28 August 2014

Mesmerised

The Courier-Mail reports that Jacob Reichman has pleaded guilty in the Brisbane Magistrates Court to engaging in legal practice when he wasn’t entitled and wrongly representing himself as being a lawyer.

Reichman is reported to have
made himself out to be a lawyer working at a Gold Coast firm when he fronted three different magistrates in a criminal matter before the Beenleigh Magistrates Court between January and July, 2013 [and reportedly] sent an email to the registry seeking an adjournment of the case where his signature block wrongly claimed he was a solicitor.
The prosecutor appears to have indicated that
Reichman was employed as a legal clerk for barrister Christopher Rosser at the time, not Michelle Porcheron Lawyers as he claimed in court. ...
Reichman’s story came undone when Mr Rosser advised Magistrate Trevor Morgan his young protégé was not an Australian legal practitioner but his clerk. The court was told Magistrate Morgan asked both Mr Rosser and Reichman to front his court the following day, but the young clerk was absent because he was sitting his final law exam. ... 
Reichman’s social media accounts were examined during the investigation, revealing he had posted screen-grabs of himself acting in a legal capacity on Channel 9 News on Facebook and Linked In. ... Instagram images posted by Reichman were accompanied with the hashtags: #lawyer, #younglawyer and #criminallawyers. Barrister Patricia Kirknan-Scroope, for Reichman, said her client was just 20 at the time and had moved up to the Gold Coast from Melbourne to accept a scholarship at Bond University in 2011. She said he was deeply ashamed and remorseful.
Ms Kirknan-Scroope said Reichman initially undertook work experience with Mr Rosser before he was hired as a legal clerk in 2012. He said Reichman “aspired” to be like his legal mentor and became “mesmerised” by the thought of owning his own practice one day. She said he graduated in September and still hoped to work as a lawyer, although he was not yet admitted.
Ms Kirknan-Scroope said Reichman still worked with Mr Rosser. She said his social media accounts were driven by an intense desire to impress his family in Melbourne. She said Reichman’s behaviour took place in the context of him failing to take his medication for Attention Deficit Disorder. 
The Courier-Mail reports the magistrate as commenting
“I can comprehend that you got swept away in the excitement of commencing what you believed was going to be your career at an earlier point than what you were permitted to do so.” But she said Reichman was very young and perhaps “mesmerised at the prospect of eagerness to join the legal fraternity”. She ordered he pay costs and did not record a conviction.

26 August 2014

Infringement

'Infringement Risk in Copyright-Intensive Industries' by Jonathan Band and Jonathan Gerafi states 
We have reviewed equity research reports issued in 2013 for eight leading companies in copyright-intensive industries: two software firms (Microsoft and Adobe); two publishers (Pearson and Reed Elsevier); the owners of two major motion picture studios (Disney and Viacom, owner of Paramount); and the owners of two major record labels (Sony, owner of Sony Music Entertainment, and Vivendi, owner of Universal Music Group).
We found that the overwhelming majority of the equity research reports did not mention copyright infringement as a possible risk factor. None of the 14 reports for Reed Elsevier and 18 reports for Pearson identified copyright infringement as a risk factor. Only 13% of the 15 reports for Sony and 22% of the 23 reports for Vivendi mentioned copyright infringement as a potential risk. Just 8% of the 26 reports for Viacom and 27% of the 26 reports for Disney referred to copyright infringement as a risk factor. 26% of the 19 reports concerning Adobe and 41% of the 27 reports concerning Microsoft identified copyright infringement as a risk factor. Cumulatively, only 19% (32) of the 168 reports referred to copyright infringement as a possible risk; 81% did not.
The vast majority of the reports written by sophisticated analysts simply do not consider copyright infringement a significant enough threat to the subject companies’ financial health to merit mention to potential investors. If the analysts with expertise in these industries are not concerned about the possible impact of copyright infringement, perhaps policymakers should not be either.

24 August 2014

Wolves

The Massachusetts Court of Appeals has ordered Misha Defonseca - famous for the deeply implausible 1997 Holocaust memoir - to forfeit her share of a US$32.4 million judgment that she won from her publisher Mt Ivy Press and the publisher's principal, Jane Daniel, in 2005.

Defonseca and ghostwriter Vera Lee were awarded the money in a 2001 Middlesex Superior Court judgment regarding rights: the ghostwriter sued Daniel (arguing that her rights as coauthor had been violated) and Defonseca alleged that the publisher hid profits in offshore corporate accounts and broke promises to publicise the book. The jury in that case awarded US$7.5m in damages to Defonseca and US$3.3m to Lee. The judge tripled the damages, to nearly US$10m for Lee and US$22.5m for Defonseca, because of the allegedly egregious conduct. The jury also awarded rights in the book to Defonseca, who sold it to several European publishers. It became a film in France.

Daniel responded by research into the truth of Defonseca's tale. As I've discussed elsewhere in talking about identity crime, the egregious exploitation by Defonseca of the Holocaust was bizarre and deeply repugnant. Adoption by and long-distance travel with a pack of wolves?

Daniel determined that Monica Ernestine Josephine De Wael (Defonseca's real name) was enrolled in a Brussels school in 1943 instead of traipsing around Europe with her furry friends. She wasn't Jewish. There were no wolves. There were no 3,000km journeys through the snow.

On the basis of the research Daniel and Mt. Ivy sought to have Defonseca's judgment vacated. They were initially unsuccessful, with the Court noting that action was out of time. In 2010 the Massachusetts Court of Appeals decided that the publishers had a case, commenting that the plaintiffs "have alleged an extraordinary fraud that touched every part of Defonseca's case against them and resulted in a huge verdict".

Defonseca appealed, arguing that even though her story had been proven false, she believed it was true during the book-publication process. Belief, it appears, is everything. "This story is mine. It is not actually reality, but my reality, my way of surviving". The same might also have been said by Mortenson, Frey, Wilkomirski, Armstrong and other memoirists.

In affirming the 2010 judgment the Massachusetts Court of Appeals commented that
Here, we express no opinion as to whether Defonseca's belief in the veracity of her story was reasonable. However, we agree with the second motion judge that, whether Defonseca's belief was reasonable or not, the introduction in evidence of the actual facts of her history at the trial underlying Mt. Ivy I could have made a significant difference in the jury's deliberations.
In Mt. Ivy Press, L.P., & another vs. Misha Defonseca the Court stated
This is the third, and hopefully the last, of a trilogy of cases that have played out before us. [FN3] Having twice before considered issues relating to the publication of the defendant's memoir of survival during the Holocaust (the details of which have now been revealed as false), we are now asked to decide whether it was proper for the court below to vacate a substantial judgment against the plaintiffs. We conclude that it was.
Facts.
In 1995, Misha Defonseca entered into an agreement with plaintiff Jane Daniel and her company, Mt. Ivy Press, L.P. (Mt. Ivy), to publish a memoir of her experiences in Europe during the Holocaust. Entitled Misha: A Mémoire of the Holocaust Years, the work told the harrowing story of Defonseca's survival as a young girl during the Holocaust "thanks to her strong will and guile as well as, incredibly, the aid of a pack of wolves, who 'adopted' and protected her, providing food, companionship, and affection." The story even included her killing a Nazi soldier.  Mt. Ivy I, 63 Mass.App.Ct. at 539. Since English was not Defonseca's native language, she was paired with a ghostwriter, Vera Lee, to assist in the writing of the book. See id. at 540.
Throughout the publication process, Mt. Ivy and its principal, Jane Daniel, engaged in many highly improper representations and activities which need not be detailed here. See Mt. Ivy I. Suffice it to say that the improprieties resulted in a jury verdict against Daniel and Mt. Ivy in favor of Defonseca in the amount of $7.5 million, and for Lee in the amount of $3.3 million. The trial judge found for Lee and Defonseca on their G.L. c. 93A claims, and trebled the damages, resulting in judgments of $9.9 million for Lee and $22.5 million for Defonseca. See Mt. Ivy I, 63 Mass.App.Ct. at 546. This court affirmed the judgments. Id. at 562.
Following our decision in Mt. Ivy I, in a saga also worthy of a book or movie, Daniel doggedly pursued the question whether, in fact, Defonseca's tale was true.  Defonseca had claimed to have no knowledge of her true name, believing that she was the daughter of a Jewish couple named Reuven and Gerusha (she did not know their surname), and that she had been assigned the identity of Monique De Wael to protect her from the Nazis. Against this backdrop, Daniel pursued her inquiries. 
Among other efforts, Daniel secured the discovery assembled by her former attorneys. While sifting through the various documents, she came upon what appeared to be an innocent bank record. Startlingly, the document contained information, provided by Defonseca to the bank, indicating her date of birth, place of birth, and her mother's maiden name.
Armed with this information, Daniel expanded her search, seeking Defonseca's official records in Belgium. Stymied by the country's privacy regulations, Daniel contacted a genealogist in Belgium who investigated Catholic baptismal records in Etterbeek. Information was discovered corroborating that found in the bank record.
With smoking gun in hand, Daniel returned to court to right what she perceived to be Defonseca's wrong. Daniel and Mt. Ivy filed an independent action under rule 60(b), arguing that the hefty judgments be vacated. The plaintiffs met with defeat. In the trial court, the motion judge (first motion judge) dismissed the claim for failure to show "extraordinary circumstances" that might warrant relief under rule 60(b)(6).  See Mt. Ivy II, 78 Mass.App.Ct. at 345, and cases cited. The plaintiffs appealed, and the case returned to our court, where their fortunes partially turned.
In Mt. Ivy II, we reversed the judgment insofar as it dismissed the claim against Defonseca, observing that "[Daniel and Mt. Ivy] have alleged an extraordinary fraud that touched every part of Defonseca's case against them and resulted in a huge verdict. It is true, as [Defonseca] point[s] out, that the book's authenticity was not the central issue at trial. Despite this, it is difficult to imagine that this information, had it been known to Daniel and Mt. Ivy, would not have provided a meritorious defense to at least some of the claims, especially those claims based on the contract.... It is equally implausible to suggest that the information, if it had been presented to the jury, would not have affected the substantial rights of the parties." Mt. Ivy II, 78 Mass.App.Ct. at 348 (internal quotation marks and citations omitted). 
Thereafter, Daniel and Defonseca engaged in discovery proceedings in Superior Court, and in July, 2012, a judge of that court (second motion judge) allowed the plaintiffs' motion for summary judgment on their complaint for rule 60(b) relief, vacating the underlying judgment for Defonseca.  Before us, Defonseca appeals, claiming that the second motion judge erred in allowing the plaintiffs' motion for summary judgment on their independent action for rule 60(b) relief. ....
The present case is unique. The falsity of the story is undisputed. The summary judgment materials in the record appendix establish that Defonseca was born Monica Ernestine Josephine De Wael, on May 12, 1937, in Etterbeek, Belgium, and was baptized on May 19, 1937. See note 8, supra.
Under oath, Defonseca averred that, notwithstanding her present understanding that her story was false, she believed throughout the book production process and trial underlying Mt. Ivy I that her story was true; her parents were in fact taken away when she was four years old and murdered in Nazi concentration camps;  and, last, she believed herself to be a Jew, and in fact joined a temple and was bat mizvahed after she emigrated to the United States.
The book contract between Defonseca and Mt. Ivy provided: "The Author [Defonseca] represents and warrants ... that ... with respect to the Work as submitted by the Author, ... (vii) all statements of fact are true or based upon reasonable belief." Here, we express no opinion as to whether Defonseca's belief in the veracity of her story was "reasonable."  We also acknowledge the findings of the first motion judge in his memorandum on the rule 12(b)(6) motion, that the plaintiffs' conduct "is not made any less egregious because of what we now know." See note 9, supra. However, we agree with the second motion judge that, whether Defonseca's belief was reasonable or not, the introduction in evidence of the actual facts of her history at the trial underlying Mt. Ivy I could have made a significant difference in the jury's deliberations. See Mt. Ivy II, 78 Mass.App.Ct. at 348. The underlying judgment in Mt. Ivy I must therefore be vacated. 
Conclusion.
This case has had a legal life of over fifteen years.  All involved have been bloodied. Defonseca's story has been shown to be false. As for Daniel, she also has been shown to have acted highly inappropriately, as evidenced by the still valid multi-million dollar judgment against her in favor of Vera Lee, the one least blameworthy person in the entire affair. Hopefully the saga has now come to an end.

