Children, crime and mental illness

Patrick McGorry has been in the news a lot this year since he was named Australian of the year, for his work highlighting the poor state of mental health services for children. Sadly, there is an all too common link between crime and mental illness. In its more serious forms, mental illness can rob a person of the chance to meaningfully participate in a trial. For that reason, Part 2 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 deals with the issue of what a court should do in that situation. Unfortunately, as CL (A minor) v Lee [2010] VSC 517 demonstrates, the law is not entirely thorough in its coverage of youth unfitness.

Confiscation and human rights

While Victoria waits with general indifference for the commencement of the Confiscation Act 2010 (some time before January 2012), the Supreme Court has handed down DPP v Ali (No 2) [2010] VSC 503, concerning the operation of the current scheme and the effect of the Charter. Section 38 of the Confiscation Act 1997 allows the DPP to seek confiscation of restrained property if-

Not all laws are equal

As most lawyers are aware, manslaughter by an unlawful and dangerous act is a common law offence that occurs, in broad terms, when a person unintentionally causes the death of another by an unlawful act which a reasonable person in the position of the accused would have realised would expose another person to an appreciable risk of serious injury. Courts have, however, expressed various views on what is an 'unlawful act' for this purpose. In particular, before a dedicated offence of culpable driving existed, there was debate on whether the multiplicity of driving offences in various road safety acts and regulations could constitute an unlawful act.

The high point in Australia for excluding driving offences from the unlawful act doctrine appears to be R v Rau [1972] Tas SR 59, where Burbury CJ states: