09 September 2014

Magic Initials

I'm enjoying, in a rather bleak way, the coverage of UK solicitor Alan Blacker, who has attracted attention by being rebuked by a UK judge for appearing in court in robes that featured ribbons and medals. Not "poxy swimming medals", says Blacker, who characterises himself as Lord Harley of Dublin and the Rt Hon Lord Harley of Counsel. Alas, not Harley of Davidson.

The title supposedly reflects a lineage traceable to Irish monarch King Sithric.

His Lordship has described himself thus -
Dr. The Rt. Hon. Alan Blacker. The Lord Harley of Dublin. KGCSt.J. DPhil. MSc(Hons)(clinical forensic psychiatry) MA(Hons) MA(Hons)(Inc.ED.&SEN.) LLB(DHons) BA(Hons) PGDL PGDLP FMLST(Psych) FCInst.L.Ex. FRSA. FRGS&IBG. FZSL. FRAntq.I. FRAnth.I. SIRM. MIMHAP. SSM. Solicitor Advocate of the Supreme Court, Chartered Legal Executive, Consultant Transactional Analysis Clinical Psychoanalytical Psychologist. Who's Who. Burke's Peerage and Baronetage. NIFHS Register. Ulster Historical Foundation.
Critics have more cruelly described him as looking like Harry Potter and appear to be vigorously deconstructing the magic initials, with institutions disclaiming any association.

The Wales Online media site states
The Zoological Society of London was baffled by Blacker’s claim he was a trustee. “Alan Blacker is not a trustee of the Zoological Society of London,” a spokesman said. 
Rochdale Council was confused by Blacker’s claims to have been secretary of “Rochdale Local Government Committee” at “Rochdale MBC” – understood to mean Rochdale Metropolitan Borough Council. “We’ve got no record of him on our system at all,” a spokesman said. It had “no record of that committee.” 
The Institute of Health Care Management was surprised by claims the solicitor was a fellow of organisation. “Alan Blacker is not a member,” a spokesman said.
[Blacker's] CV asserts Blacker was “Branch Secretary Honorary Colonel 24 Batt. (Irish) and 1st Btn” at the Royal Artillery Association in 2000. “We don’t have him on our database,” the institution said.
It appears that his extensive LinkedIn profile refers to "Trinity College", with his Facebook profile referring to "Trinity College, Oxford". (The latter reportedly denies an association.)

The Mirror reports that his LinkedIn profile
carries glowing testimonials which describe him as the "Mozart of the courtroom" and "almost a national treasure". 
And he also states he is fluent in Urdu, Punjabi, Gujarati, Hindi, and the Luo language of Kenya and Tanzania. 
He says he has been a member of nearly 30 different societies, including the Society of Model and Experimental Engineers, the Institute of Mental Health Act Practitioners, the Royal Artillery Association, the Zoological Society of London and the Ulster Historical Foundation. He also claims to have more than 30 different certificates. 
After the case Mr Blacker said: "My qualifications, status and offices were brought into disrepute and I was personally very upset by the comments made towards me.
I am shocked to the core that my position has been questioned - which is I feel reflective of the sacrifice of thousands of men who have died for the freedoms that are referred to in the title of Lord Harley for almost 1,100 years. 
The Express reports that Blacker indicated to the disapproving judge in Cardiff Crown Court that
he had been told by the Lord Chief Justice that it would be "appropriate" to [wear his medals]. When asked for clarification by the judge, he said it was "Lord Thompson" who had given him the advice. 
The current Lord Chief Justice is Lord Thomas. 
"Since I started practicing," the judge blasted, "there has been no Lord Chief Justice of England or Wales by the name of Lord Thompson."
Blacker subsequently stated
"My medals were awarded to me and bare the face of the Crown. They may be for voluntary medical service but they bear the face of the Queen. "They are not some poxy swimming badge".
An echo of the CV enhancement undertaken by figures such as Wilce and Papows?