23 August 2014

VLRC Mental Impairment Act recommendations

The Victorian Law Reform Commission report on the Review of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 noted on the preceding post features the following recommendations
Improving the systemic operation of the CMIA - Addressing gaps in data on the operation of the CMIA
1 All courts in Victoria should make changes to their recording practices for criminal cases to ensure that issues, findings and outcomes in relation to unfitness to stand trial and the defence of mental impairment under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) are recorded and are capable of being analysed in a consistent way.
2 Victoria Police should make changes to the procedure for recording withdrawals due to issues of unfitness to stand trial or the defence of mental impairment to ensure more accurate measurement of the matters which do not proceed under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic).
General statutory principles
3 The Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) and the Children, Youth and Families Act 2005 (Vic) should be amended so that all relevant powers and functions under these Acts are exercised consistently with the following statutory principles: (a) proceedings should be conducted and, where appropriate and consistent with the rights of the accused, modified in a way that acknowledges the need for support and involves the people affected by the proceedings, including the accused, a family member or a victim of the offence (b) proceedings involving an accused who was a child at the time of the alleged offence should as far as possible be conducted in accordance with the specialised principles that apply to an accused in the Children’s Court (c) the need to protect the community (d) the need to recognise all people affected by an offence, including the accused, a family member or a victim of the offence, and (e) the principle of least restriction, that is that restrictions on a person’s freedom and personal autonomy must be kept to the minimum consistent with the safety of the community.
Statutory principles—a specialist approach to young people
4 The following additional statutory principles should be added to the Children, Youth and Families Act 2005 (Vic) to apply to all matters in the Children’s Court where unfitness or the defence of mental impairment is raised: (a) the need to strengthen and preserve the relationship between the child and the child’s family (b) the desirability of allowing the child to live at home (c) the desirability of allowing the education, training or employment of the child to continue without interruption or disturbance, and (d) the need to minimise stigma to the child resulting from a court determination.
5 Part 1.3 of the Children, Youth and Families Act 2005 (Vic) should be amended to provide that the best interests principles in section 10 and decision-making principles in sections 11 and 12 apply to matters in the Children’s Court where unfitness or the defence of mental impairment is raised.
A statutory principle and measures to address unreasonable delay
6 The Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) and the Children, Youth and Families Act 2005 (Vic) should be amended to reflect the principle that unreasonable delay is to be avoided and particular consideration is to be given to prioritising matters involving unfitness to stand trial and the defence of mental impairment where: (a) the accused is a child or was a child at the time of the alleged offence (b) unreasonable delay would be inconsistent with the accused’s rights, or (c) to support therapeutic outcomes for the accused, victims and family members.
7 The jurisdiction of the Magistrates’ Court and the Children’s Court over matters involving unfitness to stand trial and the defence of mental impairment should be extended within the current respective criminal jurisdictions of each court. The extension of jurisdiction should be provided through amendments to sections 4 and 5 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) and by the recommendations made in Chapters 5 and 6.
8 The Victorian Government should establish working groups as part of any implementation of the recommendations in Chapters 5 and 6 regarding the application of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) in the Magistrates’ Court and Children’s Court. A separate working group should be established for each court with representation from individuals and organisations with expertise in adult and youth justice, forensic mental health and forensic disability.
9 Victorian courts should consider current approaches to listing matters under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) and consider how unreasonable delay can be avoided by the adoption of new listing practices at a number of key stages, including: (a) first hearing of matters after committal from the Magistrates’ Court or Children’s Court (b) investigations of unfitness to stand trial (c) special hearings following a permanent finding of unfitness to stand trial (d) matters involving children and young people, and (e) matters involving people who are not eligible to be placed in an ‘appropriate place’ within the meaning of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic). Any new listing practices that are adopted should be supported by a relevant practice note or practice direction.
Education, training and awareness
10 Victoria Legal Aid should develop training and education requirements for lawyers acting in matters under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) and the equivalent provisions in the Children, Youth and Families Act 2005 (Vic). These requirements should be included as a pre-condition for entry into the Victoria Legal Aid Indictable Crime Panel and equivalent panels in matters in the Magistrates’ Court and Children’s Court.
11 The Law Institute of Victoria, in collaboration with the Victorian Bar, should develop practice information to provide guidance for lawyers acting in criminal matters involving accused with a mental illness, intellectual disability or other cognitive impairment.
12 Victoria Police should: (a) develop a set of prosecutorial guidelines that are consistent with the underlying principles of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) to assist police prosecutors in their prosecution of matters under the Act, and (b) provide education and training for police prosecutors on prosecuting Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) matters in the Magistrates’ Court and Children’s Court.
13 The Judicial College of Victoria should develop and deliver judicial education for judges and magistrates on: (a) any new statutory provisions and processes that are introduced under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) and the Children, Youth and Families Act 2005 (Vic) (b) the best practice management of proceedings involving a person with a mental illness, intellectual disability or other cognitive impairment (c) how the needs of people with a mental illness, intellectual disability or other cognitive impairment can be identified and appropriately met, including by modifications to court procedure and the use of appropriate communication methods, and (d) information on clinical practice in the mental health and disability sectors, including the services that are available to people who may be subject to the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic).
Review following implementation of recommendations
14 The Victorian Government should review the operation of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) 24 months after implementation of any major recommendations.
Reframing the test for unfitness to stand trial - The new test for unfitness to stand trial
15 Section 6(1) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) should be amended to provide that a person is unfit to stand trial for an offence if, because the person’s mental processes are disordered or impaired, the person is or, at some time during the hearing, will be: (a) unable to understand the nature of the charge (b) unable to understand the actual significance of entering a plea to the charge (c) unable to enter a plea to the charge (d) unable to understand the nature of the hearing (that it is an inquiry as to whether the person committed the offence) (e) unable to follow the course of the hearing (f) unable to understand the substantial effect of any evidence that may be given in support of the prosecution (g) unable to decide whether to give evidence in support of his or her case (h) unable to give evidence in support of his or her case, if he or she wishes to do so, or (i) unable to communicate meaningful instructions to his or her legal practitioner. Adapting the test when the accused wishes to plead guilty
16 The Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) should be amended to provide that: (a) notwithstanding Recommendation 15, a person whose mental processes are disordered or impaired may enter a guilty plea to the charge if the person is: (i) able to understand the nature of the charge (ii) able to understand the actual significance of entering a plea of guilty to the charge (that it will waive the person’s right to a hearing and the opportunity to contest the charge and the consequences in terms of conviction and sentence) (iii) able to enter a plea to the charge (iv) able to understand the nature of the hearing if a plea of not guilty is entered (that it is an inquiry as to whether the person committed the offence) (v) able to follow the course of the hearing that would follow if a plea of guilty was entered, and (vi) able to communicate meaningful instructions to his or her legal practitioner regarding the decision to plead guilty. (b) paragraph (a) does not apply if the accused is not legally represented.
Applying the test to young people
17 Section 6 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) should be amended to add a requirement, separate to the criteria in section 6(1), that in determining whether a young person (a person who at the time of the hearing is under 21 years of age) is unfit to stand trial, the court must consider the developmental stage of that person.
Optimising fitness to stand trial—in-court support measures
18 Section 6 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) should be amended to add a requirement, separate to the criteria in section 6(1), that in determining whether a person is unfit to stand trial, the court must consider the extent to which modifications can be made to the hearing process to assist the accused to become fit to stand trial. Modifications include: (a) whether a support person can assist the person’s understanding of the trial (b) whether more appropriate communication methods can be used in court, and (c) whether court procedure can be appropriately modified.
19 To support Recommendation 18, there should be more support measures available in the court process to enable a court to modify proceedings and to assist an accused to become fit to participate in the hearing. For example: (a) the introduction of a formal support person scheme, similar to intermediary schemes that operate in other jurisdictions, and (b) the development and use of practice notes or practice directions in the Supreme Court, County Court, Magistrates’ Court and Children’s Court to promote the use of support measures for accused with a mental illness, intellectual disability or other cognitive impairment in court.
Optimising fitness to stand trial—education
20 The Victorian Government should consider introducing an education program to enhance the ability of accused adults and accused young people to become fit to stand trial.
Optimising fitness to stand trial—treatment and services
21 The following amendments should be made to the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic): (a) Section 14(2)(b) should be amended so that the judge must only proceed to hold a special hearing under Part 3 within three months if satisfied that the accused, having regard to the education, treatment and services received, is not fit to stand trial. (b) Section 13(2) should be amended so that the report on the mental condition of the accused should contain information on: (i) the education, treatment and services recommended in any report on the accused’s unfitness to stand trial to assist the accused in becoming fit to stand trial, and (ii) the education, treatment and services the accused received during the period of adjournment. (c) Section 13(3)(c) should be amended so that the judge must be satisfied that the accused, having regard to the education, treatment and services received, will not become fit to stand trial by the end of the period of 12 months after the finding of unfitness.
Assessment of unfitness by experts—processes for applying the new tests and improvements
22 The following process should be followed to support the Commission’s recommendations on unfitness to stand trial: (a) In an examination of an accused by a registered medical practitioner or a registered psychologist on whether the accused is unfit to stand trial under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic), the assessment should include: (i) whether the accused is unfit to stand trial (ii) if unfit to stand trial, whether or not the accused is likely to become fit to stand trial within a particular period and any measures (education, treatment or services) that would assist the accused to become fit to stand trial, and (iii) if unfit to stand trial, the extent to which modifications can be made to the hearing process to assist the accused to become fit to stand trial. (b) If requested, the assessment should also consider whether the accused is fit to plead guilty. (c) As part of any assessment of unfitness to stand trial of a young person, the assessment should consider the developmental stage of the person. (d) Upon consideration of the assessment, the court may proceed to determine whether the accused is unfit to stand trial, having regard to the extent to which modifications can appropriately be made to the hearing process to assist the accused to become fit to stand trial. (e) If the accused is found fit to stand trial, the hearing should commence or resume in accordance with usual criminal procedures and with any appropriate modifications recommended in the assessment to assist the accused to become fit to stand trial. (f) If the accused is found unfit to stand trial, the court may adjourn the matter for a period specified under section 11(4)(b) to allow the accused to become fit to stand trial, having regard to any measures recommended (education, treatment or services) that would assist the accused to become fit to stand trial. (g) Following the period specified under section 11(4)(b) or in support of an application for an abridgment of the period under section 13 (as amended by Recommendation 21(b)), another examination of the accused by a registered medical practitioner or a registered psychologist should be conducted on the accused’s unfitness to stand trial. (h) Any request or order for an assessment on whether the accused is unfit to stand trial should specify the matters the registered medical practitioner or the registered psychologist should consider.
