Table of contents

Updates and background for this project (Digest)

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Terms of Reference
Participants
SUBMISSIONS
ABBREVIATIONS
ISSUES

A series of consultation papers
Structure of this paper
Preliminary consultations
Submissions and further consultation

INTRODUCTION
WHEN AND HOW THE QUESTION OF FITNESS ARISES
THE MEANING OF FITNESS TO BE TRIED
The Presser standards
Are the Presser standards sufficient?
THE ROLE OF THE MENTAL HEALTH REVIEW TRIBUNAL
A simplified procedure?
PROCEDURES ANCILLARY TO THE DETERMINATION OF FITNESS
Assessment reports
Consent orders
Appeals in relation to fitness at the time of trial
FITNESS IN LOCAL COURTS
Summary proceedings
Committal proceedings

INTRODUCTION
THE SPECIAL HEARING
Verdicts available at a special hearing
The rationale of the special hearing
ABOLISHING OR MODIFYING THE SPECIAL HEARING
Abolishing or limiting the special hearing
Requiring a prima facie case
Postponing the determination of fitness
Flexibility in the way the special hearing is conducted
The requirement for the defendant to be present
Findings at a special hearing

OVERVIEW OF THE DEFENCE
Why do we have a defence of mental illness?
Which crimes does the defence cover?
What are the consequences of being found not guilty by reason of mental illness?
What are the issues for discussion in this chapter?
A CONTINUING NEED FOR THE DEFENCE?
THE CURRENT TEST FOR MENTAL ILLNESS
The legislative framework
The M’Naghten rules
Applying the test to particular mental conditions
REFORMING THE TEST FOR THE DEFENCE OF MENTAL ILLNESS
Is there a need for reform?
Reform based on the M’Naghten rules
Finding a new approach
INTOXICATION AND THE DEFENCE OF MENTAL ILLNESS
Intoxication in the law generally
Intoxication that produces a state of mind consistent with the M’Naghten rules
DISTINGUISHING THE DEFENCE OF MENTAL ILLNESS FROM THE DEFENCE OF AUTOMATISM
PROCEDURAL ASPECTS OF THE DEFENCE OF MENTAL ILLNESS
Who may raise the defence?
Process for determining the facts
APPLICATION OF THE DEFENCE TO THE LOCAL COURT

INTRODUCTION
Current provisions
BACKGROUND TO THE CURRENT PROVISIONS
History of diminished responsibility
Introduction of diminished responsibility in NSW
Review by New South Wales Law Reform Commission
Incidence of the defence
ELEMENTS OF THE DEFENCE
Abnormality of mind
An “underlying condition”
A standard definition of mental impairment?
Substantial impairment
The role of the jury
Factors judges consider when sentencing offenders with substantial impairments
SHOULD THE DEFENCE CONTINUE TO OPERATE?
Recent developments in other jurisdictions
Arguments for retaining the defence of substantial impairment
Arguments for abolition
The Commission’s preliminary view

OVERVIEW
CURRENT OPERATION OF INFANTICIDE
Wilful act or omission
Onus of proof
Incidence and outcomes
NSW LAW REFORM COMMISSION REPORT 83
ISSUES FOR DISCUSSION
Arguments for retention
Arguments for abolition
Options for reform

INTRODUCTION
HISTORICAL DEVELOPMENT
ORDERS MADE DURING THE COURT PROCESS
People unfit to be tried and not acquitted at a special hearing
People found not guilty by reason of mental illness
Differences in powers for dealing with persons who are UNA and those who are NGMI
WHAT ORDERS SHOULD BE AVAILABLE?
Option A: retain current frameworks
Option B: broad discretion for the court to detain or release persons who are UNA or NGMI
Option C: court selects from a range of defined orders
Option D: court refers person to MHRT which makes the order
WHAT PRINCIPLES AND FACTORS SHOULD THE COURT CONSIDER?
Risk of harm
The views of victims and carers
Additional factors
Standard of proof
ANCILLARY ISSUES
Means by which the court may inform itself
Appeals against findings and orders in respect of persons who are UNA or NGMI
The Local Court

INTRODUCTION
Why do we have a forensic mental health system?
How does a person become a forensic patient?
THE FORENSIC DIVISION OF THE MHRT
Periodic and ad hoc reviews of forensic patients
Powers in relation to leave and conditional release
Participation by victims and carers in MHRT proceedings
Additional functions regarding forensic patients who are unfit and not acquitted
When a person ceases to be a forensic patient
Appeals against MHRT findings and orders
PARTICULAR FEATURES OF THE FORENSIC MENTAL HEALTH SYSTEM
Detention of forensic patients in correctional centres
Compulsory treatment
CONSIDERATIONS FOR DECISION-MAKING ABOUT FORENSIC PATIENTS
Balancing safety, treatment and personal liberty
SHOULD THERE BE A TIME LIMIT?
Rationale
If there is a time limit, how should it be set?

INTRODUCTION
SENTENCING PROCESS
Purposes
Sentencing principles
Aggravating and mitigating factors
Legislative reference to cognitive or mental impairment
SENTENCING OPTIONS IN NSW
Sentences of full-time detention
Issues for discussion
Parole
Alternatives to full-time detention
Power to defer sentence