7. Fitness to be Tried & Mental Impairment (CMIA) — Exam Cheat Sheet (Vic)¶

Scope and currency

Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) (CMIA) · Australian English · current to 2 July 2026

Keep the two doctrines apart by time.

Fitness is about the accused's mental state at trial (can they understand and participate — s 6).
Mental impairment is a defence about the accused's mental state at the time of the offence (s 20).

Each is presumed against the accused: presumed fit (s 7); presumed not impaired (s 21(1)). Both are decided on the balance of probabilities.

CURRENCY — fitness is currently JUDGE-ALONE (temporary Division 2)

From 26 April 2021 until s 10 is substituted, Division 2 of Pt 2 applies: fitness is determined by a judge alone on the balance of probabilities (s 14C), and the jury requirement in s 7(3)(b) is suspended (ss 5C(1), 14B(2)). Division 2 auto-repeals when s 10 is substituted (s 14K), reviving jury determination. Confirm Division 2 is still in force on exam day.

1 · Fitness to be tried — s 6 (the Presser criteria)¶

FIT Unfit if, because of disordered or impaired mental processes, the accused is/will be unable to — s 6(1)

Presumed fit (s 7); rebutted only on an investigation under the CMIA. → (a) understand the nature of the charge; → (b) enter a plea and exercise the right to challenge jurors or the jury; → © understand the nature of the trial (an inquiry into whether they committed the offence); → (d) follow the course of the trial; → (e) understand the substantial effect of prosecution evidence; → (f) give instructions to their legal practitioner. (Memory loss alone is not unfitness — s 6(2).)

• Source: CMIA s 6; the common-law Presser criteria, approved in Ngatayi v The Queen (1980) 147 CLR 1 and Eastman v The Queen (2000) 203 CLR 1.

• Two-part test:

(1) the accused currently has, or will during the trial have, at least one s 6(1) incapacity; AND

(2) that incapacity is caused by impaired or disordered mental processes.

• Onus: presumed fit; the party raising fitness bears the onus of rebutting the presumption (s 7(4)); if the judge raises it, the prosecution has carriage but no party bears the onus (s 7(5)).

• Standard / decider: balance of probabilities; under temporary Division 2, determined by a judge alone (s 14C) — s 7(3)(b) jury role suspended.

• Comprehension, not skill: the accused need not be able to make an able defence or act in their own best interests — the test is applied in a reasonable, commonsense way (Eastman; Ngatayi).

• Key authorities: R v Presser [yr?]; Eastman v The Queen (2000) 203 CLR 1; Ngatayi v The Queen (1980) 147 CLR 1; Heffernan v The Queen (2005) 194 FLR 370; Kesavarajah v The Queen (1994) 181 CLR 230.

Fitness — traps to spot¶

• Mental illness is not enough: even severe delusional illness does not itself make an accused unfit — there must be a link between the disorder and the ability to understand/participate (Heffernan v The Queen (2005) 194 FLR 370; Eastman).

• Poor forensic choices are not enough: lack of insight, sacking counsel, refusing the MI defence, or bizarre/disruptive behaviour do not, of themselves, render a person unfit (Heffernan; Eastman; R v Bridge [2005] NSWCCA 122).

• Memory loss is not enough: s 6(2) — not unfit merely because of memory loss (R v Dennison).

• Complexity & assistance: fitness may turn on the trial's complexity, and counsel's assistance is taken into account (Ngatayi); an accused on the "cusp" may be fit with trial modifications (R v Wahlstedt).

• Future condition: assess present AND likely condition during the trial, including deterioration and accumulating stress in long trials (Kesavarajah v The Queen (1994) 181 CLR 230; R v Wilson).

2 · Investigation into fitness — ss 8–9, 14C–14F¶

INV When must the judge order an investigation? — s 9

Raise it at any stage — prosecution, defence or judge. → Trigger: a "real and substantial question" about fitness — which exists whenever a properly instructed tribunal could conclude the accused is unfit (s 9; Eastman v The Queen (2000) 203 CLR 1). → Runs to verdict: the obligation continues until the verdict; may require adjourning mid-trial, even after final addresses (Kesavarajah). → Failure = nullity: not investigating where a real and substantial question exists is a fundamental defect rendering the trial a nullity (Eastman).

