It is presumed at law that a person appearing before a An independent body that hears legal claims brought by parties and decides between them. Serious cases are heard by a judge and jury, or just a judge. Less-serious cases are heard by a magistrate. has the The ability to understand and be held responsible by the law for your actions. It also refers to a person’s ability to understand and agree to something, such as to undergo medical treatment. Full legal capacity is reached at 18 years of age, when a child becomes an adult. 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 A person or organisation directly involved in a court case. Parties include the plaintiff or applicant, the defendant, and any third party added to the action, but not independent witnesses. 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 An answer to a criminal charge or other wrongdoing, based on a precedent that has developed from decisions in court cases, rather than being set out in legislation (a statutory 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) A written law made by parliament. Also called an ‘Act of parliament’, ‘statute’ or legislation. 1997 (Vic) (‘CMIUT Act’).
The CMIUT Act:
- defines the criteria for determining if a person is unfit to stand trial;
- replaces the (1) The system of law developed by the English courts through precedent and adopted in ‘common law countries’ in the British Commonwealth (as opposed to Roman law (civil law) or ecclesiastical law). (2) The case law made by judges in that system. (3) Case law that is not part of the law of equity. (4) Historically, the rules of law common to all people in England, as distinct from local or customary laws. (1) A defendant’s response to the legal claims made against them in court by a prosecutor or plaintiff. (2) A lawful excuse for conduct: for example, causing minor injuries to someone while saving them from certain death. (3) ‘The defence’ is also a way of referring to the defendant and their legal team. of insanity with a Protection against being sued that is stated in legislation. The defence stops a person being found liable in court. For example, a person who is giving evidence in court is can say things would be defamation if they said it anywhere else. 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 A criminal act prohibited by state or commonwealth criminal law. An offence is either a summary offence (minor) or an indictable offence (serious). if their mental processes are so disordered during the trial that they are unable to:
- understand the nature of the (1) A statement giving the details of a crime an accused person is claimed to have committed. (2) A personal property security. (3) A judge’s directions to a jury at the end of a case.;
- enter a plea to the charge and exercise the right to challenge jurors or the A panel of people selected from the general public to decide whether an accused in a criminal case is guilty or not guilty, or to decide questions of fact and the amount to be awarded as damages in civil cases.;
- 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 Material presented to a court to prove or disprove a fact. It can include what witnesses say as well as documents and other objects.; or
- give instructions to their legal practitioner.
Note that a person who is suffering from memory loss is considered fit to stand trial (s 6(2) CMIUT Act).
When a person is found unfit to plead – and the judge determines that the A person who has been charged with a criminal offence or against whom a civil action has been brought. is unlikely to become fit within the next 12 months – a court may To postpone a court case, to move the hearing to another time or another day. Also referred to as ‘standing over’, as in ‘standing the matter over’ or ‘standing down’. If a case is adjourned indefinitely it can only be brought back if one of the parties applies to the court. This was formerly called adjournment sine die. the matter or hold a special The time and place at which a court or tribunal hears the parties argue their case and makes a decision. (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 A document that sets out what a person wants to happen to their money and other property after they die. attempt to have the matter heard in a higher court where a custodial or non-custodial An order the Children’s Court may impose upon a young person found guilty of an offence. Under this order, the young person will be supervised by a probation officer and will have to obey any other conditions the court imposes upon them. These conditions can be placed on the young person’s parents or persons with whom the young person is living. Also, a supervision order requires a person arguing substantial mental impairment in a serious criminal case to be admitted to a mental institution. (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 CMIUT Act). 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 Claimed but not proved. For example, the police can allege in court that a car was stolen, but they then have to prove it with evidence. If you say a person did something illegal you are making an allegation. Unless you can back it up, you will not be able to win a court case about it. 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 A person who has committed a crime. with a disability could use the Charter – the right to liberty (s 8) or Money or property promised to be handed over as a guarantee for repayment of a loan, or as a guarantee that a defendant will meet their bail conditions. (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.)