Research Paper Question

The insanity defence at common law was abrogated in Victoria by section 20 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) (‘CMIA').

It replaced the insanity defence at common law with a statutory defence of mental impairment, although the common law remains relevant in clarifying the application of concepts within the CMIA. In 2012, the Victorian Law Reform Commission (‘VLRC') was asked to review the then 15-year-old CMIA, and in 2014 it delivered its report to the Victorian Parliament.

One of the changes it recommended was for the defence of mental impairment to be amended by the insertion of a specific definition of ‘mental impairment', and by replacement of the language in sub-section 20(1) of the CMIA - the existing provision establishing the defence of mental impairment.

Although the first of these changes was introduced in the Victorian Parliament in 2016 and approved by the Legislative Assembly in 2017, the Legislative Council has thus far refused to proceed with the changes.

The Liberal Nationals claim this is because the proposed definition is wider and will allow more people to avoid criminal trial, while the Greens have concerns about the lack of clarity in the definition of ‘cognitive impairment' within the proposed definition of mental impairment

In your view of the VLRC's report:

(a) Does the proposed definition create an unacceptable danger of more people being able to avoid the consequences of their criminal behaviour?

(b) Does the proposed definition adequately define the term cognitive impairment?

(c) Should the language of sub-section 20(1) CMIA be replaced with the language proposed by the VLRC?

In your answer, give reasons for your position with reference - where relevant - to existing law, the VLRC's report, the legislative and political process surrounding the introduction of the Crimes (Mental Impairment and Unfitness to be Tried) Amendment Bill 2016(Vic), and the legal principles of community protection and criminal responsibility.

Relationship to other tasks and assessments:

This assignment allows you to engage in depth with a current issue of Victorian criminal law reform - revision of the law relating to the traditional insanity defence, or the defence of mental impairment as it is now known in Victoria. The assignment will complement your study of substantive criminal law by broadening your understanding of how such law comes into being, illustrating how legal principles and political processes underpin or affect the criminal law.

The group work research paper will facilitate your development of legal research skills, ability to engage in critical legal analysis, and capacity to write clear and persuasive legal arguments in an essay format. This assignment also helps to build your collaborative and communication skills, as you will work together with fellow students in developing your research paper.

Purpose of this assignment and ULOs assessed

The purpose of this assignment is to:

1. Assess students' understanding of, and critical analysis skills in relation to core criminal law principles, the history and politics of criminal law, and contemporary Victorian criminal law reform.

2. Provide students with an opportunity to develop their legal research and writing skills, and their collaboration and communication skills.

3. Provide students with an opportunity to develop their collaboration and communication skills in the joint management of a project.

The unit learning outcomes assessed are:
1. Critically review the general principles of criminal liability derived both from common law and statute, in particular, the Crimes Act 1958 (Vic), in problem solving and decision making;
...
4. Justify the solutions to problems using case and statute law as authority with creativity and intellectual independence.

Details

The research question for this assignment is provided below. You must respond to this question in a research paper in essay format, and submit your essay to the Assignment Two dropbox on VU Collaborate by 11.59pm on the due date.

Your essay must focus upon, and directly respond to, the research question. It must use clear and intelligible written expression, advance a recognisable set of arguments, conform broadly to standard essay format, demonstrate independent research on your selected topic, and provide referencing and a reference list in compliance with the Australian Guide to Legal Citation.

This assignment involves group work with your fellow students. This entails group organization, the breaking down of the task into smaller elements, the allocation of responsibility for different elements of the task, and a timeline or plan for completing the task. To facilitate this aspect of the assignment, a separate document - ‘LLW1001 Group Work Planner' - is provided on VU Collaborate. You are encouraged to refer to this document to ensure your group works together efficiently and fairly.

The final paper must be submitted by a single member of your group, and must be accompanied with a statement signed (digital acknowledgement is acceptable) by all members of the group that outlines the work undertaken, and the contribution made, by each member of the team.

