the areas where the Commission considers changes should be made.

Victim support in the court process

  1. 8.34 There was a strong view expressed in consultation meetings with victims and family members that it would have been beneficial to have received support during the court process from someone who had gone through a similar experience.32
  2. 8.35 One partner of a victim expressed the view that early support is crucial:

It’s important to identify people early on and give support early on through the police process and not just the immediate family of the victim. It’s about making sure you get information along the way about what is happening.33

  1. 8.36 The provision of support during the court process was highlighted as particularly important by one victim (who was also a family member of the accused) who expressed the view that they found attending court an intimidating experience:

it is intimidating for families at court. Court processes are intimidating. The court room was intimidating, particularly the Supreme Court. That’s how it is; when the judge is sitting ‘in the heavens’ it can be intimidating.34

  1. 8.37 Acknowledging the complexities involved in CMIA matters, the same victim (and family member of the accused) said that while court support was provided, it could have
    been more useful to have been supported by someone who had gone through the process themselves:

It would have been useful to have someone at the court assisting to explain the
process … A social worker provided support … however it would have been more useful to have someone there who understands the complexities of the issues, perhaps someone who had been through the court process themselves as a family member of a person on trial … [My] daughter found the process very traumatic.
35

  1. 8.38 Another partner of a victim supported this view, stating that it would have been useful to have a support person who had experienced something similar themselves:

I generally found that people who have not gone through such an experience do not have the necessary degree of empathy. I think that having experience could contribute to an understanding of what others are going through. It was very difficult to communicate the pain on an individual level.36

Provision of information during the court process

  1. 8.39 Two participants in consultation meetings, who were both partners of a victim, said that they were not provided with enough information about the court case.37 As one victim stated:

I am concerned that I will not be told about the outcome of the court case, or that I will only find out upon reading it in the paper. ... If I was angry it would only be because I haven’t gotten the information that I wanted. I understand that there are a lot of cases but it is still important to relations of victims that they receive adequate information.38

 

  1. 8.40 The partner of a victim also stated:

For example, I had to go on the internet to find out what a directions hearing was. I hadn’t realised I could do this. I was unclear on what a directions hearing is about and because I was not sure about whether the directions hearing would include details about the injuries to my partner’s body, I did not want to risk going. If I had known more about the hearing, I could have made an informed decision about whether to go or not. It was not about going to see the offender or to watch him be punished.39

  1. 8.41 One partner of a victim found the idea of going to court ‘stressful’ and felt that it was more important to them to be provided with information.40 This view was shared by another victim who explained that not being provided with information can affect their experience of the justice system as a whole:

I was informed by the police about a court liaison person but I have not had regular contact with them. I had a lot of questions that were not answered and this had left me wondering whether my questions are important, and whether the criminal justice system thinks that I am important.41

Court reports

  1. 8.42 All of the victims and family members involved in consultation meetings were of the
    view that the ability to provide a court report is important. The partner of a victim explained that:

Making a report to the court was important to me as once you put something in writing it goes out of my brain and then they know how I feel. You can’t keep it all in your brain. … It’s like a cleansing process and there was someone to give it to, which was good.42

  1. 8.43 They also praised the Office of Public Prosecutions (OPP) for the assistance provided in completing their report:

The lawyer who I had contact with at the Office of Public Prosecutions is fantastic—because she helped me with the court report. She advised me about getting a statutory declaration. She said if you are worried or frightened give me a call. When you have that, you don’t need to worry.43

Victim notifications

  1. 8.44 The OPP raised issues in relation to the victim notification system.
Changes suggested to notifications for extended leave
  1. 8.45 The CMIA requires the Director of Public Prosecutions (DPP) to give victims and family members of the supervised person 14 days notice of an application for extended leave if the granting of the application would significantly reduce the degree of supervision to which the person is subject.44
  2. 8.46 The OPP observed that because applications for extended leave must be made every 12 months until a custodial supervision order is varied to a non-custodial supervision order,
    it must write to victims and family members on behalf of the DPP every 12 months. This is because the OPP does not have information about whether a subsequent application for leave will result in a significantly reduced degree of supervision.

 

  1. 8.47 The OPP therefore submitted that the CMIA, in particular section 38C(2)(d), should be amended to provide that the DPP need only notify victims and family members of the granting of extended leave where the supervised person was not on extended leave at the time of the application.
Changes suggested to notification of review hearings
  1. 8.48 The DPP is required to give victims and family members of the accused 14 days of notice of reviews and other hearings.45 While there is no definition of what the Director must do to ‘give notice’ in the CMIA, section 74 requires that a notice must be sent by registered post. Under section 49 of the Interpretation of Legislation Act 1984 (Vic),
    giving notice is ‘deemed to be effected at the time at which the letter would be delivered in the ordinary course of post’.
  2. 8.49 In practice, the OPP advised that they send these letters by registered post at least 21 days before the hearing to comply with these requirements (ensuring that there is enough time for the letter to be sent, for Australia Post to deliver the letter and for the person to collect the letter from the post office).
  3. 8.50 The OPP noted the difficulties that arise when a person does not collect their letter via registered post from the post office and submitted that:
  • The CMIA should be amended to provide that the DPP is taken to have complied with the requirements of section 38C if registered post letters containing the information required in that section and section 38E are posted 21 days (for example) before the hearing date.
  • Where a hearing is adjourned for a period less than three months, an ordinary post letter advising an adjournment should be sufficient so that victims and family members need not attend the post office multiple times to collect letters.
  • Section 38C should include alternatives such as email or other postal systems where receipt of notification can be confirmed.
  • It should be sufficient for one or more family members to be notified rather than all of them.
  • Where the accused has no contact with their family members or does not want them notified, it should not be a requirement that they be notified.46
  1. 8.51 The OPP was of the view that ‘[r]eceiving constant reminders about the offences can be distressing for some victims’ and that it ‘can be onerous for victims and family members to continually attend the post office in business hours to collect letters’.47
  2. 8.52 The OPP also advised that while a small number of victims elect not to receive notification of hearings, many victims do not collect their registered post. The OPP suggested that the victims who do not collect their registered post may not want to receive the notification but have not ‘opted out’ of the system. Multiple letters may sometimes be generated where a hearing is adjourned, or frequent notifications where reviews are held on a regular basis.
  3. 8.53 The OPP also raised concerns about the difficulty in ‘tracking down’ victims in situations where the first notification they receive may be for a review hearing at the expiry of a 25-year nominal term. The OPP indicated that it can be difficult to locate victims after this period of time, as there may not have been any ongoing contact with the victim since the offence occurred.48
Support for the notification system
  1. 8.54 Despite the OPP’s concerns outlined above, a partner of a victim expressed strong support for the notification system:

Information provided by the Office of Public Prosecutions is good—they provide me with lots of information. I like being notified by mail not by computer and not phone
call because someone else can take the phone call. And you can take time to digest
the material if you have it in writing.49

The importance of acknowledgment

  1. 8.55 The finding of not guilty because of mental impairment reflects the fact that the conduct comprising the offence has been proven but because mental impairment affected the person’s capacity to such a degree that they did not realise what they were doing or realise that it was wrong, the person is not criminally responsible for what happened.
    The finding of committed the offence charged (after being found unfit to stand trial), reflects the fact that the conduct comprising the offence has been proven but the finding of guilt is qualified by the fact that the person was not capable of participating in the hearing of the evidence and exercising all of their legal rights to defend the charges.
  2. 8.56 Therefore, while these findings are treated differently under the law to findings of guilt
    in non-CMIA matters, they do recognise that the conduct has occurred.
  3. 8.57 A partner of a victim raised the importance of acknowledging what had occurred. This person stated that while they understand that the person did not know what they were doing, it was still important to them that there was some acknowledgment of the actions of the accused:

Acknowledgment is the only thing that matters. … It is important to me to obtain an acknowledgment that the accused had been at fault and caused my partner’s death.
I do not want the accused’s family to suffer. … If the accused had a mental impairment at the time of the accident, he may not understand that what he has done is wrong. I want the accused to be made to understand at some stage about how it has affected me and my family.50

  1. 8.58 The input from people subject to supervision orders indicated the potential for there to be some acknowledgment as part of the recovery process. As discussed above at [8.16], the extent to which a patient may be capable of acknowledging and accepting what has happened is a clinical judgment. Seeking to have them acknowledge what happened may or may not be appropriate, depending on the particular circumstances of the case and the effect it might have on the patient’s recovery.

 

  1. 8.59 The Patient Consulting Group51 provided information about the work that it had done to develop a ‘Recovery Pyramid’ to be adopted as part of Forensicare’s recovery approach. The Recovery Pyramid was developed to ‘help patients gain insight of their recovery and also identify their next step’ and is linked to the definition of patient recovery which is ‘acknowledging your offence and illness and working through your issues’.52 The pyramid identifies seven stages of recovery: denial, despair, birth of hope, acceptance, willingness, responsible action and meaningful life. For each stage, descriptions are provided to capture the sorts of feelings or experiences a patient might be having at that particular stage. Under ‘meaningful life’, some of the descriptors provided touched on this notion of acknowledging what had happened and the consequences of future behaviour. These were provided by patients who had experience of going through the recovery process and were living in the community. They included the following:

Being aware of consequences when you’re in the community and knowing your actions have consequences.