07 September 2014

Juries

The Victorian Law Reform Commission report on Jury Empanelment [PDF], tabled last week, covers three aspects of the state's jury system in criminal and civil jury trials:
• the use of peremptory challenges and the Crown right to stand aside jurors in criminal trials 
• the identification of jurors by name or number in court 
• the additional juror system, in particular the balloting off of excess jurors at the time the jury is required to retire to consider its verdict. 
The Commission states that
Jury trials are a central feature of the justice system in Victoria. The principal governing legislation is the Juries Act 2000 (Vic) (the Juries Act). Jury trials are held for indictable criminal matters and for civil proceedings in certain circumstances. 
Jury trials are said to serve a number of important purposes. For example: • safeguarding the rights of the accused by limiting the power of the state and the judiciary • ensuring justice is administered in line with the community’s standards • enabling the community to participate directly in the administration of justice, thereby increasing acceptance of trial outcomes, as well as confidence in the legal system more generally. 
Participation in jury service is increasingly being viewed as a right of citizens in a democratic society. There were 584 Supreme and County Court jury trials in 2012–13 in Melbourne and regional Victoria. Most Victorians who are on the electoral roll are eligible and liable for jury service. People engaged in certain types of work (broadly justice-related work) are not eligible to serve on juries. In addition, people who have been convicted of specified serious offences are disqualified from jury service for a period of time. 
Prospective jurors are selected randomly from the electoral roll to form a jury pool and then randomly allocated to trials using a balloting system to form a jury panel. The jury of 12 in a criminal trial and six in a civil trial is selected from the jury panel. This process, known as the ‘empanelment’, is set out in Chapter 2.  
Peremptory challenges and the Crown right to stand aside 
Once a panel of prospective jurors has been allocated to a trial, peremptory challenges and the Crown right to stand jurors aside in criminal trials (stand asides) are available to the parties as a means of excluding prospective jurors from the jury. No explanation is required for the basis of the challenge. 
The stated purpose of these mechanisms is to secure an impartial jury so the accused in criminal trials and plaintiff and defendant in civil trials have a fair trial. However, peremptory challenges and stand asides are not the only mechanisms available to achieve impartiality. Impartiality is also promoted by a range of jury selection and trial processes and practices, including random selection, the excuse process and judicial directions on impartiality. 
The use of peremptory challenges and stand asides 
The Crown right to stand aside in criminal trials is infrequently used in Victoria, and the Victorian and Commonwealth Directors of Public Prosecutions have developed strict guidelines limiting the way in which it may be used. Only 76 stand asides were used in Victoria in 2012–13. In criminal trials, the accused has six peremptory challenges and in civil trials each party has three peremptory challenges. Data from the Juries Commissioner’s Office (JCO) for 2012–13 shows that there was an average of five peremptory challenges per criminal trial. Parties routinely use all three of their peremptory challenges in civil jury trials. 
The basis of the exercise of peremptory challenges 
There are no guidelines around the exercise of peremptory challenges. Criminal defence practitioners and civil law practitioners told the Commission that they advise their clients to exercise their challenges to achieve a number of aims: • To exclude prospective jurors who appear unable to fulfil their function, because, for example, they cannot hear very well. • To exclude prospective jurors who demonstrate from their demeanour that they may not be impartial—for example, by glaring at the accused person, or exclaiming in shock when the charges are read out. • To exclude prospective jurors they assume may not be impartial because of a certain characteristic such as the prospective juror’s occupation, age or gender. 
The potential for peremptory challenges to impact on representativeness 
The Commission considers that, depending on the strategy adopted, the exercise of six peremptory challenges to exclude prospective jurors with certain characteristics has the potential to impact on the representativeness of a jury. For example, if the defence in a sex offence matter adopts a strategy of using all six of its peremptory challenges to exclude women because it is assumed that women may be sympathetic to a female victim, then the jury is likely to have a much-reduced representation of women. …. 
The effectiveness of peremptory challenges in achieving an impartial jury Studies on the link between characteristics and verdict preference do not support the use of characteristics as an effective or reliable indicator of sympathy or bias in jurors. The Commission does not support the use of peremptory challenges to exclude people with certain characteristics on the basis of assumptions about how groups with those characteristics may decide a case. 
The Commission, however, accepts that it may be appropriate to use peremptory challenges (or stand asides) to exclude a prospective juror who has displayed behaviour that may indicate bias, who is known to one of the parties or who appears unable to fulfil the task of a juror. 
Peremptory challenges and procedural fairness 
The Commission accepts that the availability of peremptory challenges in criminal matters provides an accused with some involvement in the trial process and may contribute to a perception that they have been given a fair trial. This perception is independent of the effectiveness of peremptory challenges in actually achieving an impartial jury. 