• How it runs (judge alone): the court hears the parties' evidence and submissions (s 14D(1)(a)), may call evidence in the interests of justice (s 14D(1)(b)), and may order a medical/psychological examination.

• Standard: balance of probabilities (s 14C) — the up-to-date authority while s 7(3)(b) is suspended; available findings are fit or not fit (s 14E).

• From committal: the magistrate reserves fitness for the trial judge; if a real and substantial question exists, the investigation must commence within 3 months of committal (s 8). A magistrate has no power to discharge.

• During trial: the trial is adjourned or discontinued for the investigation (s 9(2)); a prior investigation does not bar another (s 9(3)).

3 · Outcome of unfitness & the special hearing¶

OUT Found unfit → the 12-month question (s 14F)

Will the accused likely become fit within 12 months? → Likely within 12 months: specify the period and adjourn (s 14F(2), replacing the suspended s 12(2)). → Not likely within 12 months: hold a special hearing under Part 3 within 3 months (ss 14F(5), 15).

Special hearing — s 16¶

• Nature: a trial by jury of the facts; the accused is taken to have pleaded not guilty (s 16(2)); run as far as possible like a criminal trial, and any defence (e.g. self-defence) may be raised.

• Three findings — s 17(1): not guilty; not guilty because of mental impairment (if raised); or that the accused committed the offence charged/an alternative — the word "guilty" is not used.

• Standard for "committed": beyond reasonable doubt (s 17(2)).

• Consent MI unavailable: the s 21(4) consent-MI procedure does not apply once a person is unfit — MI must go to a jury (SM v R [2013] VSCA 342).

• Effect of "committed": a qualified finding of guilt, not a conviction (s 18(3)(a)); it bars further prosecution and is appellable as if convicted (ss 18(3)(b), ©); the judge declares liability to supervision or orders unconditional release (s 18(4)).

4 · Mental impairment defence — s 20¶

MI Established if, at the time of the conduct, the MI had the effect that the accused — s 20(1)

Verdict if established: not guilty because of mental impairment (s 20(2)). → (a) Nature & quality: did not know the nature and quality of the conduct — unable to appreciate its physical nature and consequences (in murder, so little grasp of life that killing is like breaking a twig — R v Porter (1933) 55 CLR 182); OR → (b) Wrongness: did not know the conduct was wrong — could not reason with a moderate degree of sense and composure about whether it was wrong by the standards of reasonable people (Porter).

• Source: CMIA s 20 (replaced the common-law insanity defence, s 25); commenced 18 April 1998; codifies M'Naghten as restated in R v Porter (1933) 55 CLR 182.

• Two matters (defence proves, BOP):

(1) the accused had a mental impairment at the time of the acts; and

(2) it had one of the two s 20(1) effects (nature/quality, or wrongness).

• Crown still proves the conduct: the prosecution must prove beyond reasonable doubt that the accused did the act or omission constituting the offence (s 20(1); "conduct" — s 3(1)).

• Onus / standard: presumed not impaired (s 21(1), reflecting Sodeman v R (1936) 55 CLR 192); the party raising MI bears the onus of rebuttal (s 21(3)); proved on the balance of probabilities (s 21(2)(b)).

• Who decides: a question of fact for the jury (s 21(2)(a)), unless dealt with by a consent hearing (s 21(4)) or, in limited circumstances, the judge.

• Order of questions (Hawkins): resolve criminal responsibility (MI) before specific intent; if MI fails, psychiatric evidence remains admissible on whether the specific intent was in fact formed (Hawkins v The Queen (1994) 179 CLR 500, curing the "artificial reasoning" of R v Stiles (1990) 50 A Crim R 13).

• Key authorities: R v Porter (1933) 55 CLR 182; Hawkins v The Queen (1994) 179 CLR 500; Sodeman v R (1936) 55 CLR 192.

What counts as "mental impairment"¶

• Undefined = disease of the mind: the Act does not define it; held synonymous with the common-law "disease of the mind" / mental illness (R v Sebalj [2003] VSC 181; R v Gemmill [2004] VSCA 72; DPP v Taleski [2007] VSC 183).