It is a healing time for some patients after committing their crime.53

  1. 8.60 The submission provided by the Patient Consulting Groupat Forensicare included a comment from a person on a supervision order that illustrates an acknowledgment of what had happened:

I ended a family’s son’s life. I can never give that back but what I can do is get well to make sure it never happens again.54

  1. 8.61 It is evident that acknowledgment of the conduct that has occurred in a CMIA matter can and does have a role in the recovery of people on supervision orders. However, the current emphasis of the acknowledgment is on what therapeutic impact this may have on the person subject to the order and their recovery from the condition that resulted in the mental impairment defence, rather than on the victim and on assisting them to also ‘recover’ from what has happened in a therapeutic way.

Restorative justice

  1. 8.62 While victims did not raise the concept of restorative justice in submissions and consultations, one family member of a person with an intellectual disability and a mental illness on a supervision order thought that a restorative process may have assisted her brother to understand the consequences of his actions:

No information was provided to me about what happened to the victim of the incident. I felt that reparation may have assisted my brother’s case to try and make him understand that he had hurt someone and that there were consequences because of the car accident.55

 

The Commission’s conclusion

  1. 8.63 The Commission recognises that improvements are required to the way in which victims and family members are involved in all criminal proceedings. This has been highlighted recently in a Department of Justice publication Information and support needs of victims and witnesses in the Magistrates’ Court, which sought to ‘fill a gap in the available data about the information and support needs of victims and witnesses in the Magistrates’ Court’.56 However, given the unique circumstances surrounding CMIA matters, victims and family members need additional specialised support throughout court processes.
  2. 8.64 The Commission supports a victim participation scheme that allows the victim to decide their level of participation. Victims may have varying levels at which they wish to engage with processes under the CMIA. A victim may wish to have no involvement with CMIA processes or may seek involvement at one or any combination of the following levels:
  • Information—being provided with information about court processes and outcomes under the CMIA and notified of hearings and reviews.
  • Engagement—attending court hearings and reviews where support may be required and being provided with court reports at reviews and hearings.
  • Outcomesbeing acknowledged through victim-focussed information sharing processes and/or seeking active engagement with the person on the supervision order through involvement in restorative justice measures.
  1. 8.65 These recommendations are supported by Recommendation 3 in Chapter 2 of this report, which proposes the introduction of a statutory principle in the CMIA that acknowledges the need for victims to be supported and involved in proceedings.

Information

  1. 8.66 There is a need to improve methods of providing information to victims and family members throughout the court process.
  2. 8.67 The Commission acknowledges the concerns raised by the Office of Public Prosecutions (OPP) in relation to the victim notification process, in particular the difficulties in locating victims, the requirement to send all notifications by registered mail, and problems of notifying about a potential decrease in the level of supervision with limited information
    on the person.
  3. 8.68 The Commission supports the continuation of the current victim notification process, but is of the view that there should be greater flexibility in that system. For example, under the CMIA, notice is not to be given to a victim or family member where they have given notice to the Director of Public Prosecutions that they do not wish to be notified of any hearing in relation to the person subject to the supervision order.57 However, there may be instances where a victim only wants to be notified if a person’s supervision order is varied from a custodial supervision order to a non-custodial supervision order and would prefer to be notified by email, rather than registered post as required in the CMIA.58
    The notification process should be flexible enough to allow this to occur.

 

  1. 8.69 The Commission’s view is that a register would assist in reducing the administrative burden of the victim and family member notification process for the OPP. An automated system that allowed victims to update their contact details, preferred mode of contact and the level of participation they are seeking would be beneficial in providing flexibility for victims and reducing the administrative burden for the OPP.59 All victims would initially be entered into the system to be notified of all hearings and reviews and could then elect to decrease their level of involvement in CMIA processes.
  2. 8.70 The issue raised by the OPP about having to routinely notify victims of extended leave applications when they have insufficient information to know that, if an application
    for extended leave is granted, the level of supervision to which the person is subject would be significantly reduced, is addressed by Recommendation 62 below. If the
    Director of Public Prosecutions represents the community at review hearings and applications for extended leave, they will have sufficient information to know whether
    a victim will need to be notified.

Engagement

  1. 8.71 The Commission has had regard to the principle underpinning section 42(1)(a) of the CMIA that provides for a victim or family member to provide a report to the court to assist in counselling and treatment processes for all people affected by the offence.60 This unequivocally frames the therapeutic context of victim involvement. The Commission’s view is that the approach by which victims are provided with information should sit within this therapeutic framework and should only occur with the consent of the victim and within the boundaries of appropriate information sharing for both the victim and person subject to the supervision order.
  2. 8.72 Research has shown that where victims are provided with information about the court process and the possible outcomes, they are more satisfied with the process even if the actual outcome of the case was not what the victim had sought. One study examining how the forensic system can improve justice for victims found that ‘some of the methods of restorative justice and victim inclusion may enhance procedural justice and therefore the overall satisfaction of victims’.61 This finding was supported by another study looking at procedural justice that found:

Justice appraisals by victims about how they are treated are often more meaningful than the outcome itself. …victim-centered focus and the emphasis on treating victims with dignity and giving them ample opportunities to participate and share their feelings reinforces victims’ feeling of justice and belief in the system [citation omitted].62

  1. 8.73 For example, where a victim consents to obtaining information, they could be advised about a range of details regarding the supervision order, including the conditions of the order, contact with the supervisory organisation and the treatment or services being provided. If the person on the supervision order does not consent to the victim being provided with information, the victim could be given general information about the nature of the supervision order and the types of conditions that may be imposed. Where the person on the supervision order consents to the victim being provided with additional information, the victim could be provided with information about the treatment and services that the person is receiving. This information may provide reassurance to the victim about the processes that a person on a supervision order is subject to under the CMIA and that something is being done to prevent further conduct from occurring. However, care should be taken in providing such information to ensure that the expectations of individuals involved are managed appropriately and to be clear that this would not extend to providing input on decisions regarding treatment or level of supervision.

Outcomes

  1. 8.74 The Commission acknowledges the difficulties that would be involved in developing a restorative justice process for victims in CMIA matters. However, while many victims understand that the accused in a CMIA matter is not criminally responsible for their actions, they still seek acknowledgment of the conduct that gave rise to CMIA proceedings and its effect on their lives, and reassurance that there are consequences by way of supervision or services for the person who is subject to the CMIA. One way this could be achieved is through greater information sharing between Forensicare, the Department of Human Services and the Office of Public Prosecutions.
  2. 8.75 Given the complexities of relationships involved in CMIA matters and the different outcomes and findings, many victims expressed the view that specialised knowledge was required by professionals who provide support to victims and family in CMIA matters that extends beyond the qualifications and experience of those who provide support to victims and family members in other criminal proceedings.
  3. 8.76 While most professionals in the mental health workforce have ‘learned experience’, that is, experience gained from study or work experience, the value of including people with ‘lived experience’ in the mental health workforce has been widely acknowledged.63 People with lived experience of mental illness may not have experienced a mental illness themselves, but may have supported or cared for a person with a mental illness.

Recommendations

  1. 8.77 The Commission makes four recommendations that seek to provide more support to victims to facilitate their involvement in CMIA proceedings.

Recommendations

57 The Victims Support Agency in the Department of Justice should conduct work to develop a victim support scheme to provide court support, information on processes and outcomes and to assist victims to make court reports under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic).

58 Section 74 of the Crimes (Mental Impairment and Unfitness to be Tried)
Act 1997
(Vic) should be amended to provide that notice of a hearing required to be given to a family member or victim under the Act must be sent by a
form of communication that allows the sender to determine if the notice has been received. Such means include, but are not limited to, registered post
and other correspondence that involves notification of receipt, including electronic communication.

 

Recommendations cont’d

59 The Office of Public Prosecutions should investigate options for the development of a register specifically for victims and family members under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic).
The register should include contact details of people on the register, indicate
a person’s nominated level of participation in processes under the Act and their preferred form of communication. The register should be automated
and capable of being updated by the people on the register.

60 The Victorian Institute of Forensic Mental Health (Forensicare), the Department of Human Services and the Office of Public Prosecutions should investigate options that promote more meaningful information sharing with victims about the processes governing people subject to supervision orders. Key features of the scheme should be as follows:

(a) The guiding principle underpinning the scheme should be to assist counselling and treatment processes for all people affected by an offence.

(b) Participation by victims is voluntary and can only occur with the consent of the victim.

(c) Where general information about the order is provided to the victim, information sharing could occur without the consent of the person on the supervision order.

(d) If the person on the supervision order consents, and doing so would not be detrimental to the recovery of the person, additional information about the person’s treatment could be provided to the victim.

