B U R E A U O F C R I M E S T A T I S T I C S A N D R E S E A R C H

CRIME AND JUSTICE

Bulletin NSW Bureau of Crime
Statistics and Research

Contemporary Issues in Crime and Justice Number 38

October 1998

Mental Health and the

Criminal Justice System
Karen Freeman

INTRODUCTION with mentally ill persons who commit a In NSW the defence of mental illness is
more serious criminal offence and available in the District and Supreme
It has long been recognised that there is appear in either the District or Supreme Courts (Higher Courts). These courts
widespread community fear and Court (i.e. the Higher Courts). It explores hear serious offences such as serious
misunderstanding of people who suffer what happens to people who are sexual offences, robbery and murder. In
from mental illness. Community attitudes mentally unfit to stand trial, whether NSW the defence of mental illness can
concerning mentally ill offenders and mentally ill offenders are better off using be raised for all types of crimes heard in
their treatment by the criminal justice the defence of mental illness, what other the Higher Courts. However in practice
system are no exception. Much of the defence exists for persons suffering from this defence only tends to be used for
misunderstanding comes from a mental disorder, and what happens to serious offences, such as murder.
sensational depictions of mentally ill prisoners who become mentally ill while
persons and the insanity defence in film in custody. The defence of mental illness is not
and television, combined with a general commonly used in the NSW Local
ignorance of the true legal implications Courts, which hear less serious criminal
and procedures. The defence of mental WHY CONSIDER MENTAL offences. Rather, a matter may be
illness is often viewed as an easy option ILLNESS AS A DEFENCE? dismissed by a Local Court if the
and a loophole used by criminals to magistrate finds the defendant to be a
escape punishment for their crime.1 This Under Australian criminal law, in most mentally ill person.2
view frequently surfaces after a shocking cases, for a person to be considered to
crime which sparks debate over the have committed a criminal offence, there A 1996 NSW Law Reform Commission
offender’s state of mind: whether such an are several criteria which must be met. report recommended that the defence of
offender must be ‘mad’ to commit such a Besides showing that the person ‘mental illness’ be change to ‘mental
crime or simply ‘bad’. There is also a committed the unlawful act, a mental impairment’ to ensure intellectual
common fear that the perpetrator of such component must be satisfied. The disability is also considered.3
a crime will feign madness to escape
mental component is referred to as the
punishment.
mens rea, meaning ‘intention to do
This bulletin provides a summary of the wrong’. This intention must be WHO IS CONSIDERED A
ways in which mentally ill offenders are established for most findings of criminal MENTALLY ILL PERSON?
dealt with by the New South Wales responsibility. The importance of mens
(NSW) Criminal Courts and attempts to rea is obvious. For example, if a person Definitions of mental illness and mentally
answer many of the common questions accidentally mistakes a bag for their own ill persons have varied over time and still
people have about mentally ill offenders and walks away with it, it would not be vary across professions and legal
and mental illness as a defence. The reasonable to convict the person of a jurisdictions. Currently, the criteria for
first section examines why we have a criminal offence. being considered a mentally ill person
defence of mental illness and the second under NSW law differ from the criteria
section discusses what it means to be a If an accused person is suffering from a
used to assess mental illness by mental
‘mentally ill’ person. The third section mental disorder which deprives them of
health professionals.
explores what happens to mentally ill reason and understanding, the mens rea
necessary for criminal responsibility may
offenders who commit less serious The medical perspective
offences and appear before the NSW be lacking. If an individual lacks the
Local Courts, and the type of offences capacity for choice or voluntary action, it The medical definition of mental illness is
most commonly dismissed under the follows that, under the law, he or she far broader than the legal definition. A
Mental Health (Criminal Procedure) Act should not be held responsible for psychiatric diagnosis of a mental illness
1990 (NSW). The fourth section deals performing a criminal act. involves rigorously identifying a cluster of