23 The Victorian Government should establish an expert advisory group to determine: (a) who should conduct assessments of unfitness to stand trial (b) whether the group of people identified under paragraph (a) should be registered or accredited by a professional body, and if so, the requirements for registration or accreditation (c) whether guidelines should be developed or experts should undergo training on applying the test for unfitness to stand trial, and if so, the content of the guidelines or training (d) whether assessments should be standardised to a greater extent and the extent to which these should be standardised (e) whether legislative or other requirements should be introduced to require the application of the process in Recommendation 22, and (f) how to promote better communication techniques in the conduct of assessments.
Clarifying the law on the defence of mental impairment Introducing a statutory definition of mental impairment
24 The Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) should be amended to insert a provision in section 20 of the Act that defines a ‘mental impairment’ for the purposes of the defence as a condition that ‘includes, but is not limited to, mental illness, intellectual disability and cognitive impairment’. The proposed definition of mental impairment should not include any self-induced temporary conditions resulting from the effects of ingesting substances. The proposed definition should include self-induced conditions that exist independently of the effect of ingesting substances.
Clarifying the test for the defence
25 Section 20(1)(b) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) should be amended to replace ‘that is, he or she could not reason with a moderate degree of sense and composure about whether the conduct, as perceived by reasonable people, was wrong’ with ‘that is, he or she did not have the capacity to think rationally about whether the conduct, as perceived by reasonable people, was wrong’.
Application of the defence in the Children’s Court
26 Recommendations 24 and 25 to introduce a definition of mental impairment and make changes to the second limb of the mental impairment defence in the higher courts should apply in the Children’s Court by adding equivalent provisions into the Children, Youth and Families Act 2005 (Vic).
Application of the CMIA in the Magistrates’ Court - Extending the jurisdiction of the Magistrates’ Court
27 Parts 1–6 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) should be amended to provide for the Magistrates’ Court to: (a) determine whether a person is unfit to stand trial (b) conduct special hearings after a finding of unfitness, and (c) make orders following a finding that the person is not criminally responsible because of mental impairment or that the person’s conduct has been proved on the evidence available (but the person is unfit to stand trial).
Model for determining unfitness in the Magistrates’ Court
28 New provisions should be inserted into the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) to create the following process if the question of unfitness arises in a proceeding in the Magistrates’ Court for a summary offence or an indictable offence triable summarily: (a) In the Magistrates’ Court, the question of the accused’s unfitness to stand trial is to be determined on the balance of probabilities by a magistrate. (b) When the question of unfitness to stand trial is raised during the course of proceedings in the summary stream (or where summary jurisdiction has been granted), the magistrate must determine whether there is a real and substantial question as to the unfitness of the accused. (c) If the magistrate determines there is a real and substantial question as to the unfitness of the accused, the magistrate must either: (i) conduct an investigation into the unfitness of the accused to stand trial within three months from the magistrate’s determination that there is a real and substantial question as to unfitness, or (ii) make an order under paragraph (m). (d) If the magistrate finds the accused unfit to stand trial, the magistrate must either: (i) proceed to hold a special hearing of the charge within three months, or (ii) adjourn the matter under paragraph (l), or (iii) make an order under paragraph (m). (e) The special hearing should be conducted as nearly as possible as if it were a summary hearing. (f) If the magistrate finds the accused fit to stand trial before the special hearing, the proceeding should be resumed in accordance with usual criminal procedures. (g) For the purposes of paragraphs (b) and (c), if the magistrate considers that it is in the interests of justice to do so, the magistrate may order that the accused undergo an examination by a registered medical practitioner or registered psychologist and that the results of the examination be put before the court. (h) Notwithstanding paragraphs (a)–(f), if the question of the accused’s unfitness to stand trial arises in a matter in the committal stream, the committal proceeding must be completed.  (i) If the accused is committed for trial, the question of the accused’s unfitness to stand trial must be reserved for consideration by the trial judge. (j) If the accused is not committed for trial, and the matter is to be heard summarily, the question of the accused’s unfitness must be investigated by the magistrate in accordance with paragraphs (a)–(f). (k) At any time before the investigation into unfitness to stand trial, the magistrate may extend the three-month period in paragraph (c) for a further period not exceeding three months. The three-month period may be extended more than once, provided the magistrate conducts the unfitness investigation within 12 months of the determination that there is a real and substantial question as to the unfitness of the accused. (l) If the magistrate finds the accused unfit to stand trial but considers that the accused is likely to become fit within a period of 12 months, the magistrate may adjourn the matter for the period by the end of which the accused is likely to be fit to stand trial. The magistrate may extend the period of adjournment for a further period, but the total period of adjournment from the first finding of unfitness must not exceed 12 months. (m) At any time during the course of proceedings in the summary stream (or where summary jurisdiction has been granted), after the magistrate determines there is a real and substantial question as to the unfitness of the accused, and before the special hearing, the magistrate may discharge the accused with or without conditions if the magistrate considers: (i) that the accused does not pose an unacceptable risk of causing physical or psychological harm to another person or other people generally as a result of the discharge, and (ii) the accused is receiving treatment, support or services in the community.
Expanding the Mental Health Court Liaison Service (MHCLS)
29 The Mental Health Court Liaison Service (MHCLS) should be extended and this extension resourced. The extension of the service should include the provision of disability liaison services, in addition to mental health liaison services.
Providing a power to make orders in the Magistrates’ Court
30 Section 5(2) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) should be amended to provide that if the Magistrates’ Court finds a person not criminally responsible because of mental impairment or that conduct has been proved on the evidence available (but the accused is unfit to stand trial), the Magistrates’ Court may: (a) declare the person liable to supervision, or (b) order that the person be released unconditionally. In deciding whether to declare the person liable to supervision or to unconditionally release the person, the Magistrates’ Court must have regard to whether the person would pose an unacceptable risk of causing physical or psychological harm to another person or other people generally.
31 The power to declare a person liable to supervision and make orders for supervision or to unconditionally release a person following a finding under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) should apply to both summary offences and indictable offences triable summarily where summary jurisdiction has been granted.
32 Section 5(2) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) should be amended to provide that if the Magistrates’ Court declares that a person is liable to supervision: (a) the court must make either of the following supervision orders in respect of the person: (i) a custodial supervision order, or (ii) a non-custodial supervision order; and (b) the court must set a fixed term of the supervision order of two years, at the end of which the supervision order lapses.
Review of supervision orders
33 The Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) should be amended to provide: (a) The person subject to the order or the person having the custody, care, control or supervision of that person has the right to apply to the court for a variation of the order (in the case of a custodial supervision order) or a variation or revocation of the order (in the case of a non-custodial supervision order) during the term set by the Magistrates’ Court. (b) In a review conducted under paragraph (a), the court must either: (i) confirm the order (ii) vary the conditions of the order (iii) for a custodial supervision order, vary the order to a non-custodial supervision order, or (iv) for a non-custodial supervision order, vary the order to a custodial supervision order or revoke the order.
Factors relevant to decision making for supervision orders
34 Part 6 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic), including sections 40, 41 and 42, should apply to the Magistrates’ Court’s consideration of whether to make, vary or revoke a supervision order. Granting and consenting to summary jurisdiction
35 Section 29(2) of the Criminal Procedure Act 2009 (Vic) should be amended to introduce a requirement that in deciding whether the Magistrates’ Court may hear and determine summarily a charge for an indictable offence, if there is a real and substantial question of unfitness to stand trial, the court is to have regard to the statement of principles for decision makers in Recommendation 3.
36 Section 29 of the Criminal Procedure Act 2009 (Vic) should be amended so that the Magistrates’ Court may waive the requirement that an accused consent to the summary hearing of a charge for an indictable offence if satisfied that: (a) the accused is unable to consent to a summary hearing or the legal practitioner appearing for the accused is unable to obtain instructions on whether the accused consents to a summary hearing, and (b) there is a real and substantial question of the accused’s unfitness.
Committals—criteria and process
37 Section 141 of the Criminal Procedure Act 2009 (Vic) should be amended to require that if there is a real and substantial question of unfitness to stand trial, the court is to have regard to the statement of principles for decision makers in Recommendation 3 in conducting committal proceedings.
38 If there is a real and substantial question as to the accused’s unfitness to stand trial in a committal proceeding, the committal proceeding must be completed without the accused entering a plea. The committal proceeding must otherwise be completed in accordance with Chapter 4 of the Criminal Procedure Act 2009 (Vic).
A specialised approach to the application of the CMIA in the Children’s Court - Extending the jurisdiction of the Children’s Court
39 The Children, Youth and Families Act 2005 (Vic) should be amended to provide for the Children’s Court to: (a) determine whether a young person is unfit to stand trial (b) conduct special hearings after a finding of unfitness, and (c) make orders following a finding that the young person is not criminally responsible because of mental impairment or that the young person’s conduct has been proved on the evidence available (but the young person is unfit to stand trial). The amendments should be provided for in a new part in Chapter 5 of the Children, Youth and Families Act 2005 (Vic).
40 Recommendation 39 should be implemented in conjunction with Recommendation 49 to establish a youth forensic facility in Victoria to provide for the assessment, treatment and supervision of young people in relation to unfitness to stand trial and the defence of mental impairment.
Preserving the criminal jurisdiction of the Children’s Court
41 The current criminal jurisdiction of the Children’s Court should apply, so that all summary and indictable matters currently within the jurisdiction of the Children’s Court should continue to be heard in the Children’s Court where unfitness to stand trial or the defence of mental impairment is raised.
42 Any matter over which the Children’s Court has jurisdiction where unfitness to stand trial or the defence of mental impairment is raised should be transferred to and dealt with in the Melbourne Children’s Court.
43 The exceptional circumstances criteria in section 356(3) of the Children, Youth and Families Act 2005 (Vic) should include consideration of whether a matter should remain in the Children’s Court jurisdiction where ‘there is a real and substantial question of unfitness to stand trial’.
A diversionary approach for young people
44 The Children, Youth and Families Act 2005 (Vic) should be amended to require that in matters in the Children’s Court involving young people where unfitness or the defence of mental impairment is raised there are presumptions in favour of: (a) diverting the young person from the criminal justice system, and (b) the young person’s treatment and support taking place in the community.
Model for determining unfitness in the Children’s Court
