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.


CL v Lee is a judicial review decision from the Children's Court regarding proceedings for a series of property and sexual offences committed by a child. The case is sparse on factual detail about the offending, as the Children's Court has not yet conducted a substantive hearing. Regardless, it is worth noting that the Children's Court can exercise summary jurisdiction most indictable offences committed by children, except for a range homicide offences. However, the court has a discretion to conduct a committal proceeding and transfer the matter to the County or Supreme Court instead, if the child objects to a summary hearing or if the court finds exceptional circumstances for refusing summary jurisdiction. In CL v Lee, the magistrate found exceptional circumstances to justify conducting a committal hearing due to the uncertainty about the court's competence to determine fitness to stand trial issues. Lasry J ultimately found that the magistrate did not have power to determine a child's fitness to stand trial and upheld the magistrate's decision. In reaching this conclusion, he rejected three bases for finding jurisdiction to determine fitness: the Children, Youth and Families Act, the Crimes (Mental Impairment and Unfitness to be Tried) Act, and the common law. As part of this decision, his Honour held that both the Magistrates Court and the Children's Court are unable to determine fitness issues.

While Lasry J calls on the Government to rectify this situation and give magistrates the power to determine fitness (suggesting reforms modelled on the relevant ACT legislation), the case raises two interesting issues. First, the practical issue of what magistrates should do, pending legislative reform, and second, Lasry J's approach to the Charter of Human Rights and Responsibilities Act issues.

The practical issues
Following this decision, magistrates across Victoria appear to be in a dilemma. At common law, it is unlawful to conduct a criminal proceeding over a person who is unfit to be tried. Based on Pioch v Lauder (1976) 27 FLR 79, it appears that this is not a limitation specific to trials on presentment or indictment, but also covers summary hearings. However, CL v Lee establishes that a magistrate also does not have power to determine the question of fitness and the provisions of the Crimes (Mental Impairment and Unfitness to be Tried) Act do not extend to summary hearings. In short, when a summary hearing raises the question "Is the accused fit to be tried", the magistrate cannot proceed if the answer is "No", and cannot determine the answer to the question! The result is that magistrates are seemingly stuck. Presumably magistrates must stay the hearing until the fitness question resolves itself (because the magistrate cannot resolve the question). While courts will presumably deal with this issue pragmatically, and will not allow parties to raise spurious fitness issues to indefinitely postpone a summary hearing, the problem arises because of the law of a common law power to determine fitness. Lasry J doesn't seem to consider this issue, which could have been resolved by giving the courts a common law power to determine fitness issues, without reintroducing governor's pleasure detention orders. Regrettably, Lasry J rejected the existence of any common law power, destroying that option. Pending legislative change, if a person raises a legitimate fitness question in the Magistrates' Court or Children's Court, then they will likely receive an indefinite stay if it is a summary only offence, and committal to a higher court and potentially a lengthy confinement in a mental health institute if it is an indictable offence, even if the offence is triable summarily.

The Charter issue
The second regrettable aspect of this decision concerns the treatment of the Charter. Charter issues were expressly raised and the suitable notices were issued. However, even though the matter was listed for further submissions after Momcilovic, the judgment focuses on the reasonable limits provision, s7(2). The problem with this, as Lasry J identifies, is that unless the Children's Court has jurisdiction to determine fitness, the court had no choice but to refer the matter for committal. This is completely accurate, but potentially misses the point. As the court established in Momcilovic, the interpretative rule, s32, needs to be applied at the first stage of any statutory interpretation. Lasry J doesn't do this. Instead, he adopts ordinary interpretation approaches, concludes there is no jurisdiction, then concludes that there is therefore no unreasonable limit on the accused's human rights. He does not consider whether either of these provisions might have influenced his approach to interpretation:

s17(2) Every child has the right, without discrimination, to such protection as is in his or her best interests and is needed by him or her by reason of being a child.
s23(2) An accused child must be brought to trial as quickly as possible.

In fairness, I happen to think that these provisions would not justify a different interpretation of the relevant provisions of the Crimes (Mental Impairment and Unfitness to be Tried) Act or the Children, Youth and Families Act. But that isn't the point. Instead, the Charter is, contrary to Momcilovic, relegated to an after-thought and 'reasonable limits' is considered in the context of applying legislation that has not been interpreted through the lens of the Charter. Given that parts of the case were heard before and after Momcilovic, its possible that the problem lies with the appellant and how he structured his arguments. However, the Attorney-General made an appearance, arguing that s7(2) had no role to play in the interpretation exercise and, in any event, the accused could receive a fair hearing in the County Court after the committal. So its entirely possible that Lasry J received unhelpful arguments from both ends of the bar table.

Summary
One bright light to come out of this case is the endorsement of the UK practice direction on Children in the Crown Court at [85]. That will provide useful and sensible guidance to higher courts who will often not be used to dealing with child defendants.