Victoria Legal Aid

Record of assessment of capacity

File checklist – fitness to plead

To be completed in all cases where the lawyer uses Record of assessment of capacity and considers that fitness to plead might be an issue regardless of the age of the child

Issues and tasks checklist

Issues / Comment (Y/N and notes)
Take instructions from the client and assess issues using
  • record of instructions – duty lawyer
  • record of assessment of capacity
  • If the child was under 14 at the time of the alleged offence: record of assessment of doli incapax, or
  • If the child was aged 14 or more at the time of the alleged offence: record of assessment of mental impairment
If doli incapax is in issue: also use file checklist – child under 14 at time of alleged offence
If mental impairment is in issue: also use the file checklist – mental impairment
Obtain general authority for reports using 'VGA2030 - Authority_Medical records and report_Health Act'
Any existing evidence of unfitness contained in existing expert reports- Medical, psychiatric, other? Matters to consider include:
  • Any educational assessments, especially if at a special school
  • Any cognitive or disability assessments, especially if registered with Disability Services
  • Any treating medicos especially if seeing a paediatrician, child psychiatrist, psychologist or counsellor – if available get copies using 'Ltr_Expert_medical report_treating practitioner'

If fitness in issue, see definition contained in s38K Crimes (Mental Impairment and Unfitness to be Tried) Act:
  • The child’s mental processes are disordered or impaired; and
  • Because of this the child is or will at some time during the hearing be-
  • Unable to understand the nature of the charge, or
  • Unable to enter a plea to the charge,
  • Unable to understand the nature of the hearing (namely that it is an inquiry as to whether the child committed the offence; or
  • Unable to follow the course of the hearing, or
  • Unable to understand the substantial effect of any evidence that may be given in support of the prosecution or
  • Unable to give instructions.
If applicable include details in Brief Analysis and Case Strategy Tool (Complete Checklist_Lawyer_Brief analysis and case strategy_manual)
If not applicable end of checklist
Is this indictable or summary matter? (NB: Part 5A Fitness framework only applies to Indictable matters)
An expert assessment to confirm fitness is to be obtained
Matters to consider include:
  • Get medical report form signed by your manager
  • Private or Clinic (or both)?
  • If private:
  • Book appointment (see experts register) avoiding delay
  • Notify the client of the appointment in writing (Ltr_Client_psych appointment)
  • Send letter to the expert with necessary enclosures and details (Ltr_Psychiatrist_request new assessment and report mental impairment_fitness)
  • Remind the client by phone the day before the appointment
  • Diarise report return
  • All police and other material available before assessment – provide to expert
  • Review report to ensure all questions asked have been answered and all available evidence is considered to minimise impact of examination by prosecution

Investigation into fitness
Pre investigation
  • If defence intend to raise fitness as issue, reasonable notice must be given to prosecution- s 38L (6) – no time set but suggest that this should be before / instead of booking a case in for contest mention
  • Note date of reservation of question of fitness under s 38N
  • Calculate and note 3 month time limit for investigation into fitness- s 38O (unextendable)
  • Ensure return date for Clinic Report is at least a month before the 3 month time limit to ensure time in case evidence is required
  • If evidence about investigation is booked:
  • Issue subpoena for private expert at least two weeks before investigation (or ensure that they make themselves available to give evidence)
  • Send Ltr_pre_Other_Childrens Court Clinic to the Court to require attendance of the Clinician Procedure on investigation at least two weeks before investigation
  • Brief barrister (if required)

After investigation
  • If fit – matter resumes as normal BUT may appeal within 28 days – s38U:
  • Note last date for appeal
  • Advise client about appeal rights
  • End of checklist if no appeal
  • If likely to be fit within six months – adjourn for up to 6 months
  • May abridge under s38S
  • Presumed fit on resumption
  • If fitness continues to be an issue Special hearing to be held within 3 months (note date)
  • If not fit to plead/likely to be fit within 6 months:
  • Special hearing to be held within 3 months (note date)

Special Hearings
  • At least two weeks before the special hearing:
  • Issue subpoena for any private expert
  • Send Ltr_pre_Other_Childrens Court Clinic to the Court to require attendance of the Clinician
  • Brief Counsel (if required)

Outcome of special hearing
  • If not guilty of the offence – matter concludes, end of checklist
  • If not guilty because of mental impairment:
  • Released unconditionally? DPP has the right to appeal within 28 days under s38ZAA, otherwise end of checklist
  • Liable to supervision?
  • May appeal within 28 days s38ZJ
  • Custodial? Must have a report and certificate under s 38ZH(6)
  • Max 6 months – note date for review at the end

Extension of supervision order
  • Extension of supervision order?
  • 10-14 at the time of making the supervision order max 6 months extension to total 12 months (s 38ZI(3)(a)) – note final date
  • May appeal within 28 days s38ZJ
  • 15-21 at the time of making the supervision order max 6 months extension to total 24 months (s 38ZI(3)(b)) – note date for next review
  • May appeal within 28 days s38ZJ
  • 15-21 note date for final review
  • May appeal within 28 days s38ZJ

Work instruction

  • You must complete this record fully and accurately. This will help to demonstrate that you have met the duties of competence and standard of care expected of a lawyer.
  • In most instances this document would be considered a client document and given to the client upon request. It could also be disclosed under the FOI Act.

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