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symptoms according to a standardised disorders are commonly diagnosed by The vast majority of criminal matters are
diagnostic classification system. Such mental health professionals, they would heard in the NSW Local Courts, where
systems are designed to provide not necessarily be considered ‘mental there is no statutory defence of mental
consistency in psychiatric diagnosis. illnesses’ under the statutory definition. illness and although, in theory, the
The most widely accepted psychiatric common law M’Naghten defence may
The Act also outlines certain conditions
classification system is outlined in the still be raised, the magistrate is more
under which a person cannot be
American Psychiatric Association’s likely to rely on the diversionary powers
considered mentally ill or mentally
Diagnostic and Statistical Manual of under the Mental Health (Criminal
disordered. These conditions include a
Mental Disorder, IV (DSM-IV). The DSM- Procedure) Act.9 This Act has two
failure to express or engage in a
IV manual provides a description of the sections that specify the conditions
particular political belief, religious
essential and associated features of over under which a magistrate can dismiss
opinion, philosophy or sexual preference.
300 mental disorders. A mental disorder criminal matters due to the mental
Furthermore, a person cannot be
is considered to be a group of clinically condition of the defendant. Section 33 of
considered a mentally ill or disordered
significant behaviours, or patterns that the Act applies to mentally ill persons,
person merely because that person
cannot be ‘an expectable’ response to a and s 32 refers to defendants with a
engages in sexual promiscuity, immoral
particular event or situation, and must be developmental disability and defendants
conduct, anti-social behaviour, or has
considered a ‘manifestation of a with a mental illness or condition who do
taken alcohol or any other drug, or if the
behavioural, psychological or biological not fall under the definition of a mentally
person has a developmental disability.6
dysfunction in the person’.4 DSM-IV ill person. Under s 33, a magistrate can
contains details on a wide range of The definition of mental illness when order the defendant to be taken to
mental disorders, including psychoses, used in the NSW Higher Courts is hospital for an assessment and then, if
neuroses, personality disorders, different again. In the NSW Higher
the defendant is found not to be mentally
substance abuse disorders, eating Courts (but not in the Local Courts) the
ill, the matter is taken back to court to be
disorders and anxiety disorders. ‘mental illness defence’ can be used by
heard. If the defendant appears to be a
mentally ill persons. However, the term
mentally ill person (within the meaning of
The legal perspective ‘mental illness’ is not defined in
the Mental Health Act) the magistrate
legislation for this defence, and is
As noted earlier, a clinical diagnosis of a has the power to discharge the
determined instead according to what
mental disorder is generally not sufficient defendant, with or without conditions,
are called the M’Naghten Rules. The
to establish the existence of a mental into the care of a responsible person. If,
M’Naghten Rules are as follows:
disorder for legal purposes. Furthermore, after six months, the person is not
the definition of mental illness used in the to establish a defence on the ground of brought back before the magistrate to
Local Courts (which deal with less serious insanity, it must be clearly proved that, deal with the charge, the charge is taken
matters) is different from that used in the at the time of the committing of the act, to have been dismissed.10
District and Supreme Courts (which deal the party accused was labouring under
with more serious matters). Section 32 states that Local Court
such a defect of reason, from disease
magistrates have powers for dealing with
of the mind, as not to know the nature
The definitions of mental illness and defendants who have a developmental
and quality of the act he was doing; or,
mentally ill persons used in relation to disability. Under this section a
if he did know it, that he did not know
criminal matters in the Local Courts are magistrate can dismiss the charges
he was doing what was wrong.7
set out in the Mental Health Act 1990 against such a defendant and discharge
(NSW). The statutory definition of This definition of insanity is a culmination the person (with or without conditions).
mental illness stipulates that it is a of laws concerning the common law
condition which severely impairs definition of insanity over the past For persons dismissed under s 32 or s
(temporarily or permanently) the mental century in Britain, with the essential 33, the fact that the charges have been
functioning of the person and is elements being a lack of reason and dismissed does not constitute a finding
characterised by the presence of one or understanding such that the accused did that the charges against the defendant
more of the following symptoms: not know what he or she was doing, and/ are proven or otherwise.
delusions, hallucinations, serious or could not distinguish between good
disorder of thought, a severe disorder of and evil.8 How many people are dismissed
mood, and sustained or repeated under the Mental Health
irrational behaviour indicating the (Criminal Procedure) Act?
presence of one of the symptoms CRIMINAL PROCEEDINGS
already listed.5 From a medical BEFORE THE NSW LOCAL Out of a total of 111,045 persons for
perspective, these symptoms would most COURTS FOR MENTALLY whom criminal charges were finalised in
often be associated with a diagnosis of ILL OFFENDERS NSW Local Courts in 1996, only 321
psychosis. A mentally ill person, persons (less than 1%) had their charges
according to the Act, is considered to be dismissed under s 32 or s 33 of the
Just as the Mental Health Act sets out
someone suffering from a ‘mental illness’ definitions of mental illness and mentally Mental Health (Criminal Procedure) Act.
where there are reasonable grounds to disordered persons in relation to criminal These 321 persons had a total of 555
believe that treatment or control of that matters in the Local Courts, the Mental charges dismissed in this manner; the
person may be necessary. Thus, Health (Criminal Procedure) Act 1990 555 charges accounted for only 0.3 per
although disorders such as personality sets out procedures for dealing with cent of the total 171,349 criminal charges
disorders, phobias, and substance abuse mentally ill offenders in the Local Courts. finalised in NSW Local Courts in 1996.

