Crimes Mental Impairment and Unfitness for Trial Legislation Victoria

The Crimes (Mental Impairment and Unfitness to be Tried) Amendment Bill 2016 (the Bill) was introduced into the Victorian Legislative Council on 23 February 2017 after having passed all stages in the lower house. The Bill proposes to amend Victoria’s Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (CMIA), Sentencing Act 1991, Confiscation Act 1997,  Road Safety Act 1986, Criminal Procedure Act 2009, Disability Act 2006, Mental Health Act 2014 and Public Prosecutions Act 1994. The Bill aims to implement the recommendations arising out of the Victorian Law Reform Commission’s review into the CMIA. The key alterations proposed by the Bill are to define “mental impairment” in the CMIA and include new unacceptable risk and fitness to plead guilty tests into the Act.

Key Reforms

Definition of “Mental Impairment”: The Bill introduces a new section 3A into CMIA to provide a non-exhaustive definition of “mental impairment”, which is currently not defined in that Act. Under the new section, mental impairment includes a mental illness and cognitive disability, but specifically does not include “a temporary disorder or disturbance of an otherwise healthy mind caused by an external event”, such as non-permanent psychosis caused by intoxication. Additionally, a person does not have a mental impairment merely because they have been diagnosed with a personality disorder.

Unacceptable Risk Test: The Bill replaces the current “serious endangerment” test with respect to decisions made under the CMIA with an “unacceptable risk” test. For a court or decision maker to find there is an unacceptable risk of a person causing harm, there must be “sufficient likelihood” of the person doing so when all relevant factors, including the nature and seriousness of the harm, are considered. The Bill provides that it is possible to find there is an unacceptable risk of a person causing harm “even if the likelihood of the person doing so is less than the likelihood of more likely than not”. According to the Second Reading Speech in the Legislative Assembly, this was one of the Victorian Law Reform Commission’s recommendations and would place the CMIA in line with other legislative schemes, including the serious sex offender supervision scheme.

Fitness to Plead Guilty Test: The Bill replaces CMIA section 6, which outlines when a person is fit to stand trial, and inserts a new section 6A  to include a new “fitness to plead guilty” test to be determined by the judge, not the jury. According to the Second Reading Speech, this test aims to ensure that a person only pleads guilty when they have the capacity to do so.

Decision-Making Principles: New principles to guide decision-making under the CMIA are outlined in the Bill. Decision-makers are required to consider, where relevant:

• the restrictions on a person’s freedom and personal autonomy;
• the impact on all stakeholders, including the victim, the accused and their respective families;
• the safety of the community;
• the rights of the accused; and
• the potential for unreasonable delays.

Additional considerations for the Children’s Court to take into account are set out in the Bill.

Other Amendments

The Bill also provides, among other things:

• Consolidation of the CMIA’s provisions outlining the powers that a court may exercise when remanding an accused into one section, a new section 5B;
• Replacement of CMIA sections 10 and 11, and insert a new section 11A, to set out the orders a court may make when investigating a person’s fitness to stand trial, and outline the process for such an investigation. Part 3.10 of the Evidence Act 2008 and 232A of the Criminal Procedure Act 2009 applies to an investigation into a person’s fitness;
• Replacement of CMIA sections 12 and 13 to outline the post-fitness investigation process, including dealing with adjournments;
• Insertion of sections 14A, 14B and 14C to allow the accused to appeal against the findings of the fitness investigation; and
• Amendment of CMIA sections 15-19, and insert a new section 16A, to outline the process of a special hearing to determine the criminal responsibility of an accused who has been found unfit to stand trial.

Next steps

The Bill faced significant opposition in the Legislative Assembly, and it is unclear whether it will pass the Legislative Council, either in its current or in an amended form.

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Crimes (Mental Impairment and Unfitness to be Tried) report (Victorian Law Reform Commission).

Crimes (Mental Impairment and Unfitness to be Tried) Amendment Bill 2016 and supporting explanatory material as reported in the TimeBase LawOne