Preface
0.1 The purpose of this review is to examine the law and practice regulating what happens to people with a mental illness or a cognitive impairment, or both, who commit crimes. The law recognises that a defendant’s mental state may affect the nature of the criminal justice response that would ordinarily attach to his or her actions. For example, a Local Court magistrate may, in certain circumstances, consider it more appropriate that a defendant be treated in a mental health facility rather than receive a criminal sanction, and order that the defendant be diverted away from the criminal justice system. Offenders appearing before the District or Supreme Courts may be deemed to be unfit to stand trial, or may be tried before a court or a special hearing and receive a qualified acquittal on the ground of mental illness. Alternatively, an offender may be found guilty following an ordinary trial, but have a mental impairment that may lessen the degree of criminal liability, or be relevant to the sentencing process.
0.2 In this review, we assess the effectiveness of the current operation of the criminal justice system in its dealings with offenders who have cognitive or mental health impairments. We do so against the background of the current legislative and administrative regime and a comparison with other jurisdictions, together with Australia’s obligations under relevant human rights instruments.
A series of consultation papers
0.3 This Paper is the second in a series of five consultation papers on this reference, dealing with the following subjects:
1. Consultation Paper 5 – presents a background and overview of the laws affecting people with a mental impairment or a cognitive impairment when they become involved as defendants in the criminal justice system. It sets the context for whole inquiry examining the current civil and forensic system in practice. It also questions the appropriateness of the legislative terminology describing cognitive or mental impairments, and the effectiveness of measures within the criminal justice system to identify such impairments.
2. Consultation Paper 6 – considers the laws determining the nature and extent of criminal responsibility in relation to offenders with cognitive or mental health impairments, primarily in relation to Supreme and District Court proceedings, and the consequences that may follow. In particular, Consultation Paper 6 deals with:
- fitness for trial and the options for dealing with offenders found unfit but not acquitted;
- the elements of the defence of mental illness and how the criminal justice system should respond to offenders found not guilty on the ground of mental illness;
- the partial defence of substantial impairment;
- infanticide; and
- sentencing principles and options.
3. Consultation Paper 7 – examines the laws relating to the diversion of offenders with a mental illness or cognitive impairment away from the criminal justice system, focusing on the diversionary mechanisms available to the Local Court.
4. Consultation Paper 8 – looks at the use of forensic samples taken from a defendant who has been diverted from the criminal justice system, or found unfit to be tried or not guilty by reason of mental illness;
5. Consultation Paper 9 – considers issues specific to young offenders with a mental illness or cognitive impairment.
The first four papers (Consultation Papers 5-8) have been released concurrently. Consultation Paper 9 will be released early 2010.
0.4 We have chosen to publish separate consultation papers rather than one longer paper given the breadth of the subject matter. Also, although the issues raised in this inquiry are interrelated to an extent, they deal with separate and discrete questions. People with an interest and expertise in a specific area can then focus their attention on the paper dealing with that topic.
Structure of this paper
0.5 Chapters 1 to 5 examine the impact of an offender’s cognitive and mental health impairment on the establishment of criminal responsibility. In Chapter 1, we discuss the procedures for determining a defendant’s fitness to stand trial in the District or Supreme courts, including the meaning of fitness, when and how the question arises, the most suitable forum for establishing fitness, and whether a similar procedure should apply in the Local Court. Once a finding of unfitness has been made, the court conducts a special hearing to provide the defendant with an opportunity for acquittal. The adequacy of the special hearing procedure is discussed in Chapter 2.
0.6 Chapter 3 analyses the defence of mental illness, questioning whether it remains relevant or should be reformulated in some way. The related partial defence of substantial impairment is examined in Chapter 4, while Chapter 5 deals with infanticide.
0.7 The remainder of the paper looks at the consequences of an offender’s contact with the criminal justice system. Chapters 6 and 7 discuss the powers of the Court and the Mental Health Review Tribunal respectively to make orders concerning people found unfit but not acquitted at a special hearing, or who have successfully pleaded the defence of mental illness and been found not guilty as a result. Finally, chapter 8 reviews sentencing principles and options applicable to offenders who have been convicted of criminal offences, with a particular focus their appropriateness, or otherwise, people with cognitive and mental health impairments.
Preliminary consultations
0.8 To assist in isolating relevant issues and concerns, the Commission invited preliminary submissions from medical practitioners, judges and magistrates, and agencies such as the Office of the Director of Public Prosecutions, the Legal Aid Commission, the Law Society of NSW, the Public Defenders Office, the Intellectual Disability Rights Service, the NSW Council for Intellectual Disability, and community legal centres. Meetings were also held with the Mental Health Review Tribunal, NSW Police, the Intellectual Disability Rights Service, the Public Interest Advocacy Centre, and Professor Susan Hayes. The Commission is very grateful for this input.
Submissions and further consultation
0.9 A number of issues are raised in this series of consultation papers, designed to stimulate consultation on a much broader level. Submissions in oral, written or electronic form are invited from any interested person or agency, and will assist the Commission in developing its final recommendations.
