1 Background

In this chapter:


Young people in the criminal justice system

Young people and the CMIA

Children's Court of Victoria

Adult courts

The decision in CL



  1. 1.1 This paper contains supplementary consultation material prepared by the Victorian Law Reform Commission as part of its review of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997(Vic) (CMIA). It relates to supplementary terms of reference for the CMIA review received by the Commission from the Attorney-General on 24 September 2013.
  2. 1.2 The supplementary terms of reference request the Commission to consider whether the application of the CMIA should be further extended to the Children’s Court of Victoria (the Children’s Court), particularly in the light of the decision of the Victorian Court of Appeal in CL, A Minor (by his Litigation Guardian) v Director of Public Prosecutions (DPP) (obh Lee) [2011] VSCA 227.1 This paper functions as a supplement to the Commission’s consultation paper published in June 2013.2

Primary terms of reference for the CMIA review

  1. 1.3 In August 2012, the Attorney-General, the Hon. Robert Clark, MP asked the Commission, under section 5(1)(a) of the Victorian Law Reform Commission Act 2000 (Vic), to review and report on the desirability of changes to the CMIA to improve its operation. The terms of reference are set out on page iv of this paper.

Supplementary terms of reference for the CMIA review

  1. 1.4 The Commission has been asked to examine and report on these supplementary terms of reference in relation to the application of the CMIA to the Children’s Court within its review of the CMIA as a whole. Accordingly, the Attorney-General has revised the reporting date for the reference to be no later than 30 June 2014. The supplementary terms of reference are set out on page v of this paper.

The Commission’s approach

Consultation paper and consultations on primary terms of reference

  1. 1.5 The Commission’s approach is detailed in its consultation paper on the primary terms of reference.3
  2. 1.6 The Commission published the consultation paper in June 2013, along with a call for public submissions by 23 August 2013. The Commission received 22 submissions in response to the consultation paper. The Commission consulted widely with interested organisations and people to gather information and comments on the operation of the CMIA, identify issues and develop and test options for reform. At the time of publishing this paper, the Commission has conducted 45 consultation activities on the primary terms of reference.
  3. 1.7 The Commission has established an advisory committee comprising individuals with expertise in matters relevant to the review. The members of the advisory committee are detailed in the Commission’s consultation paper.4 Following its first meeting in April 2013, the committee met for a second time in September 2013 after the close of submissions on the primary terms of reference.

Consultation paper on supplementary terms of reference

  1. 1.8 This supplementary consultation paper relates to the supplementary terms of reference for the review of the CMIA, and builds on the work conducted on the primary terms of reference.
  2. 1.9 The purpose of the material is to assist the Commission to understand how the CMIA has been operating in relation to the Children’s Court since its introduction, as well as seek views from interested stakeholders on how the CMIA should operate in relation to young people.5
  3. 1.10 Due to the short time period, the Commission has not sought to conduct a comprehensive literature review or draft a further detailed consultation paper on the supplementary terms of reference.6
  4. 1.11 Instead, the supplementary consultation paper poses a series of questions, along with primarily descriptive information designed to contextualise those questions. The Commission has been informed by targeted preliminary research and a small number of preliminary meetings with key stakeholders in the sector.

Further formal consultations

  1. 1.12 The Commission will be conducting further consultations with key stakeholder groups.
  2. 1.13 The Commission wants to hear your views and experiences of the CMIA with regard to the Children’s Court and young people. It seeks comments on the questions in this supplementary consultation paper or any other issues you may wish to raise regarding the supplementary terms of reference. Your responses to the questions will assist the Commission to better understand the nature of the issues and to determine the most appropriate response in its recommendations.
  3. 1.14 Information about how to make a submission to the Commission is provided at page vi. To allow the Commission time to consider your views before deciding on final recommendations, submissions are due by 18 December 2013.

Final report on primary and supplementary terms of reference

  1. 1.15 The feedback and information that the Commission receives from submissions and formal consultations on this supplementary consultation paper, as well as the input received on the primary terms of reference, will inform its recommendations to the Attorney-General.
  2. 1.16 A report setting out the Commission’s recommendations regarding the primary and supplementary terms of references will be provided to the Attorney-General by 30 June 2014. The Attorney-General must table the report in the Victorian Parliament. The Victorian Government then decides whether to implement the Commission’s recommendations.

Young people in the criminal justice system

  1. 1.17 Much significant work has been done in relation to understanding the complex characteristics and needs of young people in the criminal justice system.7
  2. 1.18 While a comprehensive analysis of the nature of juvenile offending is beyond the terms of the current CMIA review, there are widely-agreed characteristics that set young offenders apart. These must be taken into account when determining whether changes should be made to the current system, and what the most appropriate changes would be.
  3. 1.19 Some basic statistical trends that seem consistent across jurisdictions include:8
  • Offending rates peak in late adolescence.
  • Young people commit only a relatively small proportion of all crimes.
  • Young people are less likely than adults to commit serious offences.
  • Young people are more likely than adults to come to the attention of police, for a variety of reasons.
  1. 1.20 The Commission’s preliminary research and discussions have highlighted that young people in the criminal justice system are highly likely to have experienced some form of disadvantage. A large percentage of young people in contact with the criminal justice system have had previous contact with child protection services, disability services, or the court system in relation to family matters. They also have high rates of exposure to abuse and trauma, histories of drug and alcohol use and of suspension and expulsion from school.9 Notably, many of these young people also have issues relating to mental health or intellectual functioning.

