Mandatory Procedures and Fairness in Mental Impairment Hearings

Uncertainty has attended procedures for adjudging unfitness to stand trial in Victoria pursuant to the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) and how “special hearings” should be conducted when a person is determined to be unfit to stand trial but does not wish to pursue the defence of not guilty because of mental impairment. In R v Langley [2008] VSCA 81, (2009) 19 VR 90 the Victorian Court of Appeal clarified the procedures to be employed at jury trials on such matters and quashed a decision not in conformity with proper procedures, making clear that denial of fairness to such accused persons has the potential to result in appealable error.