Protecting victims in mental impairment cases

Victims in cases heard under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) need enhanced rights

Mental impairment matters are governed by the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) (CMIA). The CMIA applies when an accused is found to have been mentally impaired at the time they committed the crime or if an accused is unfit to stand trial.  

The CMIA process is complex and confusing, with many victims feeling left in the dark experiencing: 

• lack of access to information 
• lack of participation during decision making processes 
• lack of consideration for their safety.   

More needs to be done to ensure victims in these matters have the right to information, support and safety.  

The lack of engagement and participation can lead to many victims feeling a sense of injustice. Victims have described the CMIA process as causing significant anger, distress and feeling like a major injustice.  

While an accused’s mental impairment means that they are not guilty of a criminal offence, the victim is still a victim of a crime. 

The main issues raised by victims with respect to mental impairment are: 

• gaps in information provision throughout the criminal justice and offender treatment processes 
• a perceived lack of consideration for victim’s safety and wellbeing in treatment decisions, and limited avenues for victims’ voices to be heard or considered 
• a perceived lack of rigour and independence regarding assessment processes for mental impairment matters. 

There is currently no avenue for victims’ voices, including their views on safety, to be considered during the forensic leave process. Victims of crime feel that they are not adequately informed and consulted, and that there is little transparency in decision making. 

Strengthened requirements to inform and notify victims , specifically prior to the granting or varying of any leave, should be available to victims in the CMIA scheme. Victims should also be able to make submissions to the Panel in relation to the granting or varying of leave, and decision makers should be required to have regard to the views contained in victims’ submissions when granting or varying leave. 

The CMIA should be amended to include a positive obligation on the Panel to seek a victim’s views before making leave decisions. 

The VOCC also advocates for a strengthened victim notification and participation framework to be embedded within both the CMIA and the Victims’ Charter. This legislative framework should ensure decisions are made with more consideration and acknowledgement of the harm caused to victims of crime and their ongoing fears for their safety. 

The VOCC advocates for a strengthened victim notification and participation framework to be embedded within the CMIA so that victims not only have a right to put forward their views on leave, but that they are made aware of this right and can participate where this is their wish.  

To supplement improved victim notification and participatory rights under the CMIA and the Victims’ Charter, the Victorian Government should also establish a dedicated, specialised victim support stream for victims dealing with mental impairment matters. 

A specialised stream of assistance for CMIA victims would ensure victims are adequately supported throughout the CMIA and leave processes, including having enough specialised support to participate meaningfully in the forensic leave decision-making process.