Psychological and psychiatric reports for sentencing hearings

Psychological and psychiatric reports for sentencing hearings

Practice note – ‘Expert reports on mental functioning of offenders’

Practitioners commissioning psychiatric or psychological reports for use at a client’s sentencing hearing, must comply with the requirements of the Supreme Court Practice Note SC CR 7 ‘Expert reports on mental functioning of offenders’.

The practice note was developed by the Forensic Evidence Working Group which comprises judges, forensic psychiatrists, forensic psychologists and criminal law practitioners (including representatives from Victoria Legal Aid, the Office of Public Prosecutions and the Criminal Bar Association). It has been adopted by the County Court.

The practice note aims to enhance the quality and reliability of expert evidence, about an offender’s mental functioning, tendered in plea and sentencing hearings. Its purpose is to improve the utility of the evidence by ensuring the opinions expressed are within the scope of the expert’s specialist knowledge and are supported by clearly identified facts and reasoning.

Panel discussion of the practice note

Victoria Legal Aid (VLA) hosted a panel discussion for VLA lawyers and private practitioners on the ‘Expert reports on mental functioning of offenders’ Practice Note on 22 November 2017.

The Honourable Justice Maxwell AC, President of the Court of Appeal, led the panel discussion with:

  • His Honour Justice Christopher Beale, Supreme Court of Victoria
  • Her Honour Judge Felicity Hampel, County Court of Victoria
  • Dr Andrew Carroll, Forensic Psychiatrist.

The circumstances leading to the development of the Practice Note and its requirements were outlined. The panel members spoke about the deficiencies often seen in court reports and gave guidance on what practitioners can do to improve the quality and value of reports they commission.

Practitioners can view a recording of the event and download Acting Professor Andrew Carroll’s presentation (pptx, 328.88 KB).

Requirements of the ‘Expert reports on mental functioning of offenders’ practice note

The practice note states that the expert’s paramount duty is to the court, not the commissioning party. An expert must give unbiased and objective opinions and must not alter a report at the legal practitioner’s request.

The practice note also provides that:

  • practitioners must provide a copy of the practice note to the expert
  • the expert must acknowledge that they have read it and agree to be bound by it
  • reports must be served 14 days before the plea hearing
  • experts must be include certain information in all reports
  • experts must have specified qualifications and relevant experience
  • the other party may request any instructions or material provided to the expert and the expert’s notes or results of examinations, tests or investigations.

Paragraph 7 of the practice note details the scope and limits of an expert’s opinion and how evidence of impaired mental functioning may be relevant to sentencing. Practitioner’s should refer to those maters when commissioning the expert to prepare the report. Reports that include opinions that are outside the expert’s area of expertise or which have no evidential basis will be of little use to the Court and the sentencing process.

Resources

To assist practitioners, we have developed a precedent letter that they can use when commissioning assessment reports from psychiatrists. Download the Letter to psychiatrist requesting new assessment and report for County or Supreme Court plea (docx, 65.57 KB).

We are working with experts to develop other report request letters that give the expert clear information about what is required and which comply with the practice note.

Practitioners must comply with the requirements of all court practice notes relating to criminal matters in the Supreme Court and County Court. They are available on the court website:

More information

Jennifer Schubert Professional Support Lawyer, Criminal Law, Accredited Criminal Law Specialist, phone (03) 9269 0609 or email jennifer.schubert@vla.vic.gov.au.

Was this helpful?