 

Cost implications of victim-focussed recommendations

  1. 8.78 The Commission’s recommendation to introduce a victim support scheme will have resource implications in terms of scoping and initial set up, as well as ongoing resourcing.
  2. 8.79 The work required for the Office of Public Prosecutions (OPP) will also have an impact on organisational resources. However, there could be a reduction in resources once the register has been established, due to the creation of a more efficient process of communicating with victims. There may also be a cost saving from the reduction in notifications that are sent by registered mail, in cases where the victim has indicated
    that a different method, such as email, can be used or that they do not wish to receive any notifications.
  3. 8.80 Setting up the recommended information-sharing scheme between Forensicare, the Department of Human Services and the OPP will have resource impacts for all three agencies. However, depending on the approach taken to the victim support scheme recommended above, some of this work could be streamlined.

People subject to supervision orders

  1. 8.81 In considering the interests of people subject to supervision orders under the CMIA,
    the Commission has considered both the level of legal representation currently being provided to people subject to the CMIA, and the need for advocacy for people subject
    to supervision orders under the CMIA.

Legal representation

  1. 8.82 A person subject to a supervision order has the right to appear before the court,
    in person, in any hearing in which the court is considering:
  • making, varying or revoking a supervision order in respect of the person
  • granting extended leave to the person
  • revoking a grant of extended leave.64
  1. 8.83 The CMIA allows the person subject to a supervision order to be legally represented at any of these hearings.65 A person applying for leave before the Forensic Leave Panel
    may also be represented by a legal practitioner.66
  2. 8.84 Most people subject to a supervision order have legal representation when the court
    is making, varying or revoking the order. As mentioned in the consultation paper,
    however, legal representation at Forensic Leave Panel hearings is uncommon, with only
    six applicants legally represented in 22 hearings conducted in 2011.67
  3. 8.85 The Commission sought views on whether the current level of legal representation for people subject to supervision orders is appropriate.

Views in submissions and consultations

  1. 8.86 Victoria Legal Aid (VLA) submitted that formal legal representation would not be required at all hearings for people subject to orders under the CMIA. VLA advised that there are benefits in legal representation where leave applications are not supported or are contested and that, operationally, there is a process in place to refer these matters to VLA.
  2. 8.87 One person with an intellectual disability on a supervision order provided an example of a legal representative also acting as an advocate.68
  3. 8.88 They explained the role of their lawyer in court as follows:

My lawyer was good at helping me to understand what was going on in court. I was able to talk to them and tell them how I was feeling. I was happy for my lawyer to talk for me in court.69

  1. 8.89 A participant at a consultation meeting with people subject to custodial supervision orders said that they had legal representation at one of their early hearings before the Forensic Leave Panel and that they found this very helpful.70

 

  1. 8.90 However, in the submission made by Forensicare’s Patient Consulting Group, a view was expressed that lawyers sometimes advocate in a best interests model rather than on instructions from the accused:

Currently a mental impairment defence seems to exacerbate stigma and reduce consultation and collaboration with the defendant as there is an assumption that the defendant won’t understand. Sometimes lawyers have strong views on the direction
the case should take and impose this on defendants.71

The Commission’s conclusion

  1. 8.91 The Commission acknowledges that legal representation has been held to be a part of the right to a fair hearing.72
  2. 8.92 Based on the views of VLA that additional legal representation is not required at CMIA hearings, the Commission does not make a recommendation about legal representation.

Advocacy for people subject to supervision orders

  1. 8.93 An advocate can encompass a lot of different roles beyond legal representation.
    This could include providing information to a person about their rights and assisting
    the person to exercise their rights in a variety of ways, from facilitating discussions through to best interests representation.
  2. 8.94 The principles of least restriction and gradual reintegration underlying the CMIA aim to ensure that people progress through the various stages of supervision and that their liberty is not restricted for longer than required. The aim is to effect successful community reintegration and to protect the community effectively. However, these principles may be of limited benefit, given the vulnerability of people subject to the CMIA who may require assistance to be able to exercise these rights.
  3. 8.95 As stated in the Commission’s Guardianship report, there is little point in having a principle of least restriction unless people detained in custody under a supervision order receive assistance from a skilled advocate.73 The Commission therefore recommended in that report that the role of advocacy for people subject to supervision orders under the CMIA be legislated and appropriately resourced.74
  4. 8.96 Advocates could assist people subject to a supervision order to decide whether they should apply for a review to vary the order, or to assist a person during a review hearing.75
  5. 8.97 Under the Disability Act 2006 (Vic), the Office of the Public Advocate is empowered to protect and promote the rights of people with a disability.76 The Mental Health Act 2014 (Vic)77 (‘MHA 2014’) provides an advocacy program for people receiving public mental health services. The advocacy program will provide advocates to visit mental health services and provide telephone advice to ‘assist people to participate in decisions about their assessment, treatment and recovery’.78 Advocates will provide information, empower patients to make their own decisions about their treatment and recovery and where required, make representations on behalf of people.79

 

  1. 8.98 The Community Visitor Program run by the Office of the Public Advocate comprises volunteers who conduct unannounced visits to accommodation facilities for people with
    a disability or a mental illness at any time to monitor and report on the adequacy of services provided, in the interests of residents and patients.80
  2. 8.99 Consumer consultants at Forensicare provide systemic advocacy for patients to promote effective service delivery. While consumer consultants do not advocate on behalf of patients, they work with and support patients to participate in their treatment and recovery and facilitate awareness about services and options. Consumer consultants
    also have a role in providing support and advice to staff on service provision from a patient perspective.
  3. 8.100 The consumer consultants focus on broad systemic issues that promote effective service delivery. They do not advocate on behalf of individual patients, unless the issue may have broader application.
  4. 8.101 The Consumer Leadership and Engagement Program established by Forensicare provides the opportunity for people subject to supervision orders to be involved in the ‘development, planning, management, delivery and evaluation’ of services at Forensicare.
  5. 8.102 People subject to supervision orders can also advocate for themselves and become involved in service improvement through two groups established by Forensicare:
  • Consumer Advisory Group: consists of patients at Thomas Embling Hospital and current and past patients of Thomas Embling hospital who are part of the Community Forensic Mental Health Service. The group meets monthly and aims to ‘enhance the quality of Forensicare’s service delivery across the organisation’.81
  • Patient Consulting Group: consists of patients at Thomas Embling Hospital who meet fortnightly to ‘participate in the development and implementation of a recovery approach across Forensicare’ and ‘provide consultation, feedback and education to the wider service and the Clinical Governance Management Committee’.82
  1. 8.103 The Commission sought views on whether there is a need for more advocacy or support for people subject to supervision orders.

Views in submissions and consultations

  1. 8.104 The Office of the Public Advocate called for a legislated right for people on supervision orders to access advocacy at regular intervals, especially during reviews of supervision orders, for applications to vary orders and for decisions about leave.83 The Office of the Public Advocate also supported the recommendation in the Commission’s report on guardianship that the role of advocacy for people subject to supervision orders under
    the CMIA be legislated and appropriately resourced.84

 

  1. 8.105 The Office of the Public Advocate provided the following case study to illustrate the importance of advocacy for people under the CMIA:

Case study: Mr A

Mr A, who was 41 years of age and had an intellectual disability, spent 371 days in remand prior to being found unfit to plead by a jury. Mr A spent an extended period in custody due to the lack of availability of a suitable disability accommodation treatment facility. His period of incarceration resulted in distress for Mr A. During his incarceration he was chemically restrained as staff did not know how to manage his behaviour.
The OPA [Office of the Public Advocate] advocate involved in the case made the point that there was a link between Mr A’s deterioration and the lack of services that he received. She said that to continue in the current situation was a significant breach of
his human rights. The County Court Judge involved in the case said the circumstances
of Mr A were ‘intolerable and unacceptable’. Following advocacy by OPA [Office of the Public Advocate] and a request from the Judge to the Secretary of the Department of Human Services, a placement was found for Mr A.85

  1. 8.106 A number of patients at the consultation meeting with the Consumer Advisory Group
    at Thomas Embling Hospital raised the possibility of creating a peer worker program.
    Such a program could use the expertise of people with lived experiences of mental illness to advocate on behalf of patients and work in groups with patients and staff at
    Thomas Embling.86
  2. 8.107 Another participant at the Commission’s consultation with the Consumer Advisory Group at Thomas Embling Hospital explained the operation of the Personal Helpers and Mentors Program, which is a federally-funded program supporting people in the community whose lives are affected by mental illness. This participant supported the introduction of
    a similar program at Thomas Embling Hospital.87
  3. 8.108 Participants in consultation meetings conducted by the Commission with staff of the Department of Human Services (DHS) also supported the development of an advocacy program for people subject to supervision orders under the CMIA.88 One DHS case worker suggested an advocate or independent third person could be useful in court to translate issues ‘from lawyer talk’ into something the individual can understand.89
    The case worker suggested that advocates would need to have specialised knowledge and should not be general social workers or from ‘an ordinary local advocacy agency’.90
  4. 8.109 Another DHS case worker suggested the involvement of the Office of the Public Advocate, arguing that there needs to be an oversight mechanism to protect people’s rights and to ensure consistency. 91
  5. 8.110 This concept of an advocate ‘translating issues’ for people subject to supervision orders may have application in addressing miscommunications between people on supervision orders and those involved in decision making under the CMIA. For example, it was evident from the Commission’s consultations with forensic patients in Thomas Embling Hospital that there are misconceptions about the factors that can influence the outcome of a leave hearing, such as clothing choice and how members of the Forensic Leave Panel may have been feeling on a particular day.

