The Law Handbook 2024

Chapter 8.3: Disability and criminal justice 809 Drug Court – Melbourne Magistrates’ Court 233 William Street, Melbourne Vic 3000 Tel: 9628 7983 Email: drugcourtmelbourne@courts.vic.gov.au Drug Court – Shepparton Magistrates’ Court 18 High Street, Shepparton Vic 3630 Tel: 9087 5723 Email: drugcourtshepparton@courts.vic.gov.au Koori Court The Koori Court and Children’s Koori Court seeks to empower Aboriginal and Torres Strait Islander peoples by offering greater, positive participation of members of the Koori community in the court process and the administration of the law. This participation aims to reduce perceptions of cultural alienation and to ensure sentencing orders are appropriate to the cultural needs of Koori offenders. The Koori Court aims to: • increase Koori ownership of the administration of the law; • increase positive participation by Koori offenders; • increase the accountability of Koori offenders, families and community; • encourage defendants to appear in court; • reduce the amount of breached court orders; • deter offenders from re-offending; • increase community awareness about community codes of conduct and standards of behaviour; • explore sentencing alternatives to imprisonment. Koori Courts are located at the Magistrates’ Courts in Bairnsdale, Bendigo, Broadmeadows, Dandenong, Geelong, Hamilton, Heidelberg, Latrobe Valley, Melbourne (CBD), Mildura, Portland, Shepparton, Swan Hill, Wangaratta, Warrnambool and Wodonga. The Magistrates’ Court Practice Direction No. 11 of 2022 sets out the process for referring matters to the Koori Court. The Children’s Koori Court is currently sitting in Melbourne, Heidelberg, Dandenong, Mildura, the Latrobe Valley, Bairnsdale, Warrnambool, Portland, Hamilton, Geelong, Swan Hill and Shepparton. Koori Court Web, Magistrates’ Court: www.mcv.vic.gov.au/about/ koori-court Web, Children’s Koori Court: www.childrenscourt.vic.gov. au/jurisdictions/koori-court Fitness to stand trial and the defence of mental impairment Overview It is presumed at law that a person appearing before a court has the capacity to enter a plea. Generally, most people with an intellectual or psychiatric disability can plead in a court, but sometimes they cannot. In this situation, it is the obligation of the party who is asserting that the relevant person is unable to enter a plea to prove this assertion, and therefore rebut the presumption (i.e. show it does not apply). The law in relation to fitness to plead – including the common law defence of insanity, and the legal status of indefinite detention at ‘the Governor’s pleasure’ – was reformed by the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) (‘ CMIUT Act ’). The CMIUT Act: • defines the criteria for determining if a person is unfit to stand trial; • replaces the common law defence of insanity with a statutory defence of ‘mental impairment’; • provides new procedures for dealing with people who are unfit to stand trial or are found not guilty because of mental impairment. Fitness to stand trial Under section 6 of the CMIUT Act, a person is unfit to stand trial for an offence if their mental processes are so disordered during the trial that they are unable to: • understand the nature of the charge; • enter a plea to the charge and exercise the right to challenge jurors or the jury; • understand the nature of the trial (i.e. that it is an enquiry into whether or not the person committed the offence); • follow the course of the trial; • understand the substantial effect of the prosecution’s evidence; or • give instructions to their legal practitioner. Note that a person who is suffering frommemory loss is considered fit to stand trial (s 6(2) CMIUT Act).