• Sound/unsound-mind test: an unsound mind reacting to its own delusions or to external stimuli, vs a sound mind with a transient malfunction from external stimuli (R v Falconer (1990) 171 CLR 30; R v Radford (1985) 42 SASR 266).

• Is a disease of the mind: schizophrenia; brain injuries/tumours; hyperglycaemia; cerebral arteriosclerosis; some dissociation/epilepsy from brain damage (Falconer; R v Hennessy [1989] 1 WLR 287; R v Kemp [1957] 1 QB 399).

• Is not: concussion (R v Scott [1967] VR 276); hypoglycaemia from excess insulin (R v Quick [1973] QB 910); drug-induced psychosis (R v Sebalj [2006] VSCA 106; R v Martin [2005] VSC 518) — unless a lasting condition such as schizophrenia emerges.

• Intellectual disability: can constitute MI (R v R [2003] VSC 187 — ID with deafness), though whether ID is a "disease of the mind" is contested; the VLRC recommended expanding the definition to ID and ABI (2014).

Raising MI & the charge¶

• Who / when — s 22(1): MI may be raised at any time by the defence or the prosecution; if there is admissible evidence, MI must be left even if neither party seeks it (Hawkins v The Queen (1994) 179 CLR 500; post-empanelment s 22(2)).

• Prosecution raising MI: the Crown needs leave, but the judge has a very broad, "apparently unfettered" discretion to grant it wherever there is admissible evidence — even against the accused's wishes (R v Alford (No 2) [2005] VSC 405).

• Fitness/MI assessments protected: statements made by the accused to a psychiatrist for the express purpose of assessing fitness/MI cannot later be used by the Crown to prove guilt (R v Hassan [2004] VSC 85).

• Consent hearing — s 21(4): before empanelment, if both parties agree the evidence establishes MI, the judge may hear it and, if satisfied on BOP, record NGMI without a jury (R v Whelan [2006] VSC 319); not available where the accused is unfit (SM v R [2013] VSCA 342).

• Content of the charge — s 22(2): the judge explains the available findings (guilty / not guilty / NGMI) and their legal consequences (R v Fitchett [2009] VSCA 150), without prognosticating on disposition, punishment or public safety.

5 · Dispositions — supervision orders (shared: NGMI & "committed")¶

DISP NGMI or 'committed the offence' → liable to supervision OR unconditional release (ss 18, 23, 26)

→ Custodial supervision order (CSO): to an "appropriate place" (a designated mental health / residential service — s 3) on a s 47 certificate; or to prison only if there is no practicable alternative (s 26(4)). → Non-custodial supervision order (NCSO): release on court-specified conditions (s 26); may be made with the DPP as nominal supervisor even without a treatment aspect (Richards (No 2) [2017] VSCA 174). → Unconditional release: the court must have regard to the s 40(2) matters (including victim and family member reports).

• Indefinite term + nominal term: supervision runs until revoked (s 27(1)), subject to a nominal term (s 28): murder/treason 25 years (25 years for murder confirmed in DPP v Whelan (2006) 177 A Crim R 449); another Sentencing Act serious offence (not murder or threats to kill) — the offence's maximum; any other offence with a statutory maximum — half the maximum; otherwise a period set by the court. When setting the nominal term for a supervision order, the court must declare the day from which the nominal term runs. In declaring this commencement date, section 28(5) provides that the court may take into account any period of time during which the person was held in custody or detained in an appropriate place in relation to the proceedings leading to the supervision order. Akoka v R is relevant.

While a supervision order operates for an indefinite term, the court is mandated under section 28 to set a "nominal term". The nominal term acts as a critical statutory milestone that dictates the timeline for mandatory judicial scrutiny of the person's ongoing supervision and detention. Specifically, the court that made the supervision order must undertake a "major review" of the order at least three months before the end of the nominal term, and thereafter at intervals not exceeding five years for the duration of the order.

For a person subject to a custodial supervision order, section 35(3)(a)(i) creates a statutory presumption in favour of stepping down the level of restriction. During the major review, the court must vary the custodial order to a non-custodial supervision order unless it is satisfied on the available evidence that the safety of the person subject to the order or members of the public will be seriously endangered as a result of the release

• Least restriction: restrictions on freedom and autonomy kept to the minimum consistent with community safety (s 39); a certificate of available services is required first (ss 26(3), 47).

