The Supreme Court today outlined changes to the management of Crimes Mental Impairment (CMI) applications, in response to the coronavirus (COVID-19) situation.
During this period, the Honourable Justice Taylor will be managing these applications on the following basis:
1. In principle, the Court is open to determining CMI applications ‘on the papers’ without the need for appearances, where appropriate and consented to by the parties. As part of this process, the judge with carriage of a particular matter will set a timetable for the filing of written submissions and any further material by email to the parties. Where necessary, in-person hearings will be scheduled by the managing judge, although it is proposed that matters be determined without in-person hearings wherever possible.
2. Going forward, the procedure for existing and new applications will be as follows. The chambers of the managing judge will contact the parties and request a consolidated response to the following queries:
a. Agreement regarding determination on the papers: whether the parties are agreeable to having the matter dealt with on the papers and, if not, an explanation as to reasons for opposition;
b. Identification of potential issues: any issues that the parties consider may arise if the matter were to proceed on the papers;
c. Consent to outcome: whether there is consent between the parties as to the appropriate outcome of the application or review;
d. Proposed timetable: assuming that it is agreed that the matter can be dealt with on the papers, providing a proposed timetable for the filing and service of affidavits, submissions and authorities; and
e. Notional listing date: notwithstanding agreement that a matter can be dealt with on the papers, or in the event there is no such agreement, providing a notional date on which the parties and any stakeholders and/or witnesses would be available to attend a hearing , if required.
3. Where an issue has been identified by the parties ((b), above), the managing judge’s chambers will further liaise with parties to determine whether the hearing of submissions and/or the taking of oral evidence
is necessary, and any attendance required. Any ‘in-person’ hearing is likely to occur remotely using AV facilities.
4. Given that the move to hearing matters on the papers will limit the ability for the Court to make enquiries of the clinicians in each matter, it is requested that practitioners ensure that the reports and/or affidavits adequately address all issues relevant to risk assessment and to which the Court is required to have regard (including, without limitation, each of the matters in s 40(1) of the CMIA), and any other issues are fully addressed in written submissions.
The Court is conscious of the additional workload on stakeholders that has been occasioned by the current circumstances, particularly Forensicare, and is committed to facilitating the timely resolution of these matters. This may involve bringing hearing dates forward, if this can be accommodated by the parties and clinicians, or adjourning matters in consultation with the parties.
The above procedures are intended to operate on a provisional basis going forward, and remain subject to change.