The _Crimes (Mental Impairment and Unfitness to be Tried) Act 1997_ (the act) outlines the law pertaining to when an accused person raises the defence of 'Mental Impairment'. The Legal Services Department processes for when this occurs in summary proceedings have been reviewed and are set out below. Please note, this is not a change in policy, just a reminder of the options available to Prosecutors. **Mental Impairment** If defence raise mental impairment pursuant to s.20 of the act, a few of the key considerations Prosecutors are to keep in mind are: - Mental impairment can be raised and argued in the Magistrates’ Court. - The question of whether a person was suffering from a mental impairment is a question of fact and is to be determined by the Magistrate on the balance of probabilities. - If mental impairment is raised and established in the Magistrates’ Court, the accused must be found not guilty. - There is no capacity for the Magistrates’ Court to make a supervision order in respect of the accused in these circumstances. If defence raises mental impairment, Prosecutors should take the following steps: 1. Request all reports, and evidence defence intend to rely upon to rebut the presumption pursuant to s.21(1) of the act. 2. Read and consider all the material supplied by defence. 3. Form a preliminary view as to whether mental impairment may be made out. - It is key to remember, **this does not require you to form a medical opinion.** - Therefore, as you would with any piece of evidence, you can form a legal opinion as to whether the legislative provision is satisfied. 1. Contact the Informant and ascertain their view. - Generally speaking, we as Prosecutors will have never had any contact with the accused. - Given the Informant is likely to have arrested and interviewed the accused they may have a preliminary view. 1. When reviewing the material supplied by defence, a non-exhaustive list of factors to keep in mind are: - Any report supplied by defence should identify which limb of s.20(1) of the act is met: Defence of mental impairment                                                (1) The defence of mental impairment is established for a person charged with an offence if, **at the time of engaging in conduct constituting the offence**, the person was suffering from a mental impairment that had the effect that—                                                               (a) he or she did not know the nature and quality of the conduct; or                                                               (b) he or she did not know that the conduct was wrong (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). - Was the accused deemed unfit for interview or apprehended under s.351 of the _Mental Health Act 2014_ at the time of the incident? This, in and of itself, does not mean the accused has a mental impairment, but it is an important indicator to keep in mind. - Does the report use the language of the act? - How much time has passed since the offending and the report being authored? Does the report make reference to the offending currently before the court? - How much time did the author spend with the accused? - What else did the author rely upon to write the report? (Medical records, justice health records, previous reports). Or is the report simply made up of statements made by the accused? - How was the accused’s behaviour in the lead-up to the offence? (Consider statements from relatives, other LEAP involvements, and mental health transfers) - What is the qualification of the author? - Does the author reference and acknowledge **Practice Note SC CR 3 Expert Evidence in Criminal Trials** and **Practice Note SC CR 7 Expert reports on mental functioning of an offender,** and assert something along the following lines? - _I acknowledge that I have read Practice Note SC CR 3 Expert Evidence in Criminal Trials and Practice Note SC CR 7 Expert reports on mental functioning of an offender and agree to be bound by the Codes and Practice Notes. The opinions expressed in this report are based on my specialised knowledge obtained through the study and experience outlined above/below/ in this report._ Once you have made these considerations you will likely reach one of three outcomes: 1. You are of the opinion the defence of mental impairment **may** be available to the accused. In this case, you should: 1. Liaise with your supervisor and inform them of your opinion. 2. In conjunction with these instructions, consider the DPP guidelines, relevant legislation, relevant VPMP/G provisions, Prosecutions Courts Branch SOPs and consider withdrawal of the charge/s. 3. In accordance with Prosecutions Courts Branch SOPs, the determination and authority to withdraw the charges are vested in a Prosecutions Court Branch sub-officer, or an authorised prosecutor who has completed the Graduate Certificate in Police Prosecution nominated by a Unit Manager, prior to withdrawing the charge unless to do so would unnecessarily delay the matter. 2. You are of the opinion the defence of mental impairment **is not** available to the accused. In this case, you should: 1. Liaise with your supervisor and inform them of your opinion. 2. As soon as practicable, contact defence and inform them of your position. 3. Advise defence the content of their report is not conceded and they will have to call the author to give evidence. 4. Cross-examine the author on the points included, but not limited to, those that were outlined in point 5. 5. Allow the court to decide on the evidence. 3. You are still **unsure** whether the defence of mental impairment is available to the accused. In this case, you should: 1. Liaise with your supervisor, and seek their opinion on the matter 2. Complete the attached form ‘Request for RTU Opinion – CMIUTA’ 3. Compile the reports, a copy of the brief in question, answers to any matters outlined in this email and a copy of the form ‘Request for RTU Opinion – CMIUTA’ 4. Email the above to [[email protected]](mailto:[email protected] "mailto:[email protected]") and you will receive an opinion within 4 weeks of submission. 5. Please note, any opinion offered by RTU is **not** a binding instruction.  The determination and authority to withdraw the charges are vested in a Prosecutions Court Branch sub-officer, or an authorised prosecutor who has completed the Graduate Certificate in Police Prosecution nominated by a Unit Manager, prior to withdrawing the charge. Please also find the link to the CMIUTA Training on SharePoint  [Mental Impairment & Unfitness to be Tried](https://victoriapolice.sharepoint.com/:f:/r/sites/department-legalservices/Shared%20Documents/RTU/Training%20Materials/Mental%20Impairment%20%26%20Unfitness%20to%20be%20Tried?csf=1&web=1&e=EvaJYv&xsdata=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%3D%3D&sdata=N241OGNzT3B5dzl0Vm1RTTg0ODVlNWZYTXRSa1BEWWZ0amRtR1QrdWt3Zz0%3D&ovuser=59aab5f9-7fdb-4dfd-89dd-0f4a2651f587%2CNathan.Haymes%40police.vic.gov.au "https://victoriapolice.sharepoint.com/:f:/r/sites/department-legalservices/shared%20documents/rtu/training%20materials/mental%20impairment%20%26%20unfitness%20to%20be%20tried?csf=1&web=1&e=evajyv&xsdata=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%3d%3d&sdata=n241ognzt3b5dzl0vm1rttg0odvlnwzytxrsa1bewwz0amrtr1qrdwt3zz0%3d&ovuser=59aab5f9-7fdb-4dfd-89dd-0f4a2651f587%2cnathan.haymes%40police.vic.gov.au").