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CRIMES (MENTAL IMPAIRMENT AND UNFITNESS TO BE TRIED) BILL
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18 September 1997
Second Reading
WADE
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CRIMES (MENTAL IMPAIRMENT AND UNFITNESS TO BE TRIED) BILL
Second reading
Mrs WADE (Attorney-General) -- I move:
That this bill be now read a second time.
This is a bill to abolish what is known as the Governor's pleasure system and to
establish new procedures to deal with persons who are presented for trial before
the County Court or the Supreme Court charged with an indictable offence and who
are found to be unfit to be tried or not guilty on the ground of mental
impairment. The bill provides for the courts, rather than the executive, to be
responsible for making highly sensitive release decisions.
Background
The current legislation governing the detention, management and release of
persons found by a court to be either unfit to plead or not guilty on the ground
of insanity is contained in the Crimes Act 1958, the Corrections Act 1986, the
Mental Health Act 1986 and the Intellectually Disabled Persons' Services Act
1986.
Such persons must be ordered by the court to be kept in strict custody until the
Governor's pleasure is known. The court does not have a discretion in this
respect. A Governor's pleasure order can be
revoked only by the Governor of Victoria, acting on the advice of the Premier
after a decision has been made by cabinet.
Page 185
The initial recommendation for release comes from the Adult Parole Board, which
has a duty under the Corrections Act to prepare an annual report on each
Governor's pleasure detainee and to forward those reports to the Minister for
Corrections, who in turn forwards them to the Attorney-General. The current
system is generally recognised as antiquated and unjust for the following
reasons:
it does not provide for the evidence against persons who have been found
unfit to plead to be tested, but rather provides that the court must
immediately order that they be detained at the Governor's pleasure;
it is inappropriate that release decisions are made by the executive and
may therefore potentially be subject to political considerations.
The impetus for this bill arose from two main sources.
In 1995 the Model Criminal Code Officers Committee was given a reference by the
Standing Committee of Attorneys-General to prepare model legislation to reform
the law in relation to the Governor's pleasure system. The committee is
comprised of officers from all Australian jurisdictions and prepared the Mental
Impairment and Unfitness to be Tried (Criminal Proceedings) Model Bill.
In October 1995 the Victorian parliamentary Community Development Committee
tabled in Parliament its report entitled Inquiry into Persons Detained at the
Governor's Pleasure. The committee was given a reference by state cabinet to
inquire into, consider and make recommendations about the appropriateness of the
current legislation governing the detention, management and release of persons
found by a court to be either not guilty on the ground of insanity or unfit to
plead. The government response to that report was tabled in June 1996.
I take this opportunity to thank the Community Development Committee for its
excellent work, which was of invaluable assistance in preparing this
legislation.
Overview of bill
The bill has the following aims:
to transfer responsibility for release decisions of detainees from the
Governor in Council to the judiciary;
to provide for a special hearing process to be undertaken in respect of
persons who are unfit to be tried to enable the evidence of the
prosecution to be tested;
to provide for notification to and consultation with the next of kin of
the alleged offender and the victim where the court is considering
releasing the person or substantially reducing the degree of supervision
to which the person is subject;
to vest the trial court with the power to make the most appropriate
order in the circumstances rather than having no option but to order
detention at the Governor's pleasure as required under the current
regime;
to require regular reporting to the trial court where the court has
ordered that a person be subject to a supervision order under the bill
-- this is to ensure these people are not lost in the system;
to require leave decisions to be made by a specially constituted panel
to be chaired by a judicial member -- this will ensure the leave process
is transparent and accessible;
to set a nominal term (in accordance with the table set out in the bill)
where a supervision order is imposed as a further safeguard against a
person being forgotten about. If a person is still subject to a
supervision order at the expiration of the nominal term the court of
disposition must conduct a major review into the person's case to see
whether the person should in fact be released or at least have the
degree of supervision to which the person is subject reduced; and
to set out the matters to which a court should have regard and, in so
doing, to strike the appropriate balance between the protection of the
community on the one hand and the clinical or therapeutic needs of the
person on the other.
Unfitness to be tried
The bill provides that if a jury finds a defendant is unfit to stand trial, the
trial judge must determine whether or not that person is likely to become fit to
stand trial over the next 12 months. If the person is
likely to become fit and in fact does become fit the trial will resume.
Page 186
If the person remains unfit to be tried or is not likely to become fit within 12
months a special hearing must be conducted to determine whether, despite the
unfitness of the person to stand trial, the person is (a) not guilty, (b) not
guilty on the ground of mental impairment, or (c) the person committed the
offence. This procedure will replace the current system whereby persons are not
given an opportunity to become fit nor to have the evidence against them tested.
