Crimes (Mental Impairment and Fitness for Trial) Act (Victoria) R v Fitchett [2009] VSCA 150 Buchanan, Vincent and Ashley JJA

Abstract

There is a concern that juries may find it difficult to deliberate upon the issue of an accused person's soundness of mind at the time of an alleged offence without being distracted by a fear that if a verdict of not guilty on the ground of insanity is returned, the accused, who the jury may consider should be kept in custody for protective purposes, may be set free. In an important appellate decision, the Victorian Court of Appeal in R v Fitchett [2009] VSCA 150 considered the proper instructions to be given to the jury when a defence of “mental impairment” is raised. The Court of Appeal held that since the changes made by s 22(2) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic), the common law approach previously stipulated by the High Court in R v Lucas [1970] HCA 14 had been supplanted in Victoria.

The potential procedural problems created by reversing the evidentiary onus of establishing the defence of mental impairment and the alternatives of judge-only trials or an inquisitorial model (as occurs in coroners' inquests, commissions of inquiry and the Queensland Mental Health Court) are discussed.

Key words:

• insanity
• mental impairment
• jury instructions

Notes

1. Homicide Act 1957 (UK) s 2(1), Criminal Code Act 1899 (Qld) s 304 A, Criminal Code (NT) s 37, Crimes Act 1900 (ACT), Crimes Act 1900 (NSW) s 23A. See also Defences to Homicide – Final Report (Victorian Law Reform Commission 2004)< http://www.lawreform.vic.gov.au/wps/wcm/connect/b151a200404a0e8e9c86fff5f2791d4a/FinalReport.pdf?MOD=AJPERES> accessed 7 June 2010; and Partial Defences to Murder: Diminished Responsibility – Report no 82 New South Wales Law Reform Commission < http://www.lawlink.nsw.gov.au/lrc.nsf/pages/R83TOC> accessed 7 June 2010>.

2. See Criminal Procedure Act 2004 (WA) Part 4 Div 7, Criminal Code 1899 (Qld) Chapter 62 Division 9A (assented to on 19 September 2008).

3. < http://www.health.vic.gov.au/mentalhealth/mhactreview/termsofref.pdf> accessed 7 June 2010.