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Given that females accounted for only 15

per cent of all charges finalised in Local Figure 1: Offence type of charges finalised in 1996, NSW Local Courts
Courts in 1996, but 21 per cent of
charges dismissed under s 32 or s 33, it Figure 1a: All charges Figure 1b: Charges dismissed under
is clear that females were somewhat (n = 171,349) s 32, s 33, Mental Health
over-represented in persons dismissed Act (n = 555)
under s 32 or s 33.
Drug (2.2%) Driving (5.4%)
Against justice
What type of charges are most Drug (9.7%)
Driving (34.6%)
procedures (14.1%)
Other (11.4%)

commonly dismissed under the

Against justice
Mental Health (Criminal procedures Against good
Other order (14.6%)
Procedure) Act? (9.3%)
(5.0%)
Against good Against
Figure 1 shows all charges finalised in order (8.3%) Against the the person
person (14.3%) Theft (19.8%) (32.6%)
the NSW Local Courts by offence type Theft (18.9%)
(Figure 1a), and all charges dismissed
under s 32 or s 33 by offence type
(Figure 1b), for 1996. Although the
overall number of charges dismissed
under s 32 and s 33 is very low, these Figure 2: ‘Against the person’ charges finalised in 1996,
NSW Local Courts
sections are used more frequently for
some offence types than for others.
Figure 2a: All charges
Figure 2b: Charges dismissed under
Dismissals under s 32 or s 33 were most (n = 24,490)
s 32, s 33, Mental Health
common for offences ‘against the person’ Act (n = 181)
(181 charges), followed by ‘theft’
offences (110 charges), which together Assault ABH (18.7%) Assault ABH (18.2%)

accounted for over 50 per cent of Other

against person (3.8%)

Other against person (5.0%)
charges dismissed under s 32 or s 33 in Sexual offences against
Sexual offences

1996 (see Figure 1b). against children (1.6%)

children (1.1%)
Sexual assault (5.5%)
Sexual assault (1.6%)
Furthermore, for some offence
categories, a considerable disparity Other assault (70.2%)
Other assault (74.3%)
exists between the proportion of all
charges finalised and the proportion of
charges dismissed under s 32 or s 33.
For example, Figure 1 shows that ‘against good order’ accounted for 15 the person’ charges finalised, and
offences ‘against the person’ accounted per cent (81) of charges dismissed dismissed under s 32 or s 33, were ‘other
for 33 per cent (181) of charges under assaults’. The subcategory of ‘other
dismissed under s 32 or s 33, but a s 32 or s 33, and 8 per cent (14,274) of assaults’, which includes common
much smaller proportion, 14 per cent all finalised charges. assault, assault officer and malicious
(24,490) of all finalised charges. Figure wounding, accounted for 70 per cent
Given that the offence categories of
1 also shows that while 35 per cent (127) of ‘against the person’ charges
‘against the person’ and ‘theft’ accounted
(59,219) of Local Courts charges for the majority of dismissals under s 32 dismissed under s 32 or s 33 and 74 per
finalised in 1996 were for ‘driving’ and s 33, it is of interest to see whether cent (18,206) of all ‘against the person’
offences, only 5 per cent (30) of charges some offences within these categories charges finalised. ‘Assault occasioning
dismissed under s 32 or s 33 were for accounted for a disproportionately high actual bodily harm’ (‘assault ABH’) was
‘driving’ offences. percentage of dismissals. the next most common subcategory of
‘against the person’ offences both for
For other offence types the proportion Figure 2 shows a detailed offence
charges finalised and charges dismissed
of charges finalised and the proportion breakdown for persons charged with
under s 32 or s 33. ‘Assault ABH’
of charges dismissed under s 32 or s 33 offences ‘against the person’ for all
accounted for 18 per cent (33) of ‘against
were more similar. ‘Theft’ offences charges finalised and for charges
dismissed under s 32 or s 33, in the the person’ charges dismissed under s
accounted for 20 per cent (110) of
Local Courts in 1996. 32 or s 33 and 19 per cent (4,583) of all
charges dismissed under s 32 or s 33,
‘against the person’ charges finalised.
and 19 per cent (32,340) of charges It is evident that no particular type of
finalised in the Local Courts in 1996, ‘against the person’ offence is more Females, nevertheless, were over-
while offences ‘against justice likely to attract a s 32 or s 33 dismissal represented for persons dismissed under
procedures’, such as breaches of court than any other type: the breakdown of s 32 or s 33 for offences ‘against the
orders, accounted for 14 per cent (78) of offences ‘against the person’ was similar person’, accounting for 19 per cent of
charges dismissed under s 32 or s 33, for all charges finalised (Figure 2a) and charges dismissed under those sections
and 9 per cent (15,880) of charges charges dismissed under s 32 or s 33 but only 12 per cent of all finalised
finalised in the Local Courts. Offences (Figure 2b). The most common ‘against charges for offences ‘against the person’.