 

  1. 8.111 One participant in a consultation meeting with the Consumer Advisory Group at Thomas Embling said that they wore a suit as they believed it would impress the Forensic Leave Panel members and demonstrate that they were serious about their leave application.
    At the leave hearing, the judge complimented this participant on their suit, causing them to feel that the suit may have positively affected the result of the hearing.92
  2. 8.112 Another participant commented that they wanted to go to their hearing dressed in their customary way in pants and a jumper, and did not feel they had to dress up just to make a good impression.93
  3. 8.113 Another perception expressed by a participant was that the outcome of their leave application ‘seemed to be influenced by the judge’s mood’.94
  4. 8.114 Advocates could assist in these situations by explaining processes, providing information or facilitating discussions between people on supervision orders and decision makers. This approach would quickly address any miscommunications that may arise and improve transparency in decision making for people subject to supervision orders under the CMIA.

The Commission’s conclusion

  1. 8.115 The Commission’s aim in making recommendations in this area is to provide accessible advocacy for persons subject to CMIA orders.
  2. 8.116 The Commission agrees that people on supervision orders under the CMIA should have access to advocacy services that provide information and assist the person to exercise their rights.
  3. 8.117 The Commission supports the recommendation in its report on guardianship that advocacy for people subject to supervision orders under the CMIA should be legislated and appropriately resourced, but it is not recommending that advocacy be legislated for people under the CMIA.
  4. 8.118 In its Inquiry into Access to and Interaction with the Justice System by People with an Intellectual Disability and their Families and Carers, the Victorian Parliament Law Reform Committee made the following finding:

Disability advocacy plays an important role promoting the human rights of people with an intellectual disability or cognitive impairment. An ongoing relationship with a disability advocate is a positive mechanism for helping a person with an intellectual disability or cognitive impairment navigate through the justice system.95

  1. 8.119 The Commission supports Recommendation 5 of the Victorian Parliament Law Reform Committee. It recommended that:

the Victorian Government ensure that clients with a disability who seek assistance from disability advocacy services have adequate access to those services.96

  1. 8.120 There have been developments since the Commission’s previous recommendation for legislated advocacy. Two important developments are changes to the role of the
    Mental Health Legal Centre and the commencement of theMHA 2014, discussed
    above at [8.97].97

 

  1. 8.121 As part of the implementation of the MHA 2014, it was announced that the Department of Health is providing funding for advocacy services to ‘support patients in public mental health services to understand and exercise their rights’.98
  2. 8.122 The second development relates to changes in funding to the Mental Health Legal Centre that have significantly reduced the level of services it is able to provide. This means that it is unlikely to be able to provide an advocacy service for people on supervision orders. Victoria Legal Aid will, however, continue to provide specialist legal assistance through its Mental Health and Disability Advocacy program.
  3. 8.123 Given the current and proposed developments in the mental health sector and the range of services available through the Office of the Public Advocate in the disability sector, it is unclear whether all people subject to a supervision order under the CMIA will have access to advocacy services.
  4. 8.124 It is beyond the scope of this reference to determine the nature and scope of advocacy services that are required by people on supervision orders under the CMIA. To appropriately resource a legislated advocacy scheme, a scoping exercise should be undertaken to:
  • determine which services are currently being provided to people under the CMIA
  • identify gaps where people subject to the CMIA are unable to access timely advocacy services.

 

Recommendation

61 The Department of Human Services and the Department of Health should undertake a gap analysis of advocacy services for people who are subject to the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) to ensure that all people subject to the Act have access to advocacy services.
The analysis should have specific reference to the gaps in relation to a range
of advocacy services, from formal advocacy to ‘peer advocacy’ programs and the exercise of rights that include the following:

(a) rights of appeal against findings and supervision orders imposed
under the Act

(b) rights to apply for a variation or revocation of a supervision order

(c) rights to apply for extended leave and other leave

(d) rights in relation to bail and remand (including place of custody)

(e) rights in relation to restrictive practices and compulsory treatment.

 

Community interests

Parties involved in CMIA proceedings

  1. 8.125 Government bodies and the prosecution are involved in various stages of making and reviewing supervision and leave orders. The main purpose of their involvement is to represent the public interest and to assist the court.
  2. 8.126 In the consultation paper, the Commission set out in detail the different level of involvement of government bodies and the prosecution in different stages of the
    CMIA process.99
  3. 8.127 The Attorney-General, the Director of Public Prosecutions, the Department of Health
    and the Department of Human Services may be involved in the following hearings:
  • orders for unconditional release and supervision orders
  • making, varying or revoking a supervision order and granting extended leave
    (or revoking extended leave)
  • appeals against confirmation, variation and revocation of supervision orders
  • leave and extended leave appeals
  • appeal against unconditional release of a person transferred to Victoria.
  1. 8.128 This means that aside from the person subject to the supervision order, the Attorney-General, Director of Public Prosecutions, Secretary to the Department of Human Services or Secretary to the Department of Health may also be involved in a hearing or appeal concerning supervision orders. In the consultation paper, the Commission identified that the involvement of these parties may be problematic for the following reasons:
  • The interests of the state (executive and prosecution) may be over-represented
    The current arrangement results in two government bodies acting in the interests of the community and potentially in opposition to the person subject to the supervision order (although the prosecution and government bodies do not always take an opposing stance). This raises the question of whether these provisions create an imbalance in representation and whether the involvement of all of these parties is necessary to effectively represent the community’s interest. Further, one of the purposes of the introduction of the CMIA was to reduce executive involvement.
  • Involvement of multiple parties can have resource implications and increase the length of the process—The involvement of multiple parties could result in delays to hearings because of the number of people that need to be coordinated. If each party must put a view forward, this also results in longer hearings.
  • Lack of clarity in the CMIA on the reason for involvement—The parties involved
    may see their role as tokenistic or merely a formality. The CMIA does not make
    clear why these parties are involved at different stages, other than to represent
    the public interest.
  1. 8.129 The Commission sought views on the representation of community interests in the CMIA system of supervision, and in particular:
  • whether the involvement of multiple agencies representing the community’s interests unnecessarily increases costs
  • the most appropriate way of representing the community’s interests under the CMIA.

 

  1. 8.130 During the reference period and prior to the publication of the consultation paper, the Court of Appeal also considered the responsibilities of various parties in CMIA proceedings in NOM v DPP (‘NOM’).100 In NOM the Court of Appeal held that the Attorney-General and Secretary to the Department of Health should take a position on whether the court should vary the existing regime of supervision.101
  2. 8.131 However, it remains unclear which party represents the interests of the community in hearings of applications to vary or revoke a supervision order or to grant or revoke a grant of extended leave under the CMIA. Either the Attorney-General or the Director of Public Prosecutions could possibly undertake this function.
  3. 8.132 A discussion of the roles of various parties involved in CMIA proceedings is
    provided below.

Current roles of parties in representing community interests

  1. 8.133 A person or body may be a party to proceedings or amicus curiae (‘friend of the court’). Whether a person or body is a party or amicus curiae should depend on the nature of its interest in the outcome of the proceedings. The rights accorded to the person or body flow from the effect the orders would have on them.
  2. 8.134 A body might become joined to a proceeding in three ways: as an original party; as an intervenor; or as amicus curiae. Sir Anthony Mason made the following distinction between the status of an intervenor and amicus curiae:

Intervenors become parties who are liable to an order for costs being made against them; they have the rights of parties. … Intervention status has traditionally carried an entitlement to present oral argument, an entitlement that is both necessary and appropriate to a person who has the status of a party. The rules of natural justice entitle such a party to be heard. Amicus status is different. Underlying the procedure is the notion that the amicus is presenting an argument which will assist the Court. So there is no entitlement to present an oral argument and there is every reason for limiting the amicus to cases in which the amicus will deliver an argument which would not otherwise be presented to the Court and limiting the argument to written argument, except in exceptional cases [emphasis in original].102

  1. 8.135 In legal terms, a party, whether original or intervening, has a legitimate expectation that its submissions will be heard and considered. This is guaranteed to the parties by the rules of natural justice.103