Where a person is found to be not guilty at a special hearing this is to be
treated as though it were a finding of not guilty at a trial and the person must
be released.
Disposition options
Where the person is found to be either not guilty on the ground of mental
impairment or to have committed the offence, the judge will have a discretion as
to the appropriate order to make in the circumstances. The judge may either
unconditionally release the person or order that the person be subject to a
supervision order. If the judge orders that the person be subject to a
supervision order that order may be declared to be either custodial or
non-custodial, depending on the particular circumstances of the case.
Where the court is considering imposing a supervision order it will be required
to obtain a certificate of available services from the Department of Human
Services in order to inform itself of appropriate options for disposition. A
person in respect of whom a supervision order is to be imposed is not to be
detained in a prison unless there is no practicable alternative.
Nominal term and major review
As a means of providing the trial court with a further power of review, when a
court imposes a supervision order it must also specify the nominal term
applicable to the offence as set out in a table in the bill. The nominal term is
life where the offence charged is murder; it is the statutory maximum where the
offence is a serious offence within the definition of `serious offence' in the
Sentencing Act 1991; and in respect of other offences the nominal term is the
equivalent of half the statutory maximum sentence for that offence.
At the conclusion of the nominal term a major review is to be conducted by the
trial court in respect of a person who is still subject to a supervision order.
In the case of persons with sentences of a nominal term of life imprisonment a
major review is to be conducted at the end of 25 years. At a major review the
court must consider whether it is still appropriate that the person be subject
to a supervision order or whether the person ought to be unconditionally
released.
Variation or revocation of a supervision order
In addition to the major review, the bill provides that an application for
variation or revocation of a non-custodial supervision order can be made to the
trial court at any time by a person who is subject to the order or someone who
has supervision of the person. A person who is subject to a custodial
supervision order will be able to apply at any time for a variation of the order
but cannot have the order revoked unless it has first been varied to a
non-custodial order. Further, the court must not revoke a supervision order
unless the order has been of a non-custodial nature for at least 12 months.
This procedure recognises that the treatment or reintegration of persons with a
mental disorder is most appropriately considered on a gradual basis. In some
cases the transition from a custodial order to unconditional release may result
in instability of a person's mental condition.
The bill provides for a high degree of flexibility in terms of treatment, the
provision of services and the degree of supervision to which a person is subject
in order to facilitate the tailoring of appropriate conditions in each
individual case.
Leave provisions
The bill establishes a new procedure for granting leave to people who are
subject to custodial supervision orders. It also establishes a new body to make
these decisions. One of the problems of the current leave process identified by
the Community Development Committee was that leave decisions were opaque and
that the Office of Correctional Services was inappropriately represented on an
advisory council. This advisory council was established to assist the chief
psychiatrist in making leave decisions for persons in a mental health facility,
but the council has no legal authority.
The bill will establish the Forensic Leave Panel, which will be responsible for
granting certain types of leave to persons who are subject to a custodial
supervision order under the bill and who are detained in either an approved
mental health facility or a specified residential institution or facility. The
panel may grant leave to the person to move beyond the place of custody (which,
for example, would be a ward in the case of a forensic psychiatry centre) within
the defined surrounds of the place of custody.
The panel will also be able to grant leave enabling the person to go beyond the
grounds of the place within certain limitations, but not so that the person is
effectively released from custody. The panel will be able to grant these types
of leave for periods of up to six months. This will enable six-month plans to be
prepared in respect of forensic patients or forensic residents to best assist
them in their response to treatment and services.
Page 187
Special leave, which may be granted in exceptional circumstances for a maximum
of 24 hours, is to be granted by the person having immediate responsibility for
the person. In the case of forensic patients -- the term that will apply to
persons detained in mental health facilities -- this will be the authorised
psychiatrist. In the case of forensic residents -- the term that will apply to
persons receiving services from intellectual disability services -- this will
ostensibly be the Secretary of the Department of Human Services. This power may,
however, be delegated to the person in charge of each residential institution or
service.
The panel is to be constituted by one or more judges of each of the Supreme and
County courts, the chief psychiatrist and such other members as are necessary
from time to time. These other members may be forensic experts in the fields of
psychiatry and psychology and community representatives with relevant experience
or qualifications.
Each sitting of the panel is to be chaired by a judge of the court before which
the person was originally presented for trial.
The procedure of the Forensic Leave Panel will be transparent and applicants
will have a right to appear before the panel and may be assisted by a family
member or legal representative.
Extended leave to be granted by the courts
Leave that will effectively allow a person to live within the community is to be
called extended leave and can be granted only by the court. This will ensure
these types of leave decisions will be open to public scrutiny. Extended leave
may be granted for periods of up to 12 months at a time and may be granted more
than once.