The Commission also accepts that for both criminal and civil trials, peremptory challenges provide an expedient and relatively non-invasive means for excluding jurors who may be perceived to be biased, or are unable or unwilling to serve. 
The Commission, however, does not consider that procedural fairness requires a certain number of peremptory challenges to be available to an accused or to parties in a civil trial. Many jurisdictions have fewer peremptory challenges than Victoria and peremptory challenges have been abolished altogether in the United Kingdom. 
The Commission has recommended that the number of peremptory challenges available in both criminal and civil trials be reduced, but not abolished. 
This recommendation aims to balance the need for an expeditious process for excluding jurors who are not impartial or are unwilling or unable to serve, with the potential for challenges to be used to exclude prospective jurors based solely on their personal characteristics (such as their gender, age, race or occupation), or to skew the representativeness of a jury. Retaining peremptory challenges but reducing the number available also preserves the benefit provided to the accused by allowing them some involvement in the trial. 
While the Commission has expressed a view about the desirability of using peremptory challenges for particular purposes, it does not recommend that guidance be provided on the exercise of peremptory challenges. Such guidance would not be practical or enforceable. 
The peremptory challenge process 
The Commission has also examined the peremptory challenge process used in Victoria. A feature of the challenge process in criminal trials peculiar to Victoria is the practice of requiring prospective jurors to parade past the accused person on their way to the jury box. It appears that the purpose of this practice is to allow the accused to see the prospective juror so he or she can decide whether to challenge the prospective juror. 
While many jurors consulted by the Commission indicated that they understood and supported the right of the accused to peremptorily challenge, many also felt uncomfortable about the parade process. 
The Commission considers that the purpose of the parade can be achieved in a manner that is less confronting and intimidating for jurors and has made some recommendations to achieve this.
Identifying prospective jurors in court by name or number 
Victoria is the only Australian jurisdiction to provide trial judges with an unfettered discretion about whether to identify prospective jurors in court by name or number. In Queensland and Tasmania, the judge has a discretion to identify prospective jurors by number where there are ‘security or other reasons’. 
In New South Wales, Western Australia and South Australia, there is no judicial discretion and prospective jurors are identified in court by number only (although in Western Australia and South Australia parties have access to a list containing the name, occupation and address of jurors). 
Individual trial judges in Victoria exercise their discretion in different ways. Some judges always empanel using one mode, whereas others will vary the mode depending on the nature of the trial. This means that whether prospective jurors are identified in court by name or number depends on the practice of the individual trial judge. 
The lack of consistent practice has led to concerns that the use of numbers in criminal trials may give prospective jurors the impression that the accused is particularly dangerous and therefore protective measures such as juror anonymity are warranted. Defence practitioners have generally expressed the view that it is preferable to identify prospective jurors by name for this reason. Some defence practitioners and civil law practitioners also argue that name may provide some information on which to base peremptory challenges, particularly where the trial involves ethnic or religious issues. 
The Commission does not consider a person’s name to be a reliable indicator of their ethnicity or religion. Further, as noted above, the Commission does not support the use of peremptory challenges that rely on characteristic-based assumptions, in this case a prospective juror’s ethnicity or religion. 
The Commission has weighed the views of judges and practitioners who support the use of name or the continuation of a judicial discretion to use name against the strong preference of jurors and prospective jurors to be identified in court by number only to preserve their security and privacy. 
In recommending that prospective jurors be identified by number only, the Commission also notes the benefits of consistency of practice across all jury trials. 
Additional jurors 
The Juries Act provides that up to three additional jurors may be empanelled in criminal trials and two additional jurors may be empanelled in civil trials. The purpose of empanelling additional jurors is to provide a buffer against juror attrition. It is not uncommon for jurors to be discharged during the course of a trial for illness or family reasons. The rate of discharge of jurors increases for long trials. 
The Juries Act allows judges to order trials to continue with as few as 10 jurors in criminal trials and as few as five in civil trials. This is not ideal, however, as it may be seen to detract from the legitimacy of verdicts. Consequently, judges are reluctant to use these provisions unless absolutely necessary. Empanelling additional jurors therefore acts as an additional safeguard against trials being aborted due to excessive juror attrition. Aborted trials are very costly to both the parties and the community. 
Where more than 12 jurors in criminal trials and six jurors in civil trials remain at the time that the jury is required to retire to consider its verdict, a ballot is held to reduce the number of jurors to 12 or six. A total of 56 additional jurors were empanelled in 2012–13. About a third of those were balloted off. The effect of balloting off on jurors Information gathered by the Commission indicates that the balloting-off process has a significant and often very negative impact on many balloted-off jurors and the remaining jury. Many balloted-off jurors are frustrated at not being able to complete their task as jurors and angry that they have spent significant amounts of energy and time as jurors without being able to participate in deliberations and the verdict. Most of those who remained on the jury after a ballot felt sorry for the balloted-off juror. Some remaining jury members also commented that the ballot impacted negatively on the dynamic of the jury and on deliberations. 