The role of the Attorney-General

  1. 8.136 Under the ‘Governor’s pleasure’ regime that governed this area of the law prior to the introduction of the CMIA, the executive104 made decisions on the release of people under Governor’s pleasure orders. The Adult Parole Board would review detainees every 12 months and provide a report to the Attorney-General. The Attorney-General would then make a decision about whether to recommend release to Cabinet. If the Attorney-General recommended release, Cabinet would discuss the recommendation and if approved, refer the matter to the Governor-in-Council. If release was approved by the Governor-in-Council, the person would be supervised by the Adult Parole Board for five years. A decision to release a person under a Governor’s pleasure order could therefore be influenced by political considerations.105
  2. 8.137 Prior to the decision in NOM, the role of the Attorney-General under the CMIA was discretionary, usually involved the testing of evidence adduced by other parties, and sometimes involved submissions as to outcome.
  3. 8.138 The Forensic Health Legislation (Amendment) Act 2002 (Vic) amended the CMIA to give the Attorney-General to right to appear and the right to appeal a court decision under the CMIA. In the second reading speech for the Bill, the Minister for Health stated that:

Experience has shown that the involvement of the Attorney-General’s legal representatives speaking on behalf of the community is invaluable. The Attorney is
the first law officer of the state and has played no part in the initial prosecution.
The Attorney can therefore come to court to protect the community’s interests.106

  1. 8.139 The Court of Appeal in NOM held that in addition to the function that the Attorney-General usually takes in adducing evidence and cross-examining witnesses to explore the evidence, the Attorney-General and the Secretary to the Department of Health should adopt a ‘clear and unequivocal position where the evidence permits’.107 The Court of Appeal also observed that a failure to take up any position could give rise to a perception that there was a desire to avoid any public criticism if the person was to re-offend.108
  2. 8.140 It is unclear why the Attorney-General is required to take such an active role in CMIA proceedings compared with other proceedings. One reason may be the ‘quasi-inquisitorial’ nature of the proceedings as outlined by the Court of Appeal in NOM:

It is clear from the structure of the Act … that the nature of an application for revocation of a supervision order is imbued with a substantial inquisitorial dimension. … As in the case of the Secretary, the Attorney-General, as a party to quasi-inquisitorial proceedings, may play an important role in presenting and exploring the facts. … The inquisitorial role which the Attorney-General seeks to discharge is not in any way incompatible with making submissions as to whether the existing regime of supervision and treatment should be varied [citations omitted].109

  1. 8.141 One of the concerns with this approach is the involvement of the executive government in decision making under the CMIA. This difference between executive and judicial functions recognises that decisions by the executive are ‘unlikely to preserve the rights of individuals, such as forensic patients who pose a range of risks: risk of harm to others, risk of re-offending, risk of relapsing from a serious mental illness’.110
  2. 8.142 Concerns around the involvement or input of the executive in decisions relating to the detention and supervision of people subject to the CMIA was one of the key criticisms of the Governor’s pleasure regime that was replaced by the CMIA. In examining the role of the Attorney-General in determining release for detainees under the Governor’s pleasure regime, the Community Development Committee’s Inquiry into Persons Detained at the Governor’s Pleasure in 1995 identified the following problems:
  • The executive is not necessarily the most qualified body to determine decisions
    about release.
  • Decision makers will possibly be ‘over-cautious’ in balancing the best interests of
    the detainee with the interests of the community.
  • The nature of parliamentary decision making may not be consistent with the best interests of the person and the principles of natural justice.111

 

  1. 8.143 Based on these considerations, the Community Development Committee recommended that ‘variation or release proceedings involving persons found not guilty on the ground of mental impairment should be conducted before a judge of the Supreme Court, regardless of where the original trial was conducted’.112
  2. 8.144 In 1993, the Human Rights and Equal Opportunity Commission (HREOC) released the Burdekin Report,113 an inquiry into the human rights of people with a mental illness, including forensic patients. In commenting on the previous Governor’s pleasure regime, HREOC highlighted the importance of not involving the executive government in the decision-making process to determine if a forensic patient should be released:

Perhaps mindful of how poorly equipped they are for the task, decision-makers tend to make very conservative assessments. The impression of witnesses who gave evidence on this topic was that regardless of what the advisory body recommends, the decision-makers generally decide against release … It seems improbable that such decisions are always based on a rational assessment of the prisoner’s potential threat to the rights of the wider community. The prime criterion is sometimes the potential for political damage to a government perceived by the public as being soft on criminals.114

  1. 8.145 In its recent review, the New South Wales Law Reform Commission recommended retaining the requirement to notify the Attorney-General of the release of a person under their system, given the Attorney-General’s appeal rights.115 In New South Wales, however, the Attorney-General may only appeal on a question of law.116

The role of the Director of Public Prosecutions

  1. 8.146 Under the Governor’s pleasure regime, once a person became a detainee they had no right to appear at reviews by the Adult Parole Board and there was no right for legal representatives to appear at reviews on behalf of the detainee. There was also no right to appeal a decision of the Adult Parole Board. The role of the Director of Public Prosecutions (DPP) was therefore limited to prosecuting matters under the Crimes Act 1958 (Vic).
  2. 8.147 The DPP operates independently of government in relation to ‘decisions on the institution, preparation and conduct of criminal proceedings’.117 The DPP ‘commands a unique and crucial position within Victoria’s criminal justice system’ and leads the conduct of criminal prosecutions with ‘independence, integrity and impartiality’.118
  3. 8.148 In considering the independence of the DPP, a distinction is to be drawn between independence and accountability. While the DPP is independent from the executive government, the position is accountable to the Attorney-General for performance of their functions and powers.119
  4. 8.149 The Office of Public Prosecutions (OPP) conducts litigation on behalf of the DPP.120 The OPP also provides support to victims through its Victims Strategy and Services section.

 

  1. 8.150 The DPP is required to behave as a model litigant.121 The guidelines set out requirements that government agencies must adhere to, including to act consistently and fairly in handling litigation and in undertaking and pursuing appeals, and to consider whether there are ‘reasonable prospects for success’ or if the appeal is ‘otherwise justified in the public interest’.122
  2. 8.151 After a supervision order has been imposed, the role of the DPP does not extend beyond providing information to the court on their requirement to give notice to victims and family members. The DPP usually seeks to be excused and takes no active part in hearings after informing the court that they have fulfilled their obligations to notify victims and family members.123
  3. 8.152 One example of where the DPP’s role continues post-sentence is the process of review for indefinite sentences under the Sentencing Act 1991 (Vic).124 Indefinite sentences may be imposed by a court on its own initiative or on an application made by the DPP.125
    The DPP is involved in the process of reviewing indefinite sentences by making applications for review,
    leading evidence at the review and appealing the outcome of a review.126
  4. 8.153 The DPP also has a role under the Serious Sex Offenders (Detention and Supervision) Act 2009 (Vic) which provides for the continued detention of serious and high-risk sex offenders post-sentence. The DPP may act as an applicant for a detention order and must give notice of an application to victims listed on the Victims Register.127 The DPP must notify the Secretary of the Department of Justice as soon as possible after an indefinite order is imposed.128

The roles of the Department of Health and the Department of Human Services

  1. 8.154 Before NOM, the role of the Department of Health (DH) was largely administrative and focussed on facilitating the production of evidence before the court.129 Under the Governor’s pleasure regime, reports were prepared for reviews by the Adult Parole Board by ‘professional staff responsible for the treatment and management of the detainees’.130
  2. 8.155 However, in NOM it was held that that the nature of an application for revocation has a ‘substantial inquisitorial dimension’ and that the Secretary to DH, ‘as a party to quasi-inquisitorial proceedings, should play a role in presenting and exploring the facts and in making submissions’.131
  3. 8.156 As with the role of the Attorney-General, the Court of Appeal in NOM held that the Secretary to DH should take a position on whether the court should vary the existing regime of supervision.132
  4. 8.157 The Department of Human Services (DHS) was not a party to the proceeding in NOM. However, due to DHS’s similar responsibilities and rights to appear in CMIA matters where DHS (rather than DH) supervises the person subject to the order, the decision may have implications for its obligations as well.
  5. 8.158 The role undertaken by DHS in having the ‘custody, care and control’ of forensic residents under the CMIA is quite different to the role played by the Secretary to DH.

 

  1. 8.159 While DH provides treatment and care to forensic patients ‘at arms length’ through Forensicare, DHS directly provides services to forensic residents through DHS case managers. Case managers facilitate treatment, develop care plans and directly supervise forensic residents.
  2. 8.160 In addition, DHS and DH do not have experience in providing information on the risk a person poses to the community. This expertise lies with expert witnesses such as forensic psychiatrists and psychologists. However, the departments are often called upon to take a position as to the risk a person would pose in a non-custodial setting or if their order were revoked.

Views in submissions and consultations

  1. 8.161 The Commission did not receive a large volume of input on this issue and very few submissions specifically addressed the questions raised by the Commission.