• No "appropriate place": if none is available and there is no practicable alternative, a CSO in prison may be made — even for cognitive deficits where the MI defence was never open (The Queen v Coulter [2014] VSC 42).

• Leave & variation: Forensic Leave Panel (s 50); extended leave up to 12 months if it will not seriously endanger the patient or community (s 57); CSO→NCSO variation (s 32); NCSO revocation (s 31).

• Revocation — endangerment: "likely to endanger" turns on the probability of harm materialising, not merely its gravity; proceedings are quasi-inquisitorial with no onus of proof; BOP informed by Briginshaw / s 140 Evidence Act 2008 (NOM v DPP [yr?] VSCA 198).

• Continuing risk from other causes: a supervision order may be continued on the basis of risk from ongoing drug use even after the mental illness is controlled (Buchanan v Secretary to the Department of Health [2014] VSCA 176).

Tactical note: Because a supervision order is indefinite (nominal term aside), it is often better to plead guilty and seek a Verdins-discounted sentence (R v Verdins (2007) 169 A Crim R 581) than to run mental impairment and risk a lifetime order — but weigh medical supervision against Corrections supervision.

6 · Forum & Commonwealth¶

• Magistrates' Court — MI only: the s 20 defence and s 21(1) presumption apply to summary and indictable-heard-summarily matters (s 5), but on NGMI the court must discharge (no supervision power) (s 5(2)); consent-MI is unavailable; unfitness cannot be litigated there (s 4) — indictable matters may be uplifted.

• Children's Court: since 1 Nov 2014 may deal with unfitness (indictable only — s 5A) and MI (ss 38ZA, 38ZB); NGMI of a summary offence → discharge (s 5A(3)); indictable-summarily → supervision or release (s 38ZD(1)); supervision capped at 6 months, extendable (s 38ZI).

• Commonwealth — MI: s 7.3 Criminal Code Act 1995 (Cth) adds a third limb — unable to control the conduct (s 7.3(1)©); MI defined to include senility, ID, mental illness, brain damage and severe personality disorder (s 7.3(8)).

• Commonwealth — fitness: determined under State procedure; on a prima facie case the court may order supervision or detention (Pt 1B Crimes Act 1914 (Cth), ss 20B–20BC); no prima facie case → dismiss (s 20BA).

• Appeals: unfitness finding (s 14A); NGMI (s 24AA); supervision order (s 28A(1)).

At a glance — fitness vs mental impairment¶

Axis	Fitness to be tried	Mental impairment (defence)
Relevant time	the accused's state at trial	the accused's state at the time of the offence
Provision	s 6 CMIA (Presser criteria)	s 20 CMIA (M'Naghten / Porter)
Test	one of six s 6(1) incapacities, caused by disordered/impaired mental processes	MI meant no knowledge of the nature/quality or the wrongness of the conduct
Presumption	presumed fit (s 7)	presumed not impaired (s 21(1))
Onus / standard	party raising rebuts (s 7(4)/(5)); BOP; judge alone now (s 14C)	party raising proves on BOP (s 21); jury (or s 21(4) consent hearing)
Outcome	adjourn (likely fit ≤12 mths) or special hearing (ss 14F, 15)	NGMI → supervision order or unconditional release (s 23)

Currency watch¶

• From 26 April 2021 — temporary Division 2 (judge-alone fitness) in force until s 10 is substituted; s 7(3)(b) jury requirement suspended (ss 5C, 14B–14K). Confirm still in force on exam day.

• 18 April 1998 — s 20 mental impairment defence commenced; replaced the common-law insanity defence (s 25).

• 1 November 2014 — Children's Court empowered to deal with unfitness and mental impairment.

• Verify on the day — confirm the [yr?] citations below and that Division 2 has not yet been repealed.

Verification note. Drawn from your fitness and mental impairment notes. Two authorities appear without a full medium-neutral citation in both sources — confirm on AustLII:

• Confirm citation: R v Presser — cited by name/"VR 45" only in both sources; confirm [1958] VR 45.

• Confirm year: NOM v DPP VSCA 198 — no year given in either source; confirm before relying.