Not balloting off 
The Commission considers that balloting off should be abolished, effectively allowing an enlarged jury in instances where additional jurors remain when the jury retires to consider its verdict. This is because of the adverse impact on both balloted-off jurors and the remaining jury. All of the judges consulted by the Commission strongly supported the abolition of balloting off because of its negative effects on individual jurors and the jury as a whole. There is no information available about how effectively an enlarged jury would operate, as (with the exception of Scotland), no other similar jurisdiction has juries of more than 12 jurors. 
A concern is that it may be more difficult for larger juries to achieve unanimity—a requirement for Commonwealth offences and some state offences—and therefore for the prosecution to convict in such cases. In such cases, acquittal also requires unanimity. Studies on the impact of jury size comparing juries of six to juries of 12 suggest that it is likely to be more difficult for larger juries to achieve consensus. However, research on how jurors deliberate and make decisions, and the experience of the courts, also demonstrate that the strength and cogency of evidence is an important factor influencing the ability of juries to achieve unanimity. Therefore, while jury size may be relevant to achieving unanimity, it is not the only factor, and consequently should not outweigh the known negative effect of balloting off on jurors. 
Majority verdicts 
Majority verdicts may be accepted as a verdict for most Victorian criminal offences and in all civil trials. If balloting off is abolished, the definition of ‘majority verdict’ will need to be amended. The Commission considers that the way in which ‘majority verdict’ is defined is integrally connected to the rationale used for allowing majority verdicts. In Victoria, the rationale used to support the introduction of majority verdicts was to prevent a single ‘rogue juror’ from derailing an otherwise unanimous verdict. 
The Commission’s recommendation, therefore, is dependent on the applicability of that rationale to a jury of more than 12 jurors (for criminal trials) or more than six jurors (for civil trials). The Commission recommends that a majority verdict should be defined as the agreement of all jurors except one for both criminal and civil trials. The Commission makes the following recommendations 
Peremptory challenges and the Crown right to stand aside 
Challenge for cause 
1 The Juries Act 2000 (Vic) should specify: • the grounds on which a challenge for cause can be founded • the process for conducting a challenge for cause. 
Peremptory challenges and stand asides should be retained 
2 Peremptory challenges and the Crown right to stand aside should be retained for criminal jury trials. Peremptory challenges should be retained for civil jury trials. 
Reducing the number of challenges available 
Criminal trials 
3 The number of peremptory challenges available to a single accused in a criminal trial should be reduced from six to three. 
4 Where there is more than one accused, each accused should be entitled to exercise two peremptory challenges. 
5 The number of stand asides available to the Crown in a criminal trial should be equal to the total number of peremptory challenges available to all the accused persons for that trial. 
Civil trials 
6 The number of peremptory challenges available to each separately represented party in a civil jury trial should be reduced from three to two. 
7 Where there are multiple separately represented plaintiffs or defendants who do not consent to join in their peremptory challenges, adjustments to the number of challenges should be made to ensure that the plaintiff/s have an equal total number of challenges to the total number available to the defendant/s, or as close to an equal number as is possible in the circumstances. To achieve this, where necessary the number of challenges available to the plaintiff/s or defendant/s should be increased to match the number available to their opponents. 
The effect of the Crown right to stand aside 
8 A prospective juror who is stood aside by the Crown should be permanently removed from the ballot for that trial. 
Peremptory challenge process 
Criminal trials 
9 Prospective jurors should not be required to parade in front of the accused. Judicial officers should ensure that the accused and their legal representatives have the opportunity to see prospective jurors as their names are balloted, and have a reasonable period of time in which to exercise their challenges. 
10 Prior to the empanelment, the accused should be given the option as to whether they wish to exercise their challenges personally or through their legal representatives. 
Civil trials 
11 Judicial officers should direct barristers and solicitors to sit facing the panel so they do not need to turn around each time a prospective juror is balloted. 
Calling of the panel by name or number 
Name or number 
12 Prospective jurors should be identified in court by number only. 
Calling of the panel 
13 If Recommendation 12 is adopted, the Juries Act should be amended to provide that the panel should always be called in court. 
Additional jurors 
Balloting off or enlarged jury 
14 Section 48 of the Juries Act 2000 (Vic) should be repealed. 
Guidance on the empanelment of additional jurors 
15 To regularise the empanelment of additional jurors there should be statutory criteria guiding the discretion to empanel additional jurors. These should include: • the length of the trial • the nature of the trial • any other factor that may impact on juror attrition. 
The definition of ‘majority verdict’ 
16 A ‘majority verdict’ should be defined as the agreement of all jurors except one for both criminal and civil trials. 