Resources

  1. 8.162 Victoria Legal Aid was of the view that review processes are currently resource-intensive and highlighted that ‘[a]ny increase in the number of agencies specifically representing the community’s interests will further increase these costs’.133

Representing the community’s interests

  1. 8.163 Two submissions were supportive of the current system and were of the view that a consideration of community interests is inherent in the process of judicial decision making.134 One participant in a consultation meeting with the Department of Health highlighted that there are advantages to having a range of parties involved in CMIA hearings, such as obtaining perspectives on the issue, which is particularly important in relation to matters of risk assessment.135
  2. 8.164 In considering the role of the Attorney-General, one participant in a meeting with judges of the County Court of Victoria stated that the input from the Attorney-General in these matters can be ‘pro-forma’.136 It was also noted that legal practitioners representing the Attorney-General often act on instructions to ‘effectively seek guarantees’ that cannot be provided that ensure that people subject to supervision orders no longer pose a risk to the community.137
  3. 8.165 A participant in a consultation meeting with DHS case managers supported this view, pointing out that in their experience ‘[t]he Attorney-General’s position always tends to be that they do not want any change in the order’.138
  4. 8.166 The OPP advised that they do not currently make a submission in CMIA hearings about the result but instead limit their role ‘to informing the court about notice to victims and family members, whether victims or family members have prepared a report, and any other matters relating to the Act that the court requires assistance with’.139 The DPP usually seeks to be excused from the proceedings once this role has been fulfilled and leave to do so is usually granted by the court.140

 

  1. 8.167 The DPP may also be directed to file an outline of the case with the court as provided in section 76A of the CMIA. The OPP explained this role in their submission as preparing the ‘summary of facts and proceedings in the case’ in the Supreme Court and providing the ‘other parties with copies of the depositions, or Crown opening, or other documents from the original court hearing’ in the County Court.141
  2. 8.168 The OPP also explained that in certain cases the DPP, rather than the Attorney-General, has made an application for variation from a non-custodial supervision order to a custodial supervision order. The OPP advised that this tends to occur ‘where the person continues to offend (for instance), so those circumstances do arise where the DPP
    would wish to exercise a right for such an application and the right to an appeal from such a hearing’.142
  3. 8.169 In considering possible reforms, the OPP was not supportive of an expansion of the DPP’s role under the CMIA, suggesting that rights to appeal should not be extended but that its role should be limited to notifying victims and family members and informing the court about those matters.143 It was also proposed that the role of the OPP could be removed altogether if the CMIA was amended to transfer the role of providing victim and family member notification to the Attorney-General.144
  4. 8.170 In considering the role of DHS, one DHS case worker thought that the position of DHS should be ‘more like a “friend of the court”’, that is, a neutral position for the purpose of providing information. Another participant at this meeting explained that one of the difficulties in the requirement that DHS adopt a position in CMIA matters is that DHS provides both the treatment and supervision of people with an intellectual disability and this can place them in a difficult position with the person on the order.145
  5. 8.171 A DHS case worker in the same region highlighted that it is difficult for DHS to take a position in CMIA matters as this requires them to undertake a risk assessment when they ‘do not have the tools or structures to perform it’ and if an opinion was required, there would need to be appropriate training and tools in place to support this function.146
    It was therefore suggested that the role of DHS in these hearings should be to provide information rather than an opinion.147
  6. 8.172 The Criminal Bar Association raised the issue of ‘equality of arms’ in relation to the court being required to give weight to submissions from both the Attorney-General and the Secretary of the relevant department:

If the court is to give specific weight to the submissions of both the Attorney-General and the Secretary, this could give rise to unfairness or an “inequality of arms”. Whilst there is ample justification for the community’s interests to be represented by way of a contradictor, it would seem adequate that one party only performs this role. It is hoped that the passage of time will demonstrate that the Departments of Health or Human Services only adopt a position as to outcome in the clearest of cases.148

 

The Commission’s conclusion

  1. 8.173 The aim of the Commission in making recommendations is to clarify the law on hearings of an application to vary or revoke a supervision order, or to grant or revoke a grant of extended leave, in relation to:
  • who is responsible for representing the community’s interest under the CMIA
  • who is a ‘party’ under the CMIA
  • the roles of parties in hearings.
  1. 8.174 The Commission acknowledges that in its submission the Office of Public Prosecutions was not supportive of an expansion of the Director of Public Prosecution’s role under the CMIA (see [8.169]). However, the Commission concludes that the Director of Public Prosecutions should be responsible for representing the interests of the community in hearings related to supervision orders, extended leave and release of people subject to the CMIA. The Director of Public Prosecutions, and the Office of Public Prosecutions, who prosecute on the Director’s behalf, are well placed to deal with these matters for the following reasons:
  • the requirement to act as a ‘model litigant’
  • criminal proceedings are conducted independently of the executive government
  • their experience appearing in reviews of indefinite sentences discussed at [8.152]
  • their standing, expertise, knowledge and contact with victims.
  1. 8.175 The Attorney-General should not have a legislated role in CMIA review hearings
    because this role involves acting in the political interests of the executive government.149 One of the aims of the CMIA was to remove the role of the executive government in decision making under the legislation. The Attorney-General’s continued involvement in decision making under the CMIA would therefore contradict the underlying principles of the legislation.
  2. 8.176 The court may allow any other person having a ‘substantial interest in the matter’ to appear in person and, if the court gives leave, to be legally represented at hearings.150
    This provision would still allow the Attorney-General to appear in CMIA hearings with
    the court’s leave.
  3. 8.177 The role of the Department of Health and Department of Human Services should be re-framed as being witnesses and providers of evidence only and should not give them status as parties to the proceeding. The Department of Health and Department of Human Services are service providers and should assist the court by providing reports and evidence on the treatment and management of the person on the supervision order.
  4. 8.178 The Commission considers that the above approach is correct in principle, practical in application, and will result in cost savings in legal representation.

 

Recommendation

62 Amendments should be made to the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) to re-frame the roles of the Attorney-General, the Director of Public Prosecutions and the Secretaries to the Department of Health and Department of Human Services in proceedings under the Act
as follows:

(a) The Attorney-General should not be a party to proceedings under the Act or be specifically mentioned as having a role under the Act.

(b) The Attorney-General should not have an entitlement to appear under section 37(1)(a) of the Act.

(c) The interests of the community should be represented by the Director of Public Prosecutions. The Director of Public Prosecutions should be a party to the following proceedings:

(i) hearings of applications to make, vary or revoke a supervision order

(ii) hearings of applications for extended leave

(iii) appeals against decisions to make, vary, confirm or revoke a supervision order

(iv) appeals against decisions to grant extended leave

(v) appeals against decisions to refuse extended leave.

(d) The Secretary to the Department of Health and the Secretary to the Department of Human Services should not be a party to proceedings. The role of the Secretaries to these departments should be to provide reports to assist the court in decision making and to give evidence in hearings on the treatment and management of people on supervision orders under the Act.

 

Cost implications of re-framing roles under the CMIA

  1. 8.179 The Commission’s recommendations regarding the reframing of the role of different government organisations in representing the community’s interest are likely to have
    cost implications.
  2. 8.180 The reframing of the role of the Director of Public Prosecutions will require an increase in resources for the Office of Public Prosecutions to support a growth of its role to be responsible for representing the community.
  3. 8.181 The reframing of the roles of the Attorney-General, the Department of Health and the Department of Human Services, will likely result in a reduction in the resources required by those agencies for legal representation at court hearings. There will continue to be
    a resource requirement for the Department of Human Services and the Department of
    Health for the relevant staff to prepare reports and possibly attend court hearings to
    give evidence. However, the removal of the need for legal representation will result in
    a significant cost reduction.

Hearings for people supervised by Forensicare

  1. 8.182 Forensicare provided data to the Commission on the number of court hearings regarding people supervised by Forensicare. The data set covered court hearings for three financial years from 2010–11 to 2012–13 and related only to people supervised by Forensicare. Therefore, they do not represent the total court hearings related to people on supervision orders that would have occurred under the CMIA in that period.
  2. 8.183 Over the period, in total there were 204 court hearings relating to people on supervision orders under the CMIA. Broken down into financial years, these were as follows:
  • 2010–11: 69 court hearings
  • 2011–12: 63 court hearings
  • 2012–13: 72 court hearings.
  1. 8.184 The court hearings included major reviews of supervision orders, court-ordered reviews of supervision orders, applications for variation and revocation of supervision orders, applications for or renewal of extended leave and some mentions.151
  2. 8.185 For each of these hearing types for people supervised by Forensicare, there are potential costs associated with legal representation from up to four organisations, including:
  • the person on the supervision order (likely to be Victoria Legal Aid)—$557 fee in
    the County Court and $1057 fee in the Supreme Court for conference
    and appearance152
  • the Director of Public Prosecutions—$622 for a solicitor from the Office of Public Prosecutions for a County Court or Supreme Court review hearing matter
  • the Department of Health—an average of approximately $1700 for counsel fees
    per brief.153
  1. 8.186 Costs are also incurred by the Department of Justice through legal representation for the Attorney-General at hearings in relation to supervision orders. The Commission was provided information on this as a cost per supervised person rather than per hearing.
    The average cost of counsel fees, over a five-year period from 2009–10 to 2013–14, equates to $4720 per person per year.154
  2. 8.187 The costs for appearance fees will likely be higher for court hearings in the
    Supreme Court.
  3. 8.188 Information was available on the jurisdiction of the court hearings for the 2011–12 and 2012–13 financial years only. Of the 135 court hearings in that period, 63.7 per cent
    (86 court hearings) were in the County Court and the remaining 36.3 per cent (49 court hearings) were in the Supreme Court.155