Young people and the CMIA

  1. 1.21 In the usual criminal process, if a person charged with an offence has a mental condition10that affects their capacity to a particular degree, there can be a legitimate basis for exempting them from the usual criminal process.
  2. 1.22 These exemptions are founded on long-established principles in the criminal justice system. A person should not be tried for an offence if at the time of trial they are mentally unfit to stand trial. A person should not be held criminally responsible and punished for an offence if at the time the offence occurred they did not have the capacity to commit the offence because of a mental impairment.
  3. 1.23 These principles form the basis of different laws and procedures contained in the CMIA. The CMIA governs the law and procedure in relation to people charged with criminal offences (‘accused people’) who are found to be mentally unfit to stand trial for those offences and/or who are found not guilty of those offences because of mental impairment.11
  4. 1.24 The supplementary terms of reference require consideration of what happens to young people who are charged with criminal offences (‘young accused people’) who have a mental condition such that it may give rise to a question of unfitness to stand trial or the defence of mental impairment.
  5. 1.25 In contrast to the vast body of knowledge regarding young people generally in the criminal justice system, less is known about this particular cohort of young people. For example, it is unclear whether and how unfitness to stand trial or the defence of mental impairment apply to young people, and the most suitable pathways for supervision and treatment of young people in the forensic disability and mental health systems are not necessarily agreed upon.
  6. 1.26 It is clear that young people face significant challenges in dealing with the criminal justice system generally, as their ability to fully understand and meaningfully participate may be impaired by their level of maturity and development. Coupled with the added difficulties posed by mental health problems and intellectual disabilities, young people with mental conditions represent a doubly vulnerable group in the criminal justice system.
  7. 1.27 The supplementary terms of reference require the Commission to examine how the criminal justice system and the CMIA should interact with regard to young people, in particular within the specialised jurisdiction for young people in the Children’s Court of Victoria.

Children’s Court of Victoria

  1. 1.28 The Children’s Court is a specialist court operating under the authority of the Children, Youth and Families Act 2005 (Vic) (CYFA). The purpose of the Act is to ‘make provision in relation to children who have been charged with, or who have been found guilty of, offences and to continue the Children’s Court of Victoria as a specialist court dealing with matters relating to children.’12
  2. 1.29 The Children’s Court has all the powers and authorities of the Magistrates’ Court, in relation to all of the matters over which it has jurisdiction.13
  3. 1.30 The purpose of the Children’s Court is to provide a ‘modern, professional, accessible and responsive specialist court system focussed on the needs of children, young persons and their families’.14
  4. 1.31 The Court is presided over by the President—a County Court judge appointed by Governor in Council15—and magistrates. When appointing magistrates to the Children’s Court, the President must have regard to their experience in child welfare matters.16
  5. 1.32 The Court is divided into the family, criminal and Koori (criminal) divisions, as well as the neighbourhood justice division.17

Civil and family jurisdictions

  1. 1.33 The family division of the Court hears applications and makes orders in relation to the protection and care of children.
  2. 1.34 Failure to pay infringements and other fines issued against children are dealt with in the Children’s Court by the Children and Young Persons Infringement Notice System.18

Criminal jurisdiction

  1. 1.35 The Criminal Division of the Court has jurisdiction to hear and determine summarily all summary offences and indictable offences charged against children, except seven indictable offences that result in death.19
  2. 1.36 The CYFA defines a child as a person who, at the time of the alleged commission of the offence in question:20

was under the age of 18 years but of or above the age of 10 years but does not include any person who is of or above the age of 19 years when a proceeding for the offence is commenced in the Court.

  1. 1.37 The seven death-related indictable offences specifically excluded from the Children’s Court’s jurisdiction are:
  • murder
  • attempted murder
  • manslaughter
  • child homicide
  • defensive homicide
  • arson causing death
  • culpable driving causing death.
  1. 1.38 The Criminal Division also has jurisdiction to conduct committal proceedings, to grant or refuse bail, and to deal with breaches of orders.21

Adult courts

  1. 1.39 Aside from the seven excluded offences listed above, the Children’s Court must generally determine all matters involving summary and other indictable offences relating to people who are children, or were children at the time of the alleged commission of the offence. However, there are particular circumstances in which such matters can be heard in adult courts, either by transfer to the Magistrates’ Court or by being uplifted to the Supreme Court or County Court.