Extended leave is another means of ensuring that treatment or reintegration is
facilitated on a gradual basis to ensure that the needs of the person on the
supervision order can be appropriately addressed. Extended leave is a step on
the way to a revocation.
Terminology
The term `insanity' has been replaced by the term `mental impairment' because
the former term is antiquated and carries an historical stigma. However, it is
important to note that the bill does not alter the existing common law in
relation to determining criminal responsibility or unfitness to be tried. The
common-law test of insanity derives from the McNaughten rules of 1843 and the
test for unfitness derives from the decision of the Supreme Court in R v.
Presser. Both these common-law tests have been incorporated into the provisions
of the bill.
The bill makes it clear that the new defence of mental impairment has the same
meaning as the defence formerly known as the defence of insanity and is to be
interpreted accordingly.
The change in terminology from `insanity' to `mental impairment' will also apply
to the summary jurisdiction. However, the new option to impose a supervision
order will not be available in the Magistrates Court jurisdiction. Likewise, the
new procedures for investigation into fitness and a special hearing will not
apply to the Magistrates Court jurisdiction.
Transitional provisions
In respect of current Governor's pleasure detainees the bill provides that they
are to be deemed to be subject to a custodial supervision order upon
commencement of the bill and to have a nominal term applicable in accordance
with the relevant provision in the bill. Those existing detainees who have been
granted leave prior to the commencement of the bill which but for the
commencement of the bill would have continued beyond the commencement of the
bill are deemed to have been granted leave which accords with or is
substantially the same as the types of leave available under the bill. The bill
also provides that existing detainees will have an immediate right to apply to
the court for a variation of their order to a non-custodial order or a
revocation of their order where they have been on the equivalent of extended
leave for at least 12 months.
Reporting requirements
Page 188
The bill also provides for a comprehensive system of reports to be prepared
about all persons who are subject to supervision under the bill. These reports
are required to be considered by the courts in determining whether to release a
person from custody or from supervision. The reports will assist the court in
understanding the nature of the person's mental impairment and the appropriate
order to impose. Annual reports are also required to be submitted to the court
in order to ensure that people who are subject to a supervision order are
regularly reviewed and are not lost in the system.
The bill gives due consideration to the issue of victims' rights. A victim
report may be presented to the court setting out the views of the victim and the
next of kin of the person charged with the offence. The report may outline the
person's conduct and the impact of that conduct on the person making the report.
Victim reports may be used for the purposes of assisting counselling and
treatment processes for all persons affected by the incident and to assist the
court in determining any conditions it may impose under the bill.
Statements under section 85 of the Constitution Act 1975
I wish to make two statements under section 85(5) of the Constitution Act 1975
explaining why clauses 79 and 82(1) would alter or vary section 85 of the act in
relation to the jurisdiction of the Supreme Court.
Clause 79
Clause 78(1) of the bill makes it clear that the current power of the County
Court and Supreme Court to make an order under sections 393 or 420 of the Crimes
Act 1958 that a person be kept in strict custody until the Governor's pleasure
is known is revoked. The current section 393 of the Crimes Act relates to people
who have been found unfit to plead. The current section 420 of the Crimes Act
relates to people who have been found not guilty on the ground of insanity.
Clause 79 is necessary as the bill provides for new procedures where a person is
found to be unfit to be tried or not guilty on the ground of mental impairment.
Clause 82(1)
Clause 82(1) amends section 361(4)(c) of the Crimes Act 1958 by inserting
references to a residential service within the meaning of the Intellectually
Disabled Persons Services Act 1986.
Section 361 of the Crimes Act provides for accused persons detained in a prison,
police gaol, youth training centre, youth residential centre or approved mental
health service to be removed to and from the place of detention to a court
without a writ of habeas corpus or any other writ being required. Clause 82(1)
extends the application of the provision to an accused who is in custody in a
residential institution. This clause is necessary to close a lacuna in the
legislation in relation to accused persons who are in residential institutions.
Conclusion
Current law has been inadequate and inappropriate in dealing with people who are
either unfit to be tried or not guilty on the ground of insanity. The role of
the executive in release decisions may have resulted in people remaining subject
to the stigma of a Governor's pleasure order for longer than either the alleged
offence or the degree of mental impairment would warrant.
Further, the procedure whereby persons who are unfit can be detained without the
evidence against them being tested is completely unacceptable. The government
believes this bill fundamentally redresses the injustices inherent in the
present system and will put in its place a system that is just and responsive to
the needs of the individual.
I commend the bill to the house.
Debate adjourned on motion of Mr HULLS (Niddrie).
Debate adjourned until Thursday, 2 October.