 

  1. 8.189 In addition, costs are incurred by Forensicare in the preparation of reports and attendances in court by staff for hearings. In 2012–13, Forensicare staff prepared reports for 69 court hearings for people on supervision orders and attended court to give evidence in 59 of these hearings. If court hearings are delayed or adjourned, this can result in the need for further, updated reports when the matter is ultimately heard.156

Hearings for people supervised by the Department of Human Services

  1. 8.190 The Department of Human Services provided information on the number of hearings for the calendar years 2012 and 2013. For each year, there were:
  • 2012: 36 hearings in total, of which 12 were attended with counsel and 24 were attended without counsel
  • 2013: 39 hearings in total, of which 36 were attended with counsel and three were attended without counsel.
  1. 8.191 For each of these hearing types for people supervised by the Department of Human Services, there are potential costs associated with legal representation from up to four organisations, including:
  • the person on the supervision order (likely to be Victoria Legal Aid)—$557 fee in the County Court and $1057 fee in the Supreme Court for conference and appearance
  • the Director of Public Prosecutions—$622 for a solicitor from the Office of Public Prosecutions for a County Court or Supreme Court review hearing matter
  • the Department of Human Services—an average of approximately $2,296 for counsel fees per hearing157 (an average of $3,235 for each hearing in 2012 and an average of $1357 for each hearing in 2013).
  1. 8.192 Costs are also incurred by the Department of Justice through legal representation for the Attorney-General at hearings in relation to supervision orders. The Commission was provided information on this as a cost per supervised person rather than per hearing. The average cost of counsel fees, over a five-year period from 2009–10 to 2013–14, equates to $4720 per person per year.158
  2. 8.193 There was no information available on the jurisdiction for each hearing.

Suppression orders under the CMIA

  1. 8.194 This final section of the chapter outlines recommendations relating to suppression orders. This issue was not specified as a particular matter in the terms of reference but was raised in the consultation paper because in deciding to make a suppression order, judges must balance the principles of gradual reintegration, transparency and accountability, and community safety under the CMIA.
  2. 8.195 The Commission therefore sought views on whether the provision for suppression orders in the CMIA is operating justly, consistently and effectively with these principles.
    The Commission sought views on the following specific issues relating to suppression orders under the CMIA. These included:
  • the matters that the court should consider when making a suppression order
  • any issues that arise concerning suppression orders
  • the appropriate balance between therapeutic considerations and open proceedings.

The principle of open justice

  1. 8.196 Open justice is a fundamental aspect of the legal system. It is seen as a ‘fundamental aspect of the common law and the administration of justice’ and is demonstrated through procedures being conducted in ‘open court’, presenting information and evidence publicly to all those in the court and allowing the fair and accurate reporting of proceedings by the media.159
  2. 8.197 The principle of open justice requires that all court proceedings take place in public
    except in limited circumstances. This principle is reflected in section 24 of the Charter of Human Rights and Responsibilities Act 2006 (Vic) that provides for a ‘fair and public hearing’ for accused.
  3. 8.198 The Open Courts Act 2013 (Vic) was introduced on 1 December 2013 and consolidated provisions contained in various Acts relating to non-publication orders and closed court orders in the Supreme Court, the County Court, the Magistrates’ Court, the Coroner’s Court and the Victorian Civil and Administrative Tribunal. The Open Courts Act uses the term ‘suppression order’ which is consistent with terminology in the CMIA.
  4. 8.199 The second reading speech of the Open Courts Act describes its purpose as being to reinforce ‘the primacy of open justice and the free communication of information in relation to proceedings in Victorian courts and tribunals’.160 To achieve this aim, the legislation provides for a general presumption in favour of disclosure of information and of holding hearings in open court.161
  5. 8.200 The Open Courts Act outlines a range of factors that a court must consider before making a suppression order. The legislation includes ‘subject-matter specific’ exceptions
    to the Open Courts Act including the provisions in the Serious Sex Offenders (Detention and Supervision) Act 2009 (Vic) and the Public Health and Wellbeing Act 2008 (Vic) and the CMIA.162
  6. 8.201 While the operation of section 75 of the CMIA163 is not affected by the operation of the Open Courts Act, the principles in this legislation provide context for consideration of the issues relevant to the granting of suppression orders under the CMIA.

Mental illness and the media

  1. 8.202 This section describes some of the recent research on the reporting of cases in the media where unfitness or the defence of mental impairment has been raised. A consideration of the way in which the media represents these cases contextualises the specialised approach to suppression orders taken under the CMIA.
  2. 8.203 While evidence shows that reports about mental illness in the media have become more positive, reports about people with a mental illness accused of committing offences continue to be stigmatising and sensationalised.164 A New Zealand study examining references to mental illness in print media found that:

If those with a mental illness are only newsworthy when they generate conflict or constitute a threat to the community, then these aspects will be emphasised in organising stories and headlining articles. The successful patients living ordinary lives in the community are, because of their non-deviant character, simply not newsworthy or reportable. Such practices define the context within which we work to develop less stigmatised understandings of mental illness.165

  1. 8.204 One study examining news and current affairs-related items on free-to-air television stations found that, in contrast with a previous study looking at print media, representations of people with a mental illness in the broader Australian community did not predominantly associate mental illness with violence or bizarre behaviour.166 This study suggested that ‘deliberate media strategies promoted by beyondblue, MindFrame and other similar national strategies in recent years have fundamentally changed the wider community discourse about mental disorders’.167
  2. 8.205 A more recent study suggests that the perceived stigmatising effect of newspaper reporting of homicide by people with a mental illness may not be about selective over-reporting but about the manner in which mental illness is reported.168 This study, looking at print media in England and Wales, found that:

stigmatizing media reports will be particularly obvious and memorable to those individuals (e.g. patients, their families and mental health care providers) who are already feeling stigmatized or particularly aware of the problem of stigma.169

  1. 8.206 Another New Zealand study looked at this issue in more detail by comparing print
    media coverage of homicides involving mentally disordered offenders with homicides involving offenders who were not mentally impaired at the time of the offence. This
    study found that the language used in these articles may be responsible for reinforcing negative stereotypes:

The NGRMI [not guilty by reason of mental impairment] homicides were more often highlighted with bold sensationalized titles and accompanied with photographs depicting strong emotional themes. … it is fair to assume that these processes would assist in etching the event in the public mind.170

 

  1. 8.207 A study examining the reporting of schizophrenia in the Australian media, also found that ‘[v]iolence featured in 47.3% of stories and 46.0% were adjudged to be stigmatizing’.171
  2. 8.208 However, a PhD study by Meron Wondemaghen concluded from interviews with experienced crime reporters that it is the violent nature of the offence rather than the involvement of mental illness that creates such media attention:

The interviews propose that violent crime—rather than mental illness or the mentally ill—is the newsworthy aspect of a news story. It is unlikely that the press uniquely sensationalises mentally ill offenders as being inherently violent, as all violent offenders are prone to such news coverage because violence has news appeal.172

Suppression orders and the CMIA

  1. 8.209 The CMIA takes a different approach to the Open Courts Act in the making of suppression orders. This is evident in the results of a recent study looking at the number of suppression orders made in Victoria. Despite there only being a very small number of CMIA cases in the courts each year, the number of suppression orders made in CMIA cases is relatively large due to the special vulnerabilities of this group. A total of 1501 suppression orders were made in the Victorian Supreme, County and Magistrates’ Courts between 25 February 2008 and the end of 2012.173 Of these suppression orders,
    277 relied upon ‘subject-matter specific’ exceptions and 76 of those were made in relation to CMIA matters.174
  2. 8.210 Generally, a court may only make a suppression order if the order is ‘necessary to prevent a real and substantial risk of prejudice to the proper administration of justice that cannot be prevented by other reasonably available means’ or it is ‘necessary to protect the safety of any person’ [emphasis added].175 The test for making a suppression order under the CMIA, however, provides that the court may make a suppression order if it is in the public interest to do so.176
  3. 8.211 In Re PL,177 Justice Cummins stated that it is in the public interest that the progressive rehabilitation of the person subject to the supervision order is not defeated. However, Justice Cummins was also of the view that suppression orders should not be granted lightly, and that to justify a suppression order, ‘[t]he degree of likely negative impact
    [on the person subject to the supervision order] needs to be examined in each case’.178
  4. 8.212 People subject to supervision orders who have not yet been convicted of a crime are subject to this public interest test. The rationale for this was summarised by Justice Cummins in the case of Re PL:179

it must be remembered that applicants found not guilty by reason of mental impairment (or previously insanity) have not been convicted of a crime. Characteristically, they have suffered from a mental illness. The court’s jurisdiction in that respect is protective. It should be remembered that ultimately the best protection for the community is that persons found not guilty by reason of mental impairment are able to return to the community as useful citizens.180

 

  1. 8.213 A suppression order can be made under the CMIA to prevent the publication of any evidence given in the proceeding, the content of any report or other document put
    before the court in the proceeding, or any information that might enable an accused or any person who has appeared or given evidence in the proceeding to be identified.181
    A party to the proceeding may apply for a suppression order or the court may make it
    on its own initiative.182
  2. 8.214 The circumstances in which a court may make a suppression order to ‘any proceeding before a court’ under the CMIA are limited. Some people subject to supervision orders under the CMIA will not be involved in a proceeding under the CMIA until they make an application for extended leave or have their order reviewed. This may be many years from the time the supervision order was made and means that the person’s identity is unprotected during this time and when taking other forms of leave.

