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Thursday, 3 September 2009

R v Fitchett: not guilty by reason of mental impairment

A couple of months ago I posted about the tragic circumstances in R v Fitchett [2009] VSCA 150.

The case raised some issues to do with the application of the Crimes (Mental Impairment and Fitness to be Tried) Act 1997. Most importantly, the case affirmed that a jury should be told what the potential effects of a finding of not guilty by reason of mental impairment will be (specifically, the ability of the County and Supreme Courts to make custodial and non-custodial supervision orders).

The requirement that the jury be advised of the possible consequences of their verdict is required by s 22(2) and is thought to minimise the risk that a jury would consider that a not guilty finding would result in a potentially dangerous person being released into the community.

New sample jury directions and Bench Notes for the higher courts are available in the Judicial College of Victoria's Criminal Charge Book.

This doesn't change anything in the summary jurisdiction. By virtue of s 5 of the Act, if the Magistrates' Court finds a person not guilty by reason of mental impairment the charge must be dismissed, and no sentencing alternatives arise.

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