45 New provisions should be inserted into the Children, Youth and Families Act 2005 (Vic) to create the following process to apply if the question of unfitness arises in a proceeding in the Children’s Court for a summary offence or an indictable offence within the court’s jurisdiction: (a) In the Children’s Court, the question of the accused’s unfitness to stand trial is to be determined on the balance of probabilities by the President or a magistrate. (b) When the question of unfitness to stand trial is raised during the course of proceedings for an offence within the jurisdiction of the Children’s Court, the President or a magistrate must determine whether there is a real and substantial question as to the unfitness of the accused. (c) If the President or a magistrate determines that there is a real and substantial question as to the unfitness of the accused, they must either: (i) conduct an investigation into the unfitness of the accused to stand trial, without unnecessary delay and as soon as is practicably possible within three months from the determination that there is a real and substantial question as to unfitness, or (ii) make an order under paragraph (f). (d) Upon determining there is a real and substantial question of unfitness to stand trial and for the purposes of paragraphs (c) and (e), if the President or magistrate considers it is in the interests of justice to do so, they may make an ‘assessment order’ for the accused to undergo a multi-disciplinary examination by accredited clinicians, at least one of whom must be a registered medical practitioner, as to: (i) whether the accused is unfit to stand trial (ii) whether the accused is likely to become fit within a particular period and what measures (education or treatment) would assist to restore the accused’s fitness in that period, and (iii) whether the accused is suitable for a voluntary referral to a case worker for treatment, services and support. (e) Upon consideration of the assessment order, the President or a magistrate must: (i) proceed to determine unfitness (ii) adjourn the matter for a specified period to optimise the accused’s fitness (with recommended measures to optimise fitness), or (iii) adjourn the matter for a specified period for a voluntary referral to an established case worker program. (f) At any time during the course of proceedings, after the President or a magistrate determines there is a real and substantial question as to the unfitness of the accused, and before the special hearing, the President or magistrate may discharge the accused with or without conditions if they consider: (i) that the accused does not pose an unacceptable risk of causing physical or psychological harm to another person or other people generally as a result of the discharge, and (ii) the accused is receiving treatment, support or services in the community. (g) For the purposes of paragraph (e), the Children’s Court may adjourn a matter as many times as required within a 12-month period. In considering adjournments, delay to the accused should be minimised and the court should take a proactive approach to judicial management in the specialist jurisdiction of the Children’s Court. The overall period of adjournments must not exceed 12 months. (h) If the Children’s Court finds an accused fit to stand trial before the special hearing, the proceedings should be resumed in accordance with the usual criminal procedures. (i) If the Children’s Court finds a person unfit to stand trial, it must either: (i) proceed to hold a special hearing as soon as practicable within a period of three months (ii) adjourn the matter for a specified period for a voluntary referral to an established case worker program, or (iii) adjourn the matter for a referral for a Therapeutic Treatment Order. (j) A special hearing must be conducted as nearly as possible as if it were a criminal procedure in the Children’s Court, including the relevant provisions in section 16(2) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic). (k) Notwithstanding paragraphs (a)–(j), if the question of an accused’s unfitness to stand trial arises in a matter that involves an offence that is excluded from the Children’s Court jurisdiction or in a committal proceeding, the committal proceeding must be completed. (l) If the accused is committed for trial, the question of the accused’s unfitness must be reserved for consideration by the trial judge. (m) If the accused is not committed for trial, and the matter is to be heard in the Children’s Court, the question of the accused’s unfitness must be investigated by the President or a magistrate in accordance with paragraphs (a)–(j).
46 To support the assessment order, a case worker program should be implemented and resourced.
Conduct of proceedings involving young people in the higher courts
47 The Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) should be amended to specify that as far as possible, proceedings in the Magistrates’ Court, County Court and Supreme Court involving young people who raise unfitness and the defence of mental impairment should be conducted in accordance with applicable principles and approaches in the Children, Youth and Families Act 2005 (Vic).
A new ‘therapeutic supervision order’ regime in the Children’s Court
48 New provisions should be inserted into the Children, Youth and Families Act 2005 (Vic) to create the following regime for the imposition of orders: (a) Upon a finding that an accused is not criminally responsible because of mental impairment or that conduct has been proved on the evidence available (but the accused is unfit to stand trial) in the Children’s Court, the court must: (i) declare the young person liable to supervision, or (ii) order that the young person be released unconditionally. (b) A young person is to be unconditionally released unless the court is satisfied that they pose an unacceptable risk of causing physical or psychological harm to another person or other people generally. (c) If the court declares a young person to be liable for supervision, it must impose a ‘therapeutic supervision order’. The court must make either: (i) a custodial therapeutic supervision order, or (ii) a non-custodial therapeutic supervision order. (d) If the court imposes a therapeutic supervision order, it must set a fixed term of the therapeutic supervision order of two years with a progress review to be set for every six months. The order can be revoked at any time and there should be a presumption that the order will be made less restrictive at each review. (e) The person subject to the order or the person having the custody, care, control or supervision of that person may apply to the court for a variation of the order (in the case of a custodial therapeutic supervision order) or a variation or revocation of the order (in the case of a non-custodial therapeutic supervision order) during the term set by the Children’s Court. (f) On application under paragraph (e), the court must either: (i) confirm the order (ii) vary the conditions of the order (iii) for a custodial therapeutic supervision order, vary the order to a noncustodial therapeutic supervision order, or revoke the order, or (iv) for a non-custodial therapeutic supervision order, vary the order to a custodial therapeutic supervision order, or revoke the order. (g) Part 6 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic), including sections 40, 41 and 42, should apply to the Children’s Court’s consideration of whether to act on an assessment order or to make, vary or revoke a therapeutic supervision order. Developing a forensic facility and model of care for young people
49 A multi-disciplinary youth forensic facility should be established in Victoria.
50 The Victorian Government should commission a multi-disciplinary team to develop a model of care to identify and develop the requirements for service delivery, supervision arrangements, management and operation of the youth forensic facility.
Juries under the CMIA in the higher courts - Unfitness to be determined by a judge or a magistrate
51 Section 7(3) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) should be amended to provide that the question of a person’s fitness to stand trial is to be determined on the balance of probabilities by a judge or a magistrate. Defence of mental impairment to be determined by a jury
52 A jury should determine criminal responsibility in all criminal trials in the higher courts under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic). Section 21(4) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) should be abolished.
53 A jury should determine the criminal responsibility of all people found unfit to stand trial in the higher courts under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic). If Recommendation 52 to abolish section 21(4) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) is not adopted, the process provided for in that section should not be available to determine the criminal responsibility of a person found unfit.
Directions to the jury—findings in special hearings
54 Part 3 of the Jury Directions Act 2013 (Vic) should apply to the judge’s obligation to direct the jury on the findings that are available in special hearings under section 16(3)(d) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic).
Directions to the jury—approach to the elements of an offence and the defence of mental impairment
55 The Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) should be amended to provide the following approach to directing the jury on how to approach the elements of an offence when the defence of mental impairment is in issue: (a) Threshold question for the judge: is the fault element unable to be established because evidence of the accused’s mental condition is capable of demonstrating that the accused did not know the nature and quality of their conduct? (b) If the answer to the threshold question is yes, Direction 1 should be given to the jury as follows: (i) The physical elements of the offence must be proved beyond reasonable doubt. (ii) If they cannot be so proved, the accused should be acquitted. (iii) If the physical elements of the offence are proved beyond reasonable doubt, the jury should be directed to consider the defence of mental impairment. (c) If the answer to the threshold question is no, Direction 2 should be given to the jury as follows: (i) All elements of the offence must be proved beyond reasonable doubt. (ii) The accused is presumed to be of sound mind; however, evidence of a mental condition can be taken into account in considering whether the fault element of the offence is proved beyond reasonable doubt. li (iii) If they cannot be so proved, the accused should be acquitted. (iv) If all elements of the offence are proved, the jury should be directed to consider the defence of mental impairment.
Directions to the jury—legal consequences of a mental impairment finding
56 The requirements of a judge in directing a jury on the legal consequences of a mental impairment finding should be specified in section 22(2)(a) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) and provide that in explaining the legal consequences of a finding of not criminally responsible because of mental impairment, the judge: (a) must explain that the person may be made subject to an indefinite supervision order or unconditionally released (b) must explain that there is a process to be followed by the judge in deciding whether an accused is made liable to supervision or unconditionally released which includes the judge considering evidence on the risk to community safety and appropriate treatment in the particular case, and (c) must not otherwise indicate the probable or likely outcome in relation to the legal consequence of the finding, or convey any impression concerning the desirability, punitive features or public safety aspects of arriving at a particular verdict.
Rights and interests under the CMIA - Better support for and communication with victims and family members
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.
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. Improving access to advocacy services for people subject to supervision orders
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.
Responsibility for representing the community’s interests  
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.
Clarifying the purposes of and provisions relating to suppression orders
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.
Processes and findings under the CMIA in all courts - Power to remand in an appropriate place after a permanent finding of unfitness
65 The Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) should be amended to enable a judge or magistrate to make any order under section 12(2) of the Act, including remanding the accused in custody in an appropriate place for the period before the special hearing following a finding that the accused is unfit to stand trial and is not likely to become fit within 12 months.
Providing exceptions to the requirement that an accused attend a special hearing  
66 The Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) should be amended to: (a) enable a judge or magistrate to excuse an accused from attending a special hearing with the consent of both parties, and (b) provide that an accused may ‘attend’ a special hearing by audiovisual link, with the consent of both parties. Streamlining the hearing of multiple matters
67 The Criminal Procedure Act 2009 (Vic) should be amended to permit the court, with the consent of the accused and the prosecution, to make an order allowing: (a) a charge-sheet or indictment to contain charges for multiple matters in which the question of unfitness to stand trial has been raised, and (b) a charge-sheet or indictment to contain charges for multiple matters in which the issue of whether the defence of mental impairment is established is to be determined.  
Changing the names of findings
68 Section 17(1) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) should be amended to change the finding that the accused ‘committed the offence charged’ to a finding that the ‘conduct is proved on the evidence available’.
69 The Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) should be amended to change the finding that the accused is ‘not guilty of the offence because of mental impairment’ to a finding that the ‘conduct is proved but not criminally responsible because of mental impairment’.
Ensuring that information is provided to the court after a finding
70 The Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) should be amended to enable the court to adjourn a matter to obtain any reports necessary under section 40(2) or a certificate of available services under section 47 prior to a decision to declare that the person is liable to supervision or to order the person be released unconditionally under sections 18(4) or 23.
71 Section 41 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) should be amended so that reports on the mental condition of a person under that section can be prepared and filed prior to a decision to declare that the person is liable to supervision under sections 18(4) or 23.
72 The Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) should be amended so that the court need not consider the report on the mental condition of a person under section 41(1) and a report under section 40(2)(a) if the report under section 41(1) addresses the matters listed in section 40(2)(a). Extending the timeframe for preparing certificate of available services  
73 Section 47(4) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) should be amended to require the provision of a certificate of available services to the court within 30 days after receiving a request under section 47(1) or within such a longer period as the court allows.
Improving the process where a person is already subject to a supervision order
74 The Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) should be amended to enable a court to decline to impose a subsequent supervision order where a person is already subject to a supervision order. Approach to reviewing ancillary orders and consequences  
75 The Victorian Government should review the ancillary orders and consequences that may follow a finding under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) with the aim of clarifying the ancillary orders or consequences that should or should not be available following a finding under the Act. In conducting any such review, the following approach should be taken: (a) Ancillary orders and consequences following findings under the Act should, as far as possible, not be punitive in intention or effect and should be made where necessary for the safety of the community. (b) Ancillary orders and consequences following findings under the Act should not be mandatory or imposed automatically, but should instead be founded on the court’s discretion. lv (c) The ancillary orders and consequences that follow a finding that the ‘conduct is proved on the evidence available’ and a finding that the ‘conduct is proved but not criminally responsible because of mental impairment’ should be distinguished where appropriate.
