Mental Health applications

At Jackson John Defence Lawyers, we recognise that legal cases involving mental health are uniquely complex and sensitive. If you suffer from a psychological or psychiatric condition, whether it be transitory or permanent, the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), may be of great assistance in your case as its primary purpose is to divert those with mental health issues away from the legal system.

Treatment Plan instead of Criminal Conviction – Section 14 Application

If your matter can resolve in the summary jurisdiction of the Local Court, we can mount an application to have your charge dismissed in accordance with section 14 of the Act on the condition that you enter a treatment plan with a recognised medical professional. 

The team at Jackson John Defence Lawyers are highly experienced in making these types of applications, with great success. The first step is to obtain a psychological and/or psychiatric report which will determine the nature of your mental health impairment or cognitive impairment and how it is related to the offending conduct. The report will also detail an effective treatment plan which will be imposed if the matter proceeds by way of a section 14 discharge.

Once we’ve obtained the relevant report, one of our capable lawyers will appear before the Magistrate and make cogent submissions on your behalf. The application is a three-stage process:

  1. Firstly, the Magistrate must decide whether, as a question of fact, you have (or had at the relevant time) a mental health impairment or cognitive impairment.
    1. A mental health impairment can include a temporary ongoing disturbance of thought, mood, volition, perception, or memory is significant for clinical diagnostic purposes, and that impairs the person’s emotional well-being, judgment or behaviour.
    2. It may arise from an anxiety disorder, an affective disorder, including clinical depression and bipolar disorder, a psychotic disorder, or a substance-induced mental disorder that is not temporary.
    3. However, a person does not have a mental health impairment for the purposes of this Act if the person’s impairment is caused solely by the temporary effect of ingesting a substance or a substance use disorder.
    4. A cognitive impairment is an ongoing impairment in adaptive functioning, comprehension, reason, judgment, learning or memory, and the impairments result from damage to or dysfunction, developmental delay or deterioration of the person’s brain or mind that may arise from an intellectual disability, borderline intellectual functioning, dementia, an acquired brain injury, drug or alcohol-related brain damage, including foetal alcohol spectrum disorder, autism spectrum disorder.

 

  1. Secondly, the Magistrate must decide, as a matter of discretion, whether to deal with the matter otherwise than according to law. In coming to a conclusion, the Magistrate will need to consider not only the material before the Court, but must have regard to the public interest. The Court must balance the public interest in you having treatment mandated by the Court, and the public interest in having the matter dealt with according to law.

 

  1. Thirdly, once it has been determined that it is more appropriate to deal with you in by way of a section 14, it must be decided what type of orders should be made. The Magistrate can make the following orders:
    1. Discharge you into the care of a responsible person, unconditionally, or subject to conditions.
    2. Discharge you on the condition that you attend upon a person or place specified by the Magistrate for assessment, treatment, or the provision of support for your mental health impairment of cognitive impairment.
    3. Discharge you unconditionally.  

There are a range of considerations the Magistrate must make in determining the appropriateness, or not, of this diversionary option. Section 15 of the Act includes the following list, which is used to guide the Magistrate’s decision-making process:

  • The nature of the mental health impairment and/or cognitive impairment;
  • The nature, seriousness, and circumstances of the offending;
  • The suitability of sentencing options available if you were to be found guilty of the offence;
  • Relevant changes in your circumstances since the offending;
  • Your criminal history;
  • Whether you’ve previously been subject to this type of order;
  • Whether a treatment or support plan has been prepared for you and the content of that plan;
  • Whether you are likely to endanger the safety of yourself, any victim, or any member of the public; and/or
  • Any other relevant factors.

If the Magistrate agrees to dismiss your charge pursuant to section 14 of the Act, you will not be convicted, nor will there be a finding of guilt against your name. This can be particularly important in the context of applying for an overseas visa, or employment purposes, when you can often be asked “have you ever been found guilty” of an offence. In this respect, the section 14 discharge allows you maintain your good record.

Treatment for Mentally Ill and Mentally Disordered Persons – Section 19 Application

Under section 19 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), an individual who is mentally ill or mentally disordered, can be ordered by a Magistrate to be assessed at a mental health facility. The Magistrate can also order an individual to be discharged conditionally or unconditionally into the care of a responsible person, or to receive community treatment.

A mental illness is typically considered more serious than a mental health impairment and can include:

  • Delusions;
  • Hallucinations;
  • Serious disorder of thought form;
  • Severe disturbance of mood; and/or
  • Sustained or repeated irrational behaviour indicating the presence of any one or more of the above symptoms.

The Court considers a person mentally ill or disordered when the person is suffering from a mental illness, and because of that illness, there are reasonable grounds to believe that care, treatment, or control are necessary for the person’s own protection, or to protect others from harm. The Court will also consider the likely deterioration of the person’s condition and the likely effects of the deterioration.

A mental disorder is a condition where a person’s behaviour is so irrational as to justify a conclusion on reasonable grounds that temporary care, treatment, or control of the person is necessary for the person’s own protection, or to protect others from harm. Importantly, a person does need not be mentally ill to be found mentally disordered.