Transfer to the Magistrates’ Court

Over 19 years—exceptional circumstances

  1. 1.40 Even if the accused was a child (under 18) at the time of the offence but over 19 at the time of the hearing, the Children’s Court must hear the matter unless it considers that there are exceptional circumstances which warrant the matter’s transfer.22If the Children’s Court considers that exceptional circumstances exist, the matter must be discontinued, and transferred to the Magistrates’ Court.
  2. 1.41 Factors which must be considered for these purposes include:
  • the age of the accused
  • the nature and circumstances of the alleged offence
  • the stage of the proceeding
  • whether the accused is the subject of another proceeding in any other court
  • any delay in the hearing of the charge and the reason for the delay
  • whether the sentences available to the Court are appropriate
  • whether the accused prefers the charge to be heard in the Children’s Court or the Magistrates’ Court
  • any other matter that the Court considers relevant.23

Uplifting a matter to the Supreme Court and County Court

Indictable offences—exceptional circumstances

  1. 1.42 Where a child is charged with an indictable offence (other than a death-related offence), the matter may be committed from the Children’s Court up to a higher court—either the Supreme Court or County Court. This may occur when the child (or their parents, in some situations)24 objects to a summary hearing,25 or where the judge decides that ‘exceptional circumstances’ justify a hearing by judge and jury in the higher courts.26
  2. 1.43 It is clear from judicial interpretation that in considering whether exceptional circumstances27exist, the Children’s Court should be reluctant to relinquish its jurisdiction.
  3. 1.44 In D (a Child) v White,28 Justice Nathan stated that as the Court has an ‘embracive’ jurisdiction relating to children, reasons to transfer a matter must be ‘special; … not matters of convenience or to avoid difficulties’.29 This was approved and furthered by Justice Cummins in A Child v A Magistrate of the Children’s Court & Ors,30 in which he added that ‘exceptional’ in the statutory form means ‘very unusual’, and that construal of the legislation as whole—noting the comprehensive nature of the Court’s scheme— makes it apparent that the Children’s Court should give up its jurisdiction ‘only with great reluctance’.31
  4. 1.45 In DL (A Minor by His Litigation Guardian) v A Magistrate of the Children’s Court & Ors,32 Justice Vincent described the legislative scheme relating to children in criminal proceedings as having a very different approach to that relating to adults ‘for a very good reason’. He was of the view that only ‘very special, unusual or exceptional circumstances’ can warrant the transfer of a matter to an adult jurisdiction.33
  5. 1.46 These views were also expressed by Justice Lasry in CL (A minor) v Tim Lee and Ors and Children’s Court of Victoria at Broadmeadows (CL at trial).34 Leave to appeal was sought by CL, which was considered by the Victorian Court of Appeal in CL, A Minor (by his Litigation Guardian) v Director of Public Prosecutions (DPP) (obh Lee) (CL on appeal).35 This particular issue was not expressly considered by the Court of Appeal in CL on appeal.

Committal proceedings

  1. 1.47 If it considers that exceptional circumstances exist, the Court will conduct a committal proceeding in order to determine whether the evidence has sufficient weight to support a finding of guilt against the child.36 The Court must then provide reasons for choosing not to determine the matter summarily.37
  2. 1.48 The Children’s Court is provided with two possible outcomes following such a committal hearing:
  • discharging the child
  • directing the child to be tried in the higher courts,38 either remanded in custody or bailed until that time.39
  1. 1.49 The procedure to be followed in a committal proceeding is found in the Criminal Procedure Act 2009 (Vic).40

The decision in CL

  1. 1.50 The supplementary terms of reference ask the Commission in particular to consider the Court of Appeal decision in CL, A Minor (by his Litigation Guardian) v Director of Public Prosecutions (on behalf of Tim Lee & Ors) (CL on appeal).41The essential question in that case was whether the Children’s Court of Victoria had jurisdiction to hear and determine the question of fitness to stand trial if it arose.
  2. 1.51 CL, a child, had been charged with numerous serious offences. He was before the Criminal Division of the Children’s Court sitting in Broadmeadows. A question of CL’s fitness to plead arose. The magistrate concluded that he did not have jurisdiction in that circumstance to proceed with the hearing in the Children’s Court and that the matters should proceed by way of committal proceeding to the County Court. CL, by his litigation guardian (his mother), sought judicial review in the Supreme Court of Victoria of that decision.42 The judge, Justice Lasry, held that the Children’s Court did not have jurisdiction to hear and determine the question of fitness to plead. Leave to appeal from that decision was sought. The Victorian Court of Appeal refused leave to appeal, holding that the decision of Justice Lasry was not in error.43
  3. 1.52 Accordingly, while the defence of mental impairment can be raised in the Magistrates’ Court and therefore in the Children’s Court, by virtue of section 5 of the CMIA, the antecedent question of fitness to plead cannot be heard in the Children’s Court. If it genuinely arises in that Court, the Court must direct the child to be tried in the higher courts, resulting in a possible committal to the Supreme or County Court of Victoria, where the question of fitness to plead can be heard and determined. This matter is considered at [2.57] and following.


Publication Process: 
Date Published: 
Thursday, November 28, 2013 - 10:30

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