Expanding rights of appeal against fitness findings
76 The Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) should be amended so that in a criminal proceeding in the County Court or the Trial Division of the Supreme Court, the accused may appeal to the Court of Appeal against: (a) any finding on fitness to stand trial, and (b) any finding on fitness to plead guilty.  
Allowing de novo appeals to the County Court from the Children’s Court and Magistrates’ Court  
77 The Criminal Procedure Act 2009 (Vic) should be amended so that an appeal to the County Court against a supervision order does not result in a stay of any supervision order imposed on the person.
78 The Criminal Procedure Act 2009 (Vic) should be amended so that a person may appeal to the County Court against: (a) a finding and supervision order made in the Magistrates’ Court under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) and in the Children’s Court, under the Children, Youth and Families Act 2005 (Vic), or (b) a supervision order made in the Magistrates’ Court under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) and in the Children’s Court, under the Children, Youth and Families Act 2005 (Vic).  
Improving the supervision, review and leave framework in the higher courts  - Retaining the judicial model of decision making  
79 The judicial model of decision making should be retained under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic). Transparency and continuity in leave decisions
80 Sections 40(1) and 54(4) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) should be amended to require the court and the Forensic Leave Panel respectively to have regard to any on-ground or off-ground leave the person has been granted and their compliance with the conditions of their leave when deciding whether to grant leave.
81 An education and training package should be developed for Forensic Leave Panel members that: (a) emphasises the importance of explaining each type of leave that has been granted or rejected and any variations in leave (b) emphasises the communication of the reasons why the Panel, as an independent body, has reached its decision to approve or reject the leave application   (c) encourages Panel members to provide suggestions on how the person can improve their likelihood of success in subsequent leave applications, and (d) ensures that Panel members inform the person of their right to request written reasons at the end of the hearing.
82 A review should be conducted of the processes of the Internal Leave Review Committee to consider whether they operate consistently with the principles that underlie the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic).
Retaining indefinite terms for supervision orders in the higher courts
83 There should be no change to the indefinite term of supervision orders imposed in the higher courts as provided in section 27 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic).
Replacement of nominal term system with a new system of five-year ’progress reviews’
84 The provisions in the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) relating to nominal terms in the higher courts should be repealed, and replaced by provisions to the effect that: (a) a supervision order is for an indefinite term and that the matter is to be brought back to the court at the end of every five years for a ‘progress review’ (b) the court must set a term of five years before the first progress review of a supervision order to run from the day the person was first made subject to the supervision order, and (c) the court that made the supervision order must conduct the first progress review of the order before the end of the five-year term and thereafter at intervals not exceeding five years for the duration of the order. Presumptions under the new system of ‘progress reviews’  
85 The Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) should be amended to introduce the following presumptions to apply at progress reviews of supervision orders: (a) the court must not vary a custodial supervision order to a non-custodial supervision order before the first progress review unless satisfied on the evidence available that the person would not pose an unacceptable risk of causing physical or psychological harm to another person or other people generally as a result of the variation (b) at the second progress review of a custodial supervision order and progress reviews thereafter, the court must vary the custodial supervision order to a non-custodial supervision order unless satisfied on the evidence available that the person would pose an unacceptable risk of causing physical or psychological harm to another person or other people generally as a result of the variation, and (c) at the second progress review of a non-custodial supervision order and progress reviews thereafter, the court must revoke the non-custodial supervision order unless satisfied on the evidence available that the person would pose an unacceptable risk of causing physical or psychological harm to another person or other people generally as a result of the revocation of the order.  
86 Section 35(3)(a)(i) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) should be amended to clarify that a custodial supervision order should not be varied to a non-custodial supervision order at a progress review unless the forensic patient or forensic resident has completed a period of at least 12 months extended leave.
A new test of ‘unacceptable risk’ for decision making
87 The Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) should be amended to require: (a) When making decisions, the relevant decision maker to: (i) for section 40(1)(c), consider whether the person would pose an unacceptable risk of causing physical or psychological harm to another person or other people generally because of his or her mental impairment (ii) for sections 50(3)(b), 54(2)(b), 54(3)(b), 57(2) and Schedule 3 clause 4, be satisfied that the person would not pose an unacceptable risk of causing physical or psychological harm to another person or other people generally (iii) for sections 55(1), 58(1), 58(4)(a) and 73F(5) be satisfied that the person would pose an unacceptable risk of causing physical or psychological harm to another person or other people generally, and (iv) for section 30(1)(b), have a reasonable belief that the person would pose an unacceptable risk of causing physical or psychological harm to another person or other people generally. (b) The court under section 40(1)(d) to consider the need to protect people from such risk.
88 The Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) should be amended to require that, in deciding whether to declare the person liable to supervision or to unconditionally release the person, the court is to have regard to whether the person poses an unacceptable risk of causing physical or psychological harm to another person or other people generally.  
89 References to the danger the person poses to themselves or the person’s safety in sections 40(1)(c), 54(2)(b), 54(3)(b), 55(1), 57(2), 58(1), 58(4)(a), 30(1)(b), 73F(5) and Schedule 3 clause 4 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) should be removed.
Additional factors relevant to decision making
90 Section 40(1) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) should be amended to require that, for the purpose of considering whether a less restrictive order is more appropriate, the court is to have regard to whether the person is receiving treatment or services under a civil order under the Mental Health Act 2014 (Vic) or the Disability Act 2006 (Vic), and the conditions of any such order.
91 Sections 40(1) and 54(4) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) should be amended to require the court and the Forensic Leave Panel respectively to have regard to the supervised person’s recovery or progress in terms of treatment progression and personal improvement.  
Increasing flexibility—extending and suspending leave  
92 The Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) should be amended so that: (a) A grant of special leave, on-ground leave or off-ground leave can be extended for the same period and subject to the same conditions by the authorised psychiatrist of the approved mental health service or the Secretary to the Department of Human Services. (b) The authorised psychiatrist for the approved mental health service or the Secretary to the Department of Human Services must provide the Forensic Leave Panel with a report of the person’s progress while on leave and their compliance with the conditions of their leave for each period for which leave is extended. (c) The Chief Psychiatrist may delegate the power to suspend a special leave of absence, on-ground leave or limited off-ground leave under section 55 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) to the authorised psychiatrist of the approved mental health service.
Increasing flexibility—leave conditions
93 Education and training for Forensic Leave Panel members in Recommendation 81 should include guidelines on making leave conditions sufficiently prescriptive so that they are consistent with the safety of the community but sufficiently flexible to not unduly restrict the person’s freedom or personal autonomy. Other improvements to leave processes  
94 The Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) should be amended to reflect that the applicant profile may be provided by an authorised psychiatrist at the Victorian Institute of Forensic Mental Health (Forensicare) or their delegate under section 54A(1)(a).
95 The Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) should be amended to clarify that a person whose leave is suspended under section 58, or a person on their behalf, may apply for special leave of absence.
Providing exceptions to the requirement that an accused attend a review hearing  
96 The following amendments should be made to the review provisions in the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) to provide that: (a) If a supervised order is being confirmed, the court may order the review hearing to be conducted on the papers with the consent of all parties. (b) The court may order that any person required to attend a review hearing attend via video link with the consent of all parties. (c) If the attendance of the supervised person before the court would be detrimental to the person’s health, the court may order that the person not attend the hearing or attend via video link with the consent of all parties.
Removing the three-year restriction on applying for a variation of a custodial supervision order
97 Section 31(2) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) should be abolished. 
Management of people subject to supervision orders - Models of care and accommodation needs for people with an intellectual disability or other cognitive impairment  
98 The Department of Human Services should commission a review of current forensic disability services to identify appropriate models of care and the accommodation needs of people with an intellectual disability or other cognitive impairment who are subject to supervision orders under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic). The review should include an analysis of the cost of any recommendations regarding appropriate models of care and accommodation needs.
Flexibility in responding to breaches of supervision orders  
99 The following amendments should be made to the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) to allow for greater flexibility in managing people who have breached the conditions of their non-custodial supervision order: (a) Section 29(4) should be amended to allow the court to adjourn an application under section 29(1) for variation of a supervision order for a period not exceeding 12 months where the court is satisfied by evidence on oath, whether orally or by affidavit, from the supervisor, the Department of Human Services or the Department of Health that, having regard to the person’s risk, a period of assessment and treatment is appropriate prior to consideration of the application to vary the non-custodial supervision order to a custodial supervision order. (b) Section 30(4) should be amended to create an exception to the requirement that a person detained under this section be released within 48 hours if an application has been made and a court has made an order adjourning the application to vary the supervision order. (c) Section 30 should be amended to provide a power for the authorised psychiatrist of the approved mental health service or the Secretary to the Department of Human Services to authorise the release of a person from detention following an application under section 29(1) and prior to the court hearing an application in section under 30(4).  
100 A new medium-secure forensic mental health facility should be established as an approved mental health service for adults with a mental illness who are subject to supervision orders under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic).  
101 The Department of Health and the Department of Human Services should develop workforce strategies to increase the capacity of the general mental health and disability sectors to undertake forensic mental health and disability work. Such strategies could include the development of guidelines on decision making in relation to supervision orders.
Police contact with people subject to supervision orders  
102 Victoria Police should add a flag to the ‘attendance module’ in the Law Enforcement Assistance Program (LEAP) database to enable data to be entered and accessed that will immediately notify a police officer that a person is subject to a supervision order under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic).
Improving the suitability of the system for people with an intellectual disability or other cognitive impairment  
103 Section 26 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) should be amended to require a court, when making a supervision order in respect of a person, to specify the department that is responsible for the person’s supervision.  
104 A requirement should be added to section 26 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) that the department which is specified as having responsibility for the person’s supervision must prepare a treatment plan for the person on the supervision order.  
105 Section 40(e) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) should be amended to require that the court have regard to ‘whether there are adequate resources available for treatment, support or services in the community’.  
106 The definition of ‘compulsory treatment’ in the Disability Act 2006 (Vic) should be amended to include people subject to a supervision order that designates the Secretary to the Department of Human Services as responsible for the person’s supervision.
Interstate transfer orders  
107 Sections 73D and 73E of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) should be amended to provide that: (a) the relevant Secretary has the power to make an order authorising the interstate transfer of a person, and (b) sections 73D(2)(a) and 73E(2)(a) allow either the Chief Psychiatrist or the Secretary of the Department of Human Services to certify that the transfer is of benefit to the person and that facilities and services are available.

