The Law Handbook 2024

810 Section 8: Disability, mental illness and the law Procedures When a person is found unfit to plead – and the judge determines that the defendant is unlikely to become fit within the next 12 months – a court may adjourn the matter or hold a special hearing (ss 12– 18 CMIUT Act) to determine whether the person would be found: • not guilty of the offence; • not guilty because of mental impairment; or • to have committed the offence. Under the CMIUT Act, a finding that the person committed the offence constitutes a qualified finding of guilt only. In the Magistrates’ Court, if a person is found not guilty because of mental impairment, they must be discharged by the court. However, there is a risk that the Office of Public Prosecutions will attempt to have the matter heard in a higher court where a custodial or non-custodial supervision order (with conditions) can be made. This is a serious risk, and there are important legal factors that must be considered in raising this defence in the higher courts. Defence of mental impairment Where there is a connection between the action for which the person is charged and their mental impairment, they may be eligible for a defence of mental impairment (s 20 CMIUTAct). If this defence is established, that person must be found not guilty because of mental impairment. A defence of mental impairment requires the client’s instructions and evidence from a treating practitioner, that at the time of the offence, the person was experiencing a mental impairment that had the effect that: • the person did not know the nature and quality of the conduct; or • the person did not know that the conduct was wrong (i.e. they could not reason with a moderate degree of sense and composure about whether the conduct, as perceived by reasonable people, was wrong). An assessment of the offender’s mental state must take place as soon as possible after the alleged crime. If a report is not obtained as soon as possible, this could jeopardise a successful defence, as a report obtained significantly later than the alleged offence may not be relevant enough for a successful defence. If a report was not obtained as soon as possible, an offender with disability could use the Human Rights Charter – the right to liberty (s 8) or security (s 22). It is vital for a person to have proper legal advice about the defence of mental impairment, given the serious legal implications, especially if the matter is heard in the higher courts. (See Chapter 2.4: Legal services that can help.) Custodial and non- custodial supervision orders Making a supervision order A person found not guilty by reason of mental impairment at a criminal trial in the County Court or Supreme Court must then be declared eligible to be supervised or be released unconditionally (s 23 CMIUT Act). If a court declares a person to be eligible for supervision, it must either make a custodial supervision order or a non-custodial supervision order (s 26 CMIUT Act). These types of orders last indefinitely unless revoked (s 27 CMIUT Act). However, the court must fix a nominal term for both types of supervision orders. The nominal term is set out in section 28 of the CMIUT Act – this section must be read in conjunction with the Crimes Act (Vic). The effect of a nominal term is described below. A person who is subject to a custodial supervision order and who is detained in custody in a designated mental health service is classified as a forensic patient under the Mental Health Act 2014 (Vic) (‘ MHA 2014 ’). Or – if they are detained in a residential treatment facility – they are classified as a forensic resident under the Disability Act 2006 (Vic) (‘ Disability Act ’) (see ‘Intellectual disability’, below). People who are subject to supervision orders under the Crimes Act 1914 (Cth) (‘ Crimes Act (Cth) ’) are referred to as ‘federal forensic patients’. Provisions relating to supervision orders for people with an intellectual disability have been added to the Disability Act to ensure that people receive appropriate assistance from intellectual disability services (see Chapter 8.5: Guardianship and medical treatment).