Survivor Fraud

The Age reports on another instance of survivor fraud, this time involving a supposed tsunami survivor  with the usual heroic tale of endurance and over-achievement.
Chris Dawn-Manuel touched hearts with his story of the orphaned teenager "crippled by grief and guilt" because he alone survived the 2004 Boxing Day tsunami while his family perished on the Indian coast.
He was the child left to beg on the streets of Chennai – bullied, branded by gang violence and nurtured on crime – yet he endured for years to scrounge an existence.
Dawn-Manuel even saved enough money to educate himself and complete a degree in India and, from 2010 in Australia on a student visa, achieve another at Monash University.
But this uplifting tale of ruin to recovery has now been exposed by diligent police as a pack of lies.
Not only are his parents and brother alive, but he participated in two sham marriages in Melbourne – with a third ceremony proposed – ran an illegal brothel in South Yarra and forged a psychiatric report for an earlier court appearance.
Fortunately no references to long-distance treks through the snow accompanied by wolves.

The Age reports that Dawn-Manuel referred to his supposed history in pleading guilty to "sophisticated deception and false identity charges involving $660,000".
The first doubts about its authenticity emerged when prosecutor Temple Saville announced at the end of Mr Farrington's plea that investigators had material "contrary" to Dawn-Manuel's story.
Judge Gaynor declared she wanted the matter resolved and adjourned the hearing for investigation. When it resumed last week, and with lead investigator Senior Detective Simon Hunter's explosive new statement in her hands, Judge Gaynor exclaimed: "God bless my soft, little old heart."
"I was so sorry for him," she said of her first reaction to his early life. " ... come in, spinner", she added ruefully. "It's like a doorstopper novel ... it's amazing," Judge Gaynor said of the "complete and utter fraudster". ...
Detective Hunter stated that throughout the investigation by members of the Heidelberg crime investigation unit it was apparent Dawn-Manuel was "skilled in the art of deception" or "fabricating stories to suit his needs". Detective Hunter said it was "completely implausible" that as a beggar he finished school, attained a degree in India and then came to Australia to undertake another at Monash.
Instead, he had been "raised in a well-off and respected family", given a good education and the chance to study in Australia but voluntarily committed crimes for his own benefit.
He had shown no remorse for his actions and "continues to fabricate lies and stories to diminish his responsibility and accountability".
Dawn-Manuel pleaded guilty to three charges of obtaining a financial advantage by deception, three of attempting to do so and one of possessing identity information.  The Crown argued that during 2012 and 2013 he
created an identity fraud scam by obtaining information, partly through Optus mobile phone application contracts, which held names, addresses, employment details and contact phone numbers. He used this information to apply for credit cards online through GE Capital Finance, NAB and ANZ by including accurate personal details of the "applicants", created fictitious email addresses and had the credit cards and PINs mailed to vacant rental properties where he collected them. 
He is reported to have obtained 45 credit facilities with a combined value of $660,500 and tried to get more with a total value of $858,999. He used the fake authority to buy goods and recruited others as "shoppers" to buy for him. A police search of his home  found 48 credit cards and 65 fake driver's licences in various names with pictures attached of him or of the "shoppers".

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.