VLRC Review of Crimes (Unfitness) Regime

The Victorian Law Reform Commission's report regarding its  Review of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 deals with legislation in Victoria that governs unfitness to stand trial and the defence of mental impairment — the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) (CMIA).

The report [PDF] considers legal and procedural issues in the application of the CMIA across all levels of criminal courts in Victoria and across criminal justice, mental health and disability sectors -
Part I—Introduction and systemic improvements to the CMIA—provides an overview of the CMIA and identifies the issues that affect its operation in a systemic way.
Part II—Legal concepts and criteria—examines the unfitness to stand trial criteria and the test for the defence of mental impairment, including how mental impairment is defined.
Part III—Application of the CMIA in Victorian courts—examines: • the limited application of the CMIA in the Magistrates’ Court and Children’s Court in Victoria • the involvement of the jury in hearings under the CMIA in the Supreme Court and County Court in Victoria and directions to the jury when unfitness to stand trial and the defence of mental impairment are raised • how the rights and interests of the community and of people who are directly affected by the CMIA are taken into account in CMIA cases • the court-hearing process and the effect of the findings that can be made under the CMIA.
Part IV—Management, supervision and release under the CMIA—considers the: • framework governing the imposition and review of supervision orders and leave under supervision orders • management of people subject to supervision orders. 
It follows recommendations in 2013 by the Victorian Parliament Law Reform Committee in its Inquiry into Access to and Interaction with the Justice System by People with an Intellectual Disability and their Families and Carers.

