2009 NSW Inmate Health Survey disclosed 47 percent of male and 54 percent of female in NSW custody had been diagnosed with a mental illness or disorder.
NSW Criminal Courts statistics 2013 and MHRT Annual Report 2013/2014 revealed that approximately 3600 criminal law matters were finalised in District and Supreme court IN 2013, but only about 80 decisions were made under the Mental Health Forensic Provisions Act.
Criminal law recognizes that a person’s mental illness should be taken into account when they are tried for a serious crime and when they are sentenced. Usually, a psychiatric report is used when the accused person is raising the defence of mental impairment or fitness to stand trial in Criminal law proceedings. Nevertheless, the defence of mental illness is often viewed as an easy option and a loophole used by criminals to avoid punishment for their crimes.
Why mental illness is a defence
Under Australian Criminal Law, the key element to satisfy the person who is guilty of a criminal offence is the person must commit the unlawful act, while the person must intend to do wrong. Therefore, if an accused is suffering from a mental disorder, which disallows the person to understand and reason why he/she did such.
Definition of Mental illness
Criminal law proceedings in Local Courts of NSW, it defines mental illness in accordance with the Mental Health Act 1990 (NSW). However, the definition of mental illness when used in the NSW Higher courts in criminal law proceedings is different. It determines mental illness according to M’Naghten Rules., it is as follows:
“to establish a defence on the ground of insanity, it must be clearly proved that, at the time of the committing of the act, the part accused as labouring under such a defect of reason, from the disease of the mind, as not to know the nature and quality of the act he was doing; or if he did know it, that he did not know he was doing what was wrong.”
Fair Criminal Trial
The defendant must be able to understand the Criminal trial proceedings, ability to participate in the Criminal proceedings and ability to defend himself/herself when the accused goes under the Criminal trial. It is a different and separate question that the accused’s fitness at the time of the offence and time of the trial.
If the defendant is mentally fit to be tried but was mentally ill at the time the offence was committed, the matter will be heard as a normal criminal trial. A defence of mental illness can be raised. The burden of proof of mental illness on the balance of probabilities rests with the party that raises the issue. if the person is mentally unfit to stand trial, the criminal proceedings will be heard at a special hearing.
The public misconception in Criminal law proceedings
The public had a misunderstanding regarding the results of a successful mental illness defence. Opposite from the popular public belief, a successful defence of mental illness can produce an outcome, that is potentially more severe than a guilty verdict. The defendant is not immediately released at the completion of the criminal trial if he/she is found not guilty due to mental illness, rather the defendant is subsequently detained in strict custody in gaol or the locked ward of a psychiatric hospital for an undetermined period of time. then he/she becomes a ‘forensic patient’ and the Mental Health Review Tribunal is required to review the patient’s case as soon as practical and make recommendations for their care, treatment and release. Only the Governor can grant the release.
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