When you receive feedback on your research paper, you will receive a raw mark out of 100 as well as a mark out of 30 that reflects the 30% weighting of this assignment in the unit overall. You will also receive detailed feedback in the form of both specific comments on your essay paper itself and general comments that provide an overview of how effectively you have responded to the assessment criteria. All group members will receive the same mark for this assignment.

Research Paper Question

The insanity defence at common law was abrogated in Victoria by section 20 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) (‘CMIA'). It replaced the insanity defence at common law with a statutory defence of mental impairment, although the common law remains relevant in clarifying the application of concepts within the CMIA. In 2012, the Victorian Law Reform Commission (‘VLRC') was asked to review the then 15-year-old CMIA, and in 2014 it delivered its report to the Victorian Parliament.

One of the changes it recommended was for the defence of mental impairment to be amended by the insertion of a specific definition of ‘mental impairment', and by replacement of the language in sub-section 20(1) of the CMIA - the existing provision establishing the defence of mental impairment. Although the first of these changes was introduced in the Victorian Parliament in 2016 and approved by the Legislative Assembly in 2017, the Legislative Council has thus far refused to proceed with the changes.

The Liberal Nationals claim this is because the proposed definition is wider and will allow more people to avoid criminal trial, while the Greens have concerns about the lack of clarity in the definition of ‘cognitive impairment' within the proposed definition of mental impairment

In your view of the VLRC's report:

a. Does the proposed definition create an unacceptable danger of more people being able to avoid the consequences of their criminal behaviour?

b. Does the proposed definition adequately define the term cognitive impairment?

c. Should the language of sub-section 20(1) CMIA be replaced with the language proposed by the VLRC?

In your answer, give reasons for your position with reference - where relevant - to existing law, the VLRC's report, the legislative and political process surrounding the introduction of the Crimes (Mental Impairment and Unfitness to be Tried) Amendment Bill 2016(Vic), and the legal principles of community protection and criminal responsibility.

Instructions

Task description

1. Read over the research question above and think about what your response might be.

2. In the first week of class, choose your group members and begin preliminary research and essay planning. Allocate tasks within your group. Develop your research essay over weeks 1, 2 and 3.

3. In this assignment, you will rely primarily on your own - and your group's - initiative to complete the essay. However, there are many resources at your disposal, including student services, your LLW1001 teacher and your fellow students via discussion boards on VU Collaborate. Remember that in Week 2 Session 2 we will do a short exercise in class to help focus your development of your research paper.

4. Ensure you have submitted your research paper to the correct dropbox by 11.59pm on the due date (Wednesday in Week 3). Ensure you also submit your signed statement on group member contributions.

Process

Please note and follow the process steps below:

1. Read through and consider the research question above.

2. Choose your group members in week 1 session 2, and allocate tasks within your group.

3. Conduct preliminary research and plan your arguments and essay structure.

a. Remember to answer your research question - what does it ask? Does your response address each question or issue raised in the research question?

b. Remember that essays typically require an introduction stating your argument and how your essay will develop it, an essay body comprised of coherent paragraphs that logically progress your main points, and a conclusion that summarizes your essay's main points and their link to the research question.

i. Don't be afraid to modify your essay structure to suit your style, and your group's style, but remember to include the above basic essay elements.

4. Begin writing your essay, remembering to reference the factual and legal claims you make, and the work or words of others that you use or refer to.

5. Review your progress in our Week 2 Session 2 exercise on the research paper.

a. Remember to double check whether your argument directly responds to the research question, whether you have a clear and effective introduction, essay body and conclusion, and whether you have referenced your factual, legal and paraphrased or quoted information.

b. Remember to double check your group's progress, each member's understanding of their role(s), and that you have a document outlining each member's contribution.

6. Complete and submit your research paper and your group work statement to the correct dropbox by 11.50pm on the due date (Wednesday in Week 3).