In summary
What area of the law is governed by the CMIA?
The CMIA governs a specific area of the criminal law where a person has been charged with an offence and one or both of the following circumstances exist: • at the time the person appears in court for the charge their mental processes are so disordered or impaired, they are ‘unfit to stand trial’ • at the time the alleged offence occurred the person was suffering from a ‘mental impairment’ which negates criminal responsibility for their actions. In such circumstances there is a legitimate basis for exempting the person from the usual criminal process and diverting them to a specialised criminal process contained in the CMIA. This exemption is based on fundamental criminal law principles, long established under Victorian law, that intersect with a number of other areas of the law, including mental health, disability and human rights law. The CMIA operates largely in the criminal justice system but it draws on areas of forensic clinical practice, including psychiatry, psychology, neuropsychology and neurology.
The current CMIA system
The CMIA was introduced in 1997 and commenced full operation on 18 April 1998. The report documents the fundamental problems with the previous ‘Governor’s pleasure’ regime that were addressed by the introduction of the CMIA, providing a fairer, more transparent and balanced approach in this area of the law.
There has been no complete review of the CMIA since it was introduced in 1997, 17 years ago. Discrete aspects of the CMIA have been examined previously. For example, the Victorian Parliament Law Reform Committee’s Inquiry into Access to and Interaction with the Justice System by People with an Intellectual Disability and their Families and Carers was completed in 2013. However, the Commission’s reference is the first full-scale review of the operation of this important legislation.
Improving the systemic operation of the CMIA
In conducting the review, the Commission has mapped out the operation of the CMIA using key findings from available quantitative data, submissions and consultations. The Commission identifies the threshold issues that have a system-wide effect on the provisions in practice. Chapter 2 contains these findings and 14 threshold recommendations to change the systemic operation of the CMIA.
Mapping the operation of the CMIA—key findings
CMIA cases are relatively infrequent compared with non-CMIA cases—representing approximately one per cent of criminal cases in a year in the higher courts. They are, therefore, the exception rather than the norm within the criminal justice system. However, due to gaps in available data, this may not reflect a complete picture of the CMIA’s operation. When such cases arise, they are of especial significance to the parties, people affected, in particular victims and their families, and the community.
The report identifies the key gaps in the data available on the operation of the CMIA and makes two recommendations for Victorian courts and Victoria Police to make changes to the way that data is recorded in matters under the CMIA.
The CMIA in the higher courts
The CMIA currently largely applies in the higher courts—the Supreme Court and the County Court. There were 159 cases determined under the CMIA in the Supreme Court and County Court from 2000–01 to 2011–12, with a small but gradual increase in the number of cases per year. Seven in 10 cases were heard in the County Court.
The vast majority of these cases involved adult male accused. Eleven people who proceeded under the CMIA in the higher courts were aged under 21 years at the time an order under the Act was made.
The most common principal offence in CMIA cases was intentionally causing serious injury (21.4 per cent), followed by murder (15.7 per cent), attempted murder (8.8 per cent) and indecent act with a child under 16 years (7.5 per cent).
Over the 12-year period, very few orders were made to unconditionally release the person after a CMIA finding (only 10 in total). Almost two-thirds of people (64.2 per cent, 102) were made subject to non-custodial supervision orders and custodial supervision orders were imposed for 29.6 per cent (47).
An observed trend in CMIA cases involving the defence of mental impairment is that they tend to involve accused with a significant mental illness and comprise the most serious offences of violence, such as murder and attempted murder, against a family member or close acquaintance. However, there is evidence to suggest that it is becoming more common for CMIA cases to involve less serious or non-violent offences, which are more likely to result in non-custodial supervision orders. Less information is available about people with an intellectual disability or other cognitive impairment who come under the CMIA, although the Commission’s research suggests that such cases are different to the ‘typical’ CMIA case. Such cases often involve people charged with sexual offences and who are unfit to stand trial due to a severe intellectual disability or, in cases involving historical sexual offences, dementia.
At 30 June 2013, there were 154 people with a mental illness subject to supervision by the Victorian Institute of Forensic Mental Health (Forensicare), and there were 30 people with an intellectual disability supervised by the Department of Human Services.
The CMIA in the Magistrates’ Court and Children’s Court
The CMIA currently has limited application in the Magistrates’ Court and the Children’s Court. There is a lack of quantitative data about how the CMIA operates in relation to young people and in the summary courts of jurisdiction. The report documents the Commission’s finding that the requirement for unfitness to stand trial to be determined in a higher court, usually the County Court, affects the extent to which such issues are raised by young and adult accused. There are no formal recording practices on how often matters in the Magistrates’ Court and Children’s Court are withdrawn by police prosecutors due to issues of unfitness or the defence of mental impairment. The report discusses known cases under the CMIA involving young people, charged with offences as children, where issues of unfitness or the defence of mental impairment were raised, almost all of which involved issues of unfitness due to intellectual disability or developmental issues. Four young people were made subject to supervision in non-custodial settings, all of whom were under 18 years at the time of offending but over 18 years when they became subject to supervision.
What works well and where is change required?
The Commission reports that the CMIA is a significant improvement on the Governor’s pleasure regime and has achieved many of its intended objectives. The expertise and experience of a core group of experts and the commitment and dedication by judges, prosecutors and defence practitioners who work under the regime are fundamental elements in the CMIA’s successful operation.
However, in addition to the particular issues specified in the terms of reference and supplementary terms of reference, the report identifies several key issues where a holistic approach is required to effect change, addressed through the threshold recommendations in Chapter 2.
A set of statutory principles to guide decision making
The principles that underlie the CMIA, identified in Chapter 2, form the principal framework for the Commission’s review and the recommendations in this report.
Broadly speaking, the CMIA seeks to strike a balance between the protection of the community and the rights and clinical or support needs of people subject to the legislation. The Commission considers that the following principles ought to be given explicit expression through the addition of a set of statutory principles that apply to decision makers under the CMIA in cases involving adults and young people: • community protection • least restriction • conducting proceedings involving an accused who was a child at the time of the alleged offence in accordance with specialised principles that apply in the Children’s Court • conducting proceedings to acknowledge support needs and involve individuals directly affected • recognising all people under the CMIA affected by an offence.
The Commission recommends an additional set of statutory principles drawn from those in the Children, Youth and Families Act 2005 (Vic) for decision makers under the CMIA as it applies to young people to reflect: • recovery and therapeutic-focussed criminal law principles • best interest principles and decision-making principles derived from family law.
A statutory principle and measures to address unreasonable delay
The Commission acknowledges the significant concerns expressed in submissions and consultations regarding delay in the operation of the CMIA. Delay has a particular impact on vulnerable people involved in CMIA proceedings, including accused with mental conditions and victims of crime. The report notes the particularly deleterious effect of delays on young people.
A statutory principle
Delay is an important consideration in the administration of criminal justice. The right to be tried without unreasonable delay is included in the minimum guarantees in the Charter of Human Rights and Responsibilities Act 2006 (Vic). The significance of this right is such that the Commission considers that a statutory principle ought to apply to reflect that unreasonable delay is to be avoided and CMIA matters prioritised where the accused was a child at the time of the alleged offences, where unreasonable delay would be inconsistent with the accused’s rights, and to support therapeutic outcomes for the accused, victims and family members.
Addressing the factors linked with unreasonable delay
The Commission identifies that a key factor contributing to delay is the currently limited powers under the CMIA in the Magistrates’ Court and Children’s Court to respond when issues of unfitness or the defence of mental impairment are raised. There can be unreasonable delays when matters involving adults charged with indictable offences triable summarily are required to be transferred to the County Court when they could have been dealt with in the summary jurisdiction. There can be unreasonable delays due to the transfer of matters involving young people charged with indictable offences to the County Court rather than being dealt with in the specialised Children’s Court jurisdiction. The Commission accordingly recommends the application of the CMIA be extended in the Magistrates’ Court and the Children’s Court to remove this jurisdictional barrier. The Commission also identifies the court processes where changes could be made to avoid unreasonable delay—in the listing practices of courts and in the delivery of judgments—and recommends that Victorian courts consider current approaches to listing matters under the CMIA, and possible new listing practices.
Education, training and awareness
People who work under the CMIA, such as judges, prosecutors and defence practitioners, play an important role in how its provisions operate in practice.
The Commission agrees with the Victorian Parliament Law Reform Committee’s recommendations for professional development for judicial officers and legal practitioners in this area. It is critical that those who are involved in acting on behalf of clients, prosecuting matters and presiding over cases have awareness, understanding and expertise when cases involve accused with a mental illness, intellectual disability or other cognitive impairment.
There will also be a need for professional development if the CMIA’s operation is further extended in the Magistrates’ Court and Children’s Court as the Commission has recommended. The Commission makes four recommendations for training and education requirements for Victoria Legal Aid lawyers, practice information to provide guidance to defence practitioners, prosecutorial guidelines, education and training for police prosecutors, and judicial education for judicial officers.
Linkages, capacity enhancements and information sharing
The CMIA operates across several government departments, all criminal courts and mental health and disability services sectors. This can make it difficult for a person who is subject to the CMIA to receive a connected pathway through the system. The report acknowledges the initiatives that have helped to improve linkages in this area; however, the Commission identifies that further change in this area is required for the CMIA to operate more effectively and makes recommendations in Chapters 5, 10 and 11 to achieve this.
Reframing the test for unfitness to stand trial
Unfitness to stand trial refers to the law that exempts an accused from a standard criminal trial, sometimes temporarily, because at the time of the trial they cannot understand or participate in proceedings. The fundamental right of an accused to have a fair criminal hearing underpins this law.
An accused is presumed to be fit to stand trial. If a question of unfitness arises, the CMIA sets out the procedure and the legal test that apply in investigating whether an accused is unfit to stand trial. The test for unfitness centres on whether the accused’s mental processes are so disordered or impaired that they are, or at some time during the trial for a charge will be, unable to understand or do certain things required of an accused in order to participate in a hearing. These are constituted by six criteria, set out in the CMIA and derived from the common law (known as the ‘Presser criteria’).
In Chapter 3, the Commission considers whether the law for determining unfitness to stand trial can be improved.
The basis for the test
In doing so, the Commission evaluates the basis for the test and whether it should retain its focus on the core elements of what constitutes unfitness through the use of specific criteria, or should adopt a new focus on the accused’s decision-making capacity or effectiveness of any participation. The Commission’s view is that it is only fair to subject an accused to the trial process where they are able to make the crucial decisions relevant to their trial. The best way to ensure that the test takes these into account is to retain the current test, but to reframe it by refining and supplementing the current criteria. This approach preserves the basic competencies essential for a fair trial that may be excluded by a general test that focuses on decision-making capacity or effective participation.
The Commission also recommends that the unfitness test should be adapted so that it may apply in the Magistrates’ Court and Children’s Court and take into account the developmental stage of young accused.
Changes to the way the test operates
The Commission’s view is that unfitness to stand trial is not a ‘black and white’ issue, but is decision-specific, time-specific and support-dependent. The law should accommodate the varying abilities, choices and needs of accused who may be unfit to stand trial to the maximum extent appropriate.
The Commission makes a number of further recommendations to change the way the test operates, including: • A departure from the current test for unfitness to allow an accused’s decision to plead guilty to be given effect in some circumstances. • Measures to ensure that, once an accused has been found unfit, the adjournment period is better used to optimise their ability to become fit prior to a determination of permanent unfitness.  • Approaches that require the law to do more to consider and provide the support needed by an accused with a mental illness, intellectual disability or other cognitive impairment to optimise their fitness, where such measures would assist them to understand and participate in their trial.
The Commission also makes recommendations to improve the rigour with which the test is applied in expert assessments of unfitness.
Clarifying the law on the defence of mental impairment
The principles underpinning the defence of mental impairment have existed in the law for centuries. They are that: • a person should not be punished for an offence if they are not criminally responsible for the conduct because of a mental impairment • the community must be protected from the risk posed by people because of their mental impairment.
The CMIA sets out the test that must be satisfied to establish the defence of mental impairment, retaining the law as it was under the common law defence of insanity, and substituting the outdated term of ‘insanity’ with ‘mental impairment’. The test requires that at the time of engaging in conduct (acts or omissions) constituting an offence, a person had a mental impairment that had the effect that they did not know the nature and quality of what they were doing, or that they did not know that what they were doing was wrong.
The need for a statutory definition of mental impairment
The CMIA does not define the term ‘mental impairment’—the meaning is derived from the common law notion of a ‘disease of the mind’.
In Chapter 4, the Commission considers whether a definition of mental impairment should be added to the CMIA or whether it should continue to be undefined in the Act. The Commission agrees with the strong support in submissions and consultations that there is need for a statutory definition to clarify the current uncertainty in this area of the law. The Commission recommends that the CMIA define a mental impairment as ‘a condition that includes but is not limited to mental illness, intellectual disability and cognitive impairment’. The Commission considers that this should include conditions that result from the ingestion of substances, but only if those conditions exist independently of the effect of the substance on the person. The Commission’s view is that if a person is suffering from an ongoing mental condition to the significant extent required by the test, the original source of that condition should not exclude the availability of the defence.
Conditions that are the temporary effects of the ingestion of substances, such as intoxication, should not be included, on public policy grounds.
Clarifying the test for the defence
The Commission also considers that the second aspect of the test—relating to the accused’s knowledge of whether the conduct is wrong—requires clarification. The Commission recommends a change to the legal meaning of this to focus on the accused’s capacity to think rationally, rather than the accused’s ability to ‘reason with a moderate degree of sense and composure’.
Application of the CMIA in the Magistrates’ Court
The Magistrates’ Court does not have the power to determine unfitness to stand trial. If a person charged with an indictable offence raises the issue of unfitness to stand trial, the matter must be transferred to a higher court, usually the County Court, to determine the matter. The Magistrates’ Court can consider the defence of mental impairment in determining the criminal responsibility of an accused charged with an offence within its jurisdiction. However, the only outcome that can be imposed is to discharge the person with no conditions for supervision, support or treatment.
A gap in the CMIA’s operation
The limited application of the CMIA in the Magistrates’ Court results in a gap that prevents the CMIA from operating justly, effectively and consistently with its underlying principles. The Commission finds that the lack of powers in the summary jurisdiction to determine unfitness to stand trial results, through no fault of the judiciary, in a lack of judicial oversight, a lack of outcome in terms of community protection and treatment, unfairness to the accused, and artificial decision making by the parties. The Commission also finds that the restriction in the CMIA provisions—that issues of unfitness to stand trial can only be determined in the higher courts— contributes to delay in matters involving indictable offences triable summarily that could otherwise be dealt with in the summary jurisdiction but are required to proceed by way of committal and transfer to a higher court.
Legislative framework for extending jurisdiction
Following its recommendation in Chapter 2 to extend the application of the CMIA in the Magistrates’ Court, in Chapter 5 the Commission provides a legislative framework for such an extension.
The framework is designed to suit the specific operation of the Magistrates’ Court and provide a flexible but rigorous approach appropriate to the nature of CMIA cases suitable to be determined summarily.
The Commission recommends that magistrates be provided with the power to: • determine unfitness to stand trial and the criminal responsibility of unfit accused • discharge a person at any time after determining there is a ‘real and substantial question of unfitness’, if certain criteria are fulfilled • make two-year supervision orders following a finding relating to unfitness and/or not guilty because of mental impairment (with liberty to apply for a review of the order rather than mandated reviews).
Work commissioned by the Commission and conducted by consultants at the University of Melbourne estimates significant cost savings in court hearings under the CMIA if these recommendations are implemented. Chapter 5 details the cost implications under the current and proposed models of the CMIA in the Magistrates’ Court.
A specialised approach to the application of the CMIA in the Children’s Court
The CMIA currently operates in the same limited way in the Children’s Court as it does in the Magistrates’ Court. The need for a specialised approach to address the gap The Commission makes similar findings to those in relation to the Magistrates’ Court regarding how the lack of powers results in the unjust and ineffective operation of the CMIA, which is inconsistent with its underlying principles. The Commission documents the particular concerns expressed in submissions and consultations regarding the effect of the limited jurisdiction on young people and the need for a specialised approach in this area.