Views in submissions and consultations

  1. 8.215 A number of issues raised in submissions and consultations related to those that were raised in the consultation paper. These include setbacks in treatment and recovery due to publicity, the stigma associated with negative reporting of mental illness in the media and problems with successful reintegration. The issue of respect for the privacy of victims was not raised in submissions and consultations.
  2. 8.216 In addition to the issues identified in the consultation paper, issues were raised about the practical operation of section 75 of the CMIA and the effect that publishing identifying information of people on CMIA orders can have on others. These issues, along with those raised in the consultation paper, are discussed below.

Setbacks in treatment and recovery due to publicity

  1. 8.217 A number of submissions and consultations discussed the negative effect that media publicity can have on the rehabilitation of people on supervision orders under the CMIA.183 As one participant in the Consumer Advisory Group (Community Operations) consultation meeting stated:

whenever something of interest to the media happens at the [Thomas Embling] hospital, the media rehash things that other consumers of the service have done, even if they have nothing to do with the incident being reported. This can cause issues to resurface for consumers, carers and victims.184

  1. 8.218 Victoria Legal Aid argued that publication of information can be ‘detrimental to the wellbeing and therapeutic outcomes’ of people on supervision orders under the CMIA.185
  2. 8.219 Two submissions acknowledged the importance of the principles of open justice, yet argued that special considerations apply to people subject to supervision orders under
    the CMIA.186 Professor Andrew Carroll explained that without suppression orders:

it would be quite impossible to safely rehabilitate many of our patients. Open reporting would result in a media circus with the inevitable publicising and sensationalising of
our patients’ lives having a profoundly detrimental effect on their social adjustment
and mental health. The public do not in general appreciate that CMIA patients are
not criminal offenders, and any reporting would inevitably be prejudicial to good
long-term outcomes.
187

 

  1. 8.220 One participant in a consultation meeting with judges of the County Court of Victoria commented that there is a ‘sensationalisation of mentally ill offenders’ and that they
    need protection.188
  2. 8.221 Forensicare supported this view and raised the issue of stigma in relation to forensic patients, arguing that open proceedings may have ‘significant negative consequences’ for both the community and the person subject to the supervision order. The negative consequences may result from mental illness being a ‘highly stigmatising diagnosis’
    which poses challenges to the person on the order in terms of recovery and reintegration and make it more difficult for a person to ‘engage with community services, gain employment and form relationships’.189

Successful reintegration into the community

  1. 8.222 Forensicare argued that the best way to ensure community protection is through the successful reintegration into the community of people subject to CMIA orders.190
  2. 8.223 Submissions argued that publishing identifying information about people subject to CMIA orders may affect their successful reintegration into the community.191 As Forensicare explained, the stress of media publicity on forensic patients may increase the chance of relapse and ‘impede a person’s motivation to engage in rehabilitative processes’.192 People are less likely to engage with organisations in the community if they regard the community as hostile towards them and the ‘presence of good community integration, particularly employment, is well recognised as a factor that reduces a person’s long-term risk of engaging in violence’.193

The ‘public interest’ test

  1. 8.224 Forensicare commented that reporting of CMIA cases in the media can often be biased and while research indicates that the risk of violent offending by people on supervision orders under the CMIA is low, the ‘popular view usually overestimates the magnitude of risk of harm posed by those with a mental illness’.194 Forensicare was therefore of the view that the public interest in the successful reintegration of a person on a supervision order back into the community will almost always outweigh the public interest in being provided with information on individual cases. Publishing information on individual cases is only likely to increase the overestimation of the risk in the community and does not assist in increasing community understanding of any association between mental illness and offending.195
  2. 8.225 The Criminal Bar Association supported this view, explaining that the long-term stability of a person on a supervision order ‘is key’ and ‘provides the community with the strongest safeguard against further offending’.196 The Criminal Bar Association also highlighted that the ‘principle of open justice has always been subject to appropriate limitations necessary to do justice in an individual case’.197

 

  1. 8.226 The Criminal Bar Association acknowledged that while victims’ rights are important, suppression orders are not often made because victims’ rights tend to predominate over the rights of people on supervision orders.198
  2. 8.227 The Criminal Bar Association supported the principle underpinning the discussion in
    Re PL.199 It argued that stronger statutory mechanisms are required to be consistent with the reasoning in this case and to better reflect the objectives of the CMIA.200 It was also of the view that the therapeutic interests of the person on the supervision order ought to ‘routinely predominate’, subject to a public interest test, because they have not been convicted of a crime but are mentally ill.201
  3. 8.228 The Criminal Bar Association also supported the view that people on supervision orders under the CMIA are not subject to the usual sentencing principles but are diverted into a ‘supportive and therapeutic health care system’ and that this should be taken into account, subject to a public interest test.202
  4. 8.229 Forensicare argued that given the vulnerability of people subject to supervision orders and that they have not been convicted of a crime, it is appropriate to adopt a wider test for granting suppression orders under the CMIA than that which applies to other matters before the courts.203

Operation of section 75 of the CMIA

  1. 8.230 A number of submissions raised practical issues with the operation of section 75 of the CMIA.204 Forensicare was of the view that a suppression order should be able to be
    made at any time, not just limited to ‘proceedings before a court’ under the CMIA.
    As outlined by Forensicare, a person subject to a supervision order is not protected until
    a new application is made in relation to their supervision status, which may not occur until many years after the original order was imposed when the person applies for extended leave.205 Forensicare went on to question whether this difficulty arises from the practice of not seeking orders at the criminal trial or whether section 75 has been interpreted not to apply to proceedings at this stage.206
  2. 8.231 Victoria Legal Aid (VLA) supported the introduction of a presumption in favour of suppressing a person’s name or any information capable of identifying someone.207 VLA was also of the view that while most suppression orders only relate to information which could identify a person, there should be the capacity under the CMIA to apply for broader suppression orders.208
  3. 8.232 The Criminal Bar Association identified that there can be difficulties in specifying a time period for the suppression order in CMIA cases because the period for treatment and rehabilitation is likely to be lengthy and unable to be fixed. The Criminal Bar Association therefore recommended that the CMIA make specific reference to the ‘importance of long-term stability’ in considering suppression orders.209

Effect of suppression orders on others

  1. 8.233 The Australian Community Support Organisation (ACSO) raised concerns about the effect that media attention can have on other people with a mental illness or other cognitive impairment who may reside with the person on a supervision order. ACSO expressed the view that this should be a factor that is considered in deciding whether to make a supervision order, because:

Disruption at such a residence could impact on any of the residents’ capacity to effectively reintegrate into the community and pose risks outside the usual liability of accommodation provision. The suppression of names and addresses of residential facilities is sought in these special cases to ensure the safety and wellbeing of all.210

The Commission’s conclusion

  1. 8.234 The aims of the Commission in developing recommendations on suppression orders are to:
  • ensure community protection through the successful reintegration of people subject to supervision orders under the CMIA
  • clarify the circumstances in which suppression orders can be made under the CMIA.
  1. 8.235 The Commission acknowledges and supports the powerful principle of open courts. However, in recognition of the special vulnerability of a person accused of an offence under the CMIA, the importance of reintegration for community safety and the rehabilitation prospects of a person on a supervision order, the Commission agrees with the views expressed in submissions and consultations that there should be a presumption in favour of suppressing information that may identify a person under the CMIA.
  2. 8.236 The Commission also agrees that section 75 of the CMIA unnecessarily limits an application for a suppression order to ‘any proceeding before a court’ under the CMIA.

Recommendations

63 A statutory principle should be added to the provisions governing suppression orders under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) that outlines that the purpose of making a suppression order is to enable the long-term recovery of people subject to the Act and to facilitate community reintegration for the protection of the community.

64 Section 75 of the Crimes (Mental Impairment and Unfitness to be Tried)
Act 1997
(Vic) should be amended to:

(a) insert a presumption in favour of suppression of a person’s name and identifying information, and

(b) provide that where the court is satisfied that it is in the public interest
to do so:

(i) the court may make a suppression order in any proceeding
(within the meaning of section 4 of the Act), or

(ii) a person may make an application for a suppression order at any time once any proceeding (within the meaning of section 4 of
the Act) has commenced.

 

Footnotes

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