If an accused person has been dealt with in accordance with this part of the Act, a Magistrate can after a period of 6 months dismiss that charge so long as the person is not brought back before the Court again within that 6-month period.

The effect of this is such that an accused person will not have a conviction, nor will a finding of guilt against their name. In this respect, this part of the Act allows an individual to maintain their good record.

There is no requirement for the defence or Prosecution to make an application for this type of order, and a Magistrate can do it of their own accord. However, it is best to seek the assistance of our experienced team of lawyers at Jackson John who will powerfully advocate for you if you find yourself facing this situation.

The Mental Illness Defence – Section 28 Application

Section 28 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), colloquially known as the “insanity” defence, states that an individual will not be held criminally responsible for their actions if at the time they committed a crime, they were suffering from a mental health impairment or cognitive impairment that had the effect that they:

  1. Did not know the nature and quality of the act; or
  2. Did not know that the act was wrong (in that they could not reason with a moderate degree of sense and composure about whether the act, as perceived by reasonable people, was wrong).

A mental health impairment can include a temporary ongoing disturbance of thought, mood, volition, perception, or memory is significant for clinical diagnostic purposes, and that impairs the person’s emotional well-being, judgment, or behaviour.

It may arise from an anxiety disorder, an affective disorder, including clinical depression and bipolar disorder, a psychotic disorder, or a substance-induced mental disorder that is not temporary.

However, a person does not have a mental health impairment for the purposes of this Act if the person’s impairment is caused solely by the temporary effect of ingesting a substance or a substance use disorder.

A cognitive impairment is an ongoing impairment in adaptive functioning, comprehension, reason, judgment, learning or memory, and the impairments result from damage to or dysfunction, developmental delay or deterioration of the person’s brain or mind that may arise from an intellectual disability, borderline intellectual functioning, dementia, an acquired brain injury, drug, or alcohol-related brain damage, including foetal alcohol spectrum disorder, autism spectrum disorder.

A finding by the Court, that the act is proven but the individual is not criminally responsible does not automatically mean that the person will be released immediately back into the community. The Court will make one of the following orders:

  1. The individual be remanded in custody until a further order is made;
  2. The individual be detained in the place and manner that the Court thinks fit until released by due process of the law;
  3. The individual be unconditionally or conditionally released from custody; or
  4. Any other order the Court thinks is appropriate.

The Court must not make an order for release unless it is satisfied on the balance of probabilities that the individual’s safety, or that of the community will not be seriously endangered by the release.

Substantial Impairment Partial Defence – Section 23A Crimes Act 1900 (NSW)

In relation to the offence of murder, in the event that the Court is not satisfied of the complete mental illness defence, an alternative partial defence could be mounted in relation to substantial impairment.

Section 23A of the Crimes Act 1900 (NSW) states that a person who would otherwise be guilty of murder is not to be convicted of murder if:

  1. At the time of the act or omission causing the death, the person’s capacity to understand events, or to judge whether the person’s actions were right or wrong, or to control himself or herself, was substantially impaired by a mental health impairment or a cognitive impairment; and
  2. The impairment was so substantial as to warrant liability for murder being reduced to manslaughter.

Self-induced intoxication cannot be taken into consideration for the purpose of determining whether the person is liable to be convicted of murder by virtue of this section.

A mental health impairment can include a temporary ongoing disturbance of thought, mood, volition, perception, or memory is significant for clinical diagnostic purposes, and that impairs the person’s emotional well-being, judgment, or behaviour.

It may arise from an anxiety disorder, an affective disorder, including clinical depression and bipolar disorder, a psychotic disorder, or a substance-induced mental disorder that is not temporary.

However, a person does not have a mental health impairment for the purposes of this Act if the person’s impairment is caused solely by the temporary effect of ingesting a substance or a substance use disorder.

A cognitive impairment is an ongoing impairment in adaptive functioning, comprehension, reason, judgment, learning or memory, and the impairments result from damage to or dysfunction, developmental delay or deterioration of the person’s brain or mind that may arise from an intellectual disability, borderline intellectual functioning, dementia, an acquired brain injury, drug or alcohol-related brain damage, including foetal alcohol spectrum disorder, autism spectrum disorder.

In a trial for murder, if this partial defence is successful, an accused person will be found not guilty of murder and will be found guilty of the alternative charge of manslaughter, which often carries substantially less serious penalties. Furthermore, the Court will likely take into consideration any treatment an individual requires with respect to the mental health issues in structuring an appropriate sentence.

Unfit to Stand Trial – Part 4 Application

Part 4 of the Mental Health and Cognitive Impairment Forensics Provisions Act 2020 (NSW) provides the legal framework for situations where a person who has a mental or cognitive impairment is unfit to stand trial. 