A specialised approach is required to remedy the gap in the application of the CMIA in the Children’s Court and to provide an appropriate response to young accused under the CMIA who face multiple layers of vulnerability, including mental conditions, development issues and trauma in connection with offending behaviour.
Special features of the legislative framework for extending jurisdiction
In Chapter 6, the Commission makes recommendations to provide a legislative framework for the operation of the CMIA in the Children’s Court via the creation of specialised provisions in the Children, Youth and Families Act 2005 (Vic).
The framework is based on that recommended for the Magistrates’ Court and provides similar powers in relation to determining unfitness, determining criminal responsibility and making orders. However, it has special features designed to maximise early intervention, uphold the rights of young people and ensure protection of the community, including: • a presumption in favour of diversion and community options if the issue of unfitness and/or the defence of mental impairment are raised • the creation of an ‘assessment order’ that allows a young person to be assessed for unfitness as well as their suitability for voluntary diversion to a case worker program • the creation of two-year therapeutic supervision orders with built-in six-month review periods • the establishment of a youth forensic facility underpinned by a multi-disciplinary model of care.
The Commission’s view is that the extension of the CMIA’s application in the Children’s Court should not occur without the establishment of a youth forensic facility. Such a facility is necessary to provide a secure and therapeutic environment—which currently does not exist in Victoria—to conduct assessments, undertake treatment, and provide services to optimise fitness and protect the community through secure supervision of young people on therapeutic supervision orders. Work commissioned by the Commission and conducted by consultants at the University of Melbourne estimates significant cost savings in court hearings under the current and proposed models in the Children’s Court, set out in Chapter 6. However, this must be balanced with the cost implications of the Commission’s recommendations to establish new programs and facilities to support the proposed model.
Juries under the CMIA in the higher courts
Juries are a central part of criminal proceedings in Victoria and are currently involved in a number of the CMIA processes in the higher courts, considered by the Commission in Chapter 7.
Jury involvement in CMIA proceedings
Juries are required to decide whether a person is unfit to stand trial and whether a person is not guilty because of mental impairment in the higher courts. The CMIA currently contains an exception to the requirement for a jury to determine the defence of mental impairment when there is agreement between the prosecution and defence regarding the proposed evidence in the case. In such cases, it is possible for a judge to hear the evidence and make a determination of criminal responsibility, in place of the jury. The Commission considers changes to the jury’s involvement in determining whether a person is unfit to stand trial and the criminal responsibility of people who are unfit and/or who have raised the defence of mental impairment.
Should a jury determine unfitness to stand trial?
Unfitness to stand trial is a pre-trial issue. Consistent with the fact that the role of the jury in non-CMIA matters has, over time, become limited to determining criminal responsibility, the Commission’s view is that the jury should no longer determine whether a person is unfit to stand trial.
The Commission recommends that a judge or magistrate determine investigations of unfitness under the CMIA.
Should a jury determine criminal responsibility?
In the Commission’s view, a jury should determine criminal responsibility in all CMIA cases, for accused who are fit and unfit to stand trial.
The jury’s involvement ensures public examination of criminal responsibility, for the benefit of the accused, victims and the community. The involvement of the jury requires presentation of the evidence and issues in a case in a way that is comprehensible. Exposure of this kind serves an important public and also educative function. These principles outweigh the support received in submissions and consultations for the current CMIA provision allowing a judge to determine criminal responsibility if the prosecution and defence agree that the proposed evidence is capable of establishing the defence of mental impairment. The Commission accordingly recommends that the provision be removed and the jury restored as the decision maker in all determinations of criminal responsibility under the CMIA.
Directions to the jury
Jury involvement in proceedings gives rise to the obligation on judges to direct the jury about the law to assist the jury in reaching a decision on the question of fact before it. Particular focus has been given to the approach to directing the jury on the elements of an offence when the defence of mental impairment is in issue. The Commission considers the approaches currently used and the issues associated with each approach. The Commission considers that there is a need to clarify and simplify the law by providing legislative guidance.
The Commission recommends a new approach that provides a level of prescription with flexible characteristics to ensure that it can be applied to address the different circumstances that arise in cases where the defence of mental impairment is raised. The approach seeks to balance two principles: that an accused with a mental condition should be subject to equal criminal standards and the same opportunity for acquittal as those without a mental condition; and that for people who have a mental impairment that is such that it renders them not responsible for harmful actions, there is a need to protect the community from further conduct through supervision and treatment.
Rights and interests under the CMIA
The CMIA seeks to ensure there is protection of the rights, and representation and consideration of the interests, of a range of individuals directly affected by the legislation, as well as the community as a whole. The Commission considers that the rights of victims are central to the CMIA process. Chapter 8 contains the Commission’s recommendations regarding changes to the provisions that govern the representation and consideration of the various interests involved in the CMIA.
Victims, victims’ families and family members
The Commission considers issues related to the support available to victims, victims’ families and family members throughout the CMIA court process, the notification and court report system and the need for acknowledgment that the conduct comprising an offence has occurred. This is framed with particular regard to the nature of the CMIA cases—which often involve victims who are also family members of the accused—and the different nature and outcomes of CMIA proceedings that provide an additional layer of complexity for victims of crime in negotiating the criminal justice process. The Commission makes recommendations to enhance victim support, improve victim notification processes and promote meaningful and appropriate sharing of information with victims.
Advocacy for supervised people
The Commission considers issues relating to advocacy for people subject to supervision orders, including the right to legal representation and independent advocacy. The Commission recommends a gap analysis be undertaken of the advocacy services for people who are subject to the CMIA to improve the accessibility of such services.
Representing the community’s interests
The Commission considers the range of parties who represent the interests involved in hearings to review, vary and revoke supervision orders. The Commission’s conclusion is that the roles of the parties under the CMIA should be re-framed so that the Director of Public Prosecutions represents the interests of the community, including victims and their families. Suppression orders The Commission considers issues regarding the balance between the principles of open justice and the successful reintegration of people subject to the CMIA into the community. Recommendations are made to introduce a statutory principle to recognise the importance of suppression orders for long-term recovery and successful reintegration of people into the community.
Processes and findings under the CMIA in all courts
The CMIA sets out the law and process for determining whether an accused is unfit to stand trial. It also sets out the process for determining the criminal responsibility of people found unfit and for people who are fit to stand trial who raise the defence of mental impairment. In Chapter 9, the Commission reviews the law that governs the processes and findings under the CMIA and makes recommendations to improve their operation in all courts where the CMIA applies. The Commission makes recommendations to: • resolve a number of procedural anomalies in the way that information is provided to the court following findings • ensure that the participation of the accused in proceedings that affect them is maximised by the provision of in-court support and ensuring that CMIA processes operate in line with its therapeutic focus • rename CMIA findings to better reflect the outcome of CMIA proceedings and thus provide transparency and recognise the interests of victims • streamline existing processes that result in the replication of information or procedures • provide an approach for the review of ancillary orders and consequences that follow CMIA findings • ensure that appropriate opportunities for appeal are provided against all CMIA findings.
Improving the supervision, review and leave framework in the higher courts
The CMIA sets out the law and process for determining how long and under what conditions a person found unfit to stand trial or not guilty because of mental impairment should be detained, supervised and provided with treatment or support. The CMIA provides a comprehensive decision-making framework that contemplates the gradual progression of a person under supervision with staggered reductions in the level of supervision commensurate with the safety of the community. Current framework
If a person becomes subject to a CMIA finding, the court must decide whether the person is to be unconditionally released or declared liable to supervision. If declared liable for supervision, the court must then impose a supervision order—either custodial or non-custodial—for an indefinite period, irrespective of the particular offence. The court must impose a nominal term for the order, in accordance with a framework set out in the CMIA that corresponds to the maximum penalty for the offence. The nominal term prescribes the minimum time before a ‘major review’ of the order must occur. At a major review, the court considers whether to release a person or reduce or continue the degree of supervision once the nominal term has expired. The CMIA provides for a process and criteria for the review, variation and revocation of supervision orders. It also provides for a comprehensive system of reports to ensure that supervised people have regular reviews and are not ‘lost’ in the system.
In addition to the courts, another key decision maker under this framework is the Forensic Leave Panel—an independent body established by the CMIA to introduce transparency and accessibility into the leave system. The Forensic Leave Panel makes the majority of decisions regarding a person’s ability to take leave of absence while under a supervision order, but the court makes decisions regarding extended leave (periods of up to 12 months).
The need for a refined framework
The Commission has reviewed these aspects of the decision-making framework and has considered whether they operate consistently with the CMIA’s principles, as well as justly and effectively. While the Commission acknowledges that the current framework constitutes a vast improvement on the previous Governor’s pleasure regime for supervision, this report identifies a number of areas where, in the Commission’s view, further improvements can be made. The Commission makes recommendations that aim to ensure that, where it is safe to do so, the level of restriction on the liberty of people subject to supervision orders is reduced. The implementation of a refined supervision, review and leave framework, set out in Chapter 10, will ensure that this occurs in appropriate circumstances.
Improving transparency and clarity in decision making
Transparency and accountability are key principles that run through the CMIA. CMIA processes should promote procedural fairness and open and transparent decision making. Leave is an important part of a person’s recovery under the CMIA—the conduct of the process and decisions have a significant impact on people who are subject to supervision orders. The Commission makes recommendations to improve transparency in the communication of reasons for decisions by the Forensic Leave Panel, and recommends a review of the Internal Leave Review Committee that functions as part of the leave process for forensic patients.
Ensuring the framework operates to achieve community protection and least restriction
A significant focus of the report is to consider whether the supervision framework operates consistently with the key principles of community protection and least restriction. The Commission recommends the retention of indefinite supervision orders in the higher courts. They are consistent with the therapeutic—not punitive—focus of the CMIA. The duration of an order should be based on the time required to ensure protection of the community and the recovery and progression of a person along a process of gradual reintegration. An indefinite order allows the risk assessment to occur throughout the period of supervision, rather than at the time the order is made.
The Commission has concluded that rather than making changes to the length of supervision orders, reforms should be targeted at ensuring the decision-making framework is rigorous once an indefinite order has been made. The framework should ensure that the period of supervision closely reflects the minimum period necessary to address the person’s risk to the community. The Commission considers that there is a need for more transparency in the framework that governs the timing of reviews of supervision orders. The report identifies that the current nominal term framework is confusing and unclear to people who have professional and personal experience with the CMIA, and raises unfair and inaccurate expectations in the community.
Further, and more significantly, the Commission has formed the view that the nominal term system is an inappropriate way of setting review periods with respect to the seriousness of the offence. It rarely reflects the actual period of supervision required in practice in each particular case, which varies vastly according to the individual circumstances.
Replacement of nominal term system with a new system of ‘progress reviews’ for indefinite supervision orders
The Commission recommends the introduction of a new system of five-year ‘progress reviews’ to replace the nominal term system. This would ensure that the review of orders and duration of supervision are more explicitly linked to the actual decrease or increase in the risk posed by the person and any improvements or decline in the person’s progress or recovery. This is so that, consistent with the principle of least restriction, the point at which a person’s supervision should be reduced can be monitored and identified more accurately, and protects against arbitrary detention. This change will clarify and promote transparency in this area of the law. Under this system, the implications of a supervision order will be clear to professionals who work under the CMIA, supervised people and their family members, victims of crime and their families, and the community.
The Commission also recommends a modified set of presumptions that are to apply to the court’s consideration at each five-year progress review.
Responsibility for decision making
Importantly, the Commission recommends that the responsibility for decision making should remain the same, whereby the criminal courts make decisions as to whether a person should be supervised, the type of supervision order and any conditions, the review, variation and revocation of supervision orders and extended leave. The Commission does not recommend changes to the types of decisions made by the Forensic Leave Panel. The Commission considers, however, that improvements are required to the continuity of decision making between the two bodies and makes a number of recommendations to ensure that a lack of information does not stall a person’s progress through the leave system.
Improvements to the factors relevant to decision making
The Commission has also considered the factors that are relevant to decision making by the court and the Forensic Leave Panel. The Commission makes recommendations to improve consistency in the factors that apply across different decision-making processes.
The Commission recommends changes to the tests for ‘endangerment’ that are applied to make the CMIA more consistent with modern risk assessment principles based on ‘unacceptable risk’ and removal of the risk posed by a person to themselves as a relevant factor in the test. The Commission also considers the relationship between the CMIA and orders under the civil mental health and disability systems, and makes a recommendation to enhance the links between these systems and the CMIA.
The effects of the Commission’s recommendations on the factors guiding decision making in relation to supervision, review, release and leave decisions under the CMIA in each court jurisdiction are demonstrated in Appendix G, which sets out the new relevant provisions if the Commission’s recommendations were to be implemented.
Management of people subject to supervision orders
Once a person has been placed on a supervision order, the responsibility for the supervision of that person is designated according to the place of custody or services received.
Forensicare, a statutory agency in the Department of Health, is responsible for supervising people who are in custody, or receiving services from, an approved mental health service. A person on a custodial supervision order is detained in Thomas Embling Hospital, Victoria’s only secure mental health hospital. A person on a non-custodial supervision order is managed by an area mental health service, overseen by the community arm of Forensicare.
The Secretary to the Department of Human Services is responsible for people who are in custody in a residential treatment facility or a residential institution (on a custodial supervision order) or receiving services from a disability service provider (on a non-custodial supervision order). The management of people subject to supervision orders is governed by the CMIA in conjunction with the relevant mental health or disability legislation.
Barriers to effective management and supervision
The Commission’s review identified a number of barriers to the effective management and supervision of people subject to supervision orders. The Commission makes recommendations for change where such barriers, in its view, result in artificial decision making in managing and supervising people on orders or cause the CMIA to operate in a manner that is unjust, ineffective and inconsistent with its underlying principles.
The Commission considers that effective supervision for people with an intellectual disability or other cognitive impairment subject to the CMIA is often limited by a lack of appropriate accommodation. The Commission recommends that the Department of Human Services commission a review of current forensic disability services to identify appropriate models of care and the accommodation needs for this group of people subject to the CMIA.
The Commission identifies that a lack of flexibility affects the operation of the CMIA provisions for the management of people with a mental illness. The Commission recommends changes to the provisions governing breaches of supervision orders and the establishment of a medium-secure facility as an approved mental health service under the CMIA to provide an intermediate step between the high-secure facility of Thomas Embling Hospital and community accommodation.
A new approach for people with an intellectual disability or other cognitive impairment
In response to the significant concerns raised in submissions and consultations, the report specifically examines the suitability of the model of supervision for people who are subject to the CMIA who have an intellectual disability or other cognitive impairment, such as an acquired brain injury.
A consistent feature of submissions and consultations was that changes are needed to ensure that the legislative framework for supervision and management created by the CMIA and the Disability Act 2006 (Vic) operates in a manner that is appropriate for this group, consistent with the CMIA’s underpinning principles.
The Commission makes four recommendations for legislative change to ensure that there is a mandated treatment pathway and legislated clinical oversight for people with an intellectual disability or other cognitive impairment. These recommendations seek to introduce more safeguards and facilitate a ‘person-centred’ approach to managing such vulnerable people, to ensure they are not at risk of unequal treatment before the law.