Victorian Consolidated Legislation

Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 - SECT 21

Presumptions, standard of proof, etc.

21. Presumptions, standard of proof, etc.



(1) A person is presumed not to have been suffering from a mental impairment
having the effect referred to in section 20(1) until the contrary is proved.

(2) The question whether a person was suffering from a mental impairment
having the effect referred to in section 20(1)-

   (a)  is a question of fact; and

   (b)  subject to subsection (4), is to be determined by a jury on the
        balance of probabilities.



(3) If the defence of mental impairment is raised by the prosecution or the
defence, the party raising it bears the onus of rebutting the presumption.

(4) If a person is charged with an indictable offence and, before the
empanelment of a jury, the prosecution and the defence agree that the proposed
evidence establishes the defence of mental impairment, the trial judge may
hear the evidence and-

   (a)  if the trial judge is satisfied that the evidence establishes the
        defence of mental impairment, may direct that a verdict of not guilty
        because of mental impairment be recorded; or

   (b)  if the trial judge is not so satisfied, must direct that the charge
        for the offence be tried by a jury.