A person is taken to be unfit to be tried for an offence if the person, because the person has a mental health impairment or cognitive impairment, or both, or for another reason, cannot do one or more of the following:

  1. Understand the offence the subject of the proceedings;
  2. Plead to the charge;
  3. Exercise the right to challenge jurors;
  4. Understand generally the nature of the proceedings as an inquiry into whether the person committed the offence with which the person is charged;
  5. Follow the course of the proceedings so as to understand what is going on in a general sense;
  6. Understand the substantial effect of any evidence given against the person,
  7. Make a defence or answer to the charge;
  8. Instruct the person’s legal representative so as to mount a defence and provide the person’s version of the facts to that legal representative and to the court if necessary; and/or
  9. Decide what defence the person will rely on and make that decision known to the person’s legal representative and the court.

Unfitness applications can only be raised in the District or Supreme Court jurisdictions. Ordinarily, the Court should be put on notice that fitness is an issue before an accused person is formally arraigned. The process of arraignment involves the Prosecution presenting an indictment and calling for the accused to enter pleas of guilty or not guilty.

However, it is noted that a person’s fitness, or lack thereof, may not be immediately evident. Accordingly, it can be raised at any time in the same proceedings and may be raised more than once if the need arises.

Once the issue of fitness is raised, the Court will hold an inquiry and the criminal proceedings will be essentially placed on hold. The inquiry must occur as soon as reasonably practical after the issue is raised.

It may be that the Court ultimately does not decide to hold an inquiry if it determines that it is inappropriate to inflict punishment given the triviality of the charge and the nature of the person’s mental health impairment or cognitive impairment, in addition to any other matter the Court deems relevant.

The Court will consider the following in determining whether a person is unfit:

  1. Whether the trial process can be modified, or assistance provided, to facilitate the accused person’s understanding and effective participation in the trial;
  2. The likely length and complexity of the trial; and
  3. Whether the accused person is represented by a legal practitioner or is able to obtain such representation.

Usually, each of the parties will obtain specialist reports such as psychological or psychiatric reports which detail the mental health impairment and/or cognitive impairment suffered by the accused person and the impact upon the person’s ability to appropriately participate in the proceedings.

The inquiry is held in a non-adversarial manner, and the question of fitness is to be determined by a Judge alone on the balance of probabilities. What this means is that the parties present the evidence, and the Judge decides whether is it more likely than not that the person is unfit to stand trial.

If the accused person is deemed to be fit, the criminal proceedings recommence and continue in accordance with the appropriate criminal procedures.

If the accused person is deemed to be unfit, the Judge must then decide, on the balance of probabilities, whether during the period of 12 months after the finding of unfitness, the person may become fit or will not become fit to be tried.

If the person is likely to become fit within 12 months, they are referred to the Mental Health Review Tribunal who will make orders for the care and treatment of the person, who may or may not be detained during that. Once the Mental Health Review Tribunal has determined the person is now fit for trial, the proceedings will re-commence.

If the person is unlikely to become fit within 12 months, the Court can proceed with a Special Hearing, which is like a trial, but usually held before a Judge alone.

A Special Hearing must be conducted as soon as practicable after the Court or Mental Health Review Tribunal determines an accused person will not, during the period of 12 months after a finding that the person is unfit to be tried, become fit to be tried.

A Special Hearing is for the purpose of ensuring, despite the unfitness of the accused person to be tried in accordance with the normal procedures, that they are acquitted unless it can be proved to the required criminal standard of proof that, on the limited evidence available, the person committed the offence.

While an accused person can elect to be tried by a jury, Special Hearings are usually conducted by Judge alone given the various complexities often associated with the unfitness of the accused person.

The verdicts available at a Special Hearing are:

  1. Not guilty – If an accused person is found not guilty, they are to be dealt with as if they had been found not guilty in ordinary criminal proceedings.
  2. A special verdict of act proven but not criminally responsible – This verdict is taken for all purposes to be a verdict reached as in ordinary criminal proceedings and must be referred to the Mental Health Review Tribunal.
  3. That on the limited evidence available, the accused person committed the offence or an alternative offence – This verdict constitutes a qualified finding of guilt, but not a conviction in law.

If after a Special Hearing, the Court finds that the accused person committed the offence or an alternative offence, the Judge will determine the likely sentence that would have been imposed if they were fit for trial and then may:

  1. Release the person conditionally or unconditionally; or
  2. Refer the person to the Mental Health Review Tribunal to make orders for their detention, care, and treatment.

If the person remains under the care of the Mental Health Review Tribunal, they will be reviewed every six months.

Why Jackson John?

At Jackson John Defence Lawyers, we offer a compassionate and supportive approach, working closely with our clients to understand their unique circumstances and build a defence strategy that is tailored to your specific needs. With our experience and dedication, we are confident that we can help you achieve the best possible outcome in your case. 

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© 2024 JACKSON JOHN DEFENCE LAWYERS – Privacy Policy 

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Acknowledgement of Country

In the spirit of reconciliation, Jackson John Defence Lawyers acknowledges the Traditional Custodians of country throughout Australia and their connections to land, sea and community. We pay our respect to their Elders past and present and extend that respect to all Aboriginal and Torres Strait Islander Peoples today.