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conducted and reports to be presented

Figure 3: ‘Theft’ charges finalised in 1996, NSW Local Courts to assist in making their decision. If the
question of fitness is raised and the
accused is found fit to be tried (3), the
Figure 3a: All charges Figure 3b: Charges dismissed under criminal proceedings recommence in the
(n = 32,340) s 32, s 33, Mental Health
Act (n = 110) usual manner, that is, the accused then
goes through the usual trial process (4).
Vehicle theft (7.7%) Breaking and entering Vehicle theft (11.8%) Breaking and entering If the accused is found unfit to be tried
(11.6%) (11.8%)
(3), he or she is referred to the Mental
Unlawful Unlawful
Fraud (8.2%)
possession possession Health Review Tribunal (hereafter ‘the
(18.9%) (10.0%)
Fraud Tribunal’) to determine if he or she is
(18.8%)
likely to become fit to be tried over the
next 12-month period (5).
Other larceny Shop stealing Other larceny Shop stealing
(29.0%) (14.0%) (27.3%) (30.9%) When and if the Tribunal forms the view
that it is unlikely that the person will
become fit to be tried within the year (6),
a ‘special hearing’ is held by the Court
Figure 3 shows an offence breakdown mentally ill offender better off using the (7). This special hearing is conducted, in
for ‘theft’ charges finalised in the Local mental illness defence? Fourthly, what a way which is as close to a normal
Courts and for ‘theft’ charges dismissed defence exists for persons who suffer criminal trial as possible, and the
under s 32 or s 33, in 1996. The from a mental disorder that impaired their defendant can raise any defence that
breakdown of ‘theft’ offences for all mental responsibility at the time of could be used at an ordinary hearing,
charges finalised (Figure 3a) was not committing the offence but does not meet including the mental illness defence. At
entirely consistent with the breakdown the conditions for using the mental illness a special hearing, the accused is taken
for ‘theft’ offences dismissed under s 32 defence? And finally, what happens to to have pleaded not guilty, and must be
or s 33 (Figure 3b). offenders who become mentally ill after acquitted unless it is ‘proved on the
being sentenced to prison? limited evidence available’ that the
Figure 3 shows ‘shop stealing’
accused committed the offence. If the
accounted for the largest proportion
(31%, 34 charges) of charges dismissed What happens to persons who are offence is proven on the limited evidence
under s 32 or s 33 for ‘theft’ offences, but mentally unfit to stand trial? available (8), the penalty handed down
must not be greater than that which
accounted for only 14 per cent (4,533) of A fair criminal trial requires the would have been imposed after
all ‘theft’ charges finalised. The defendant’s understanding of the trial conviction at a normal criminal trial (9).
subcategory ‘fraud’ accounted for a proceedings, ability to participate in the If the Court indicates that it would have
somewhat smaller percentage (8%) of proceedings and ability to defend imposed a sentence of imprisonment,
‘theft’ offences dismissed under s 32 or s himself or herself. It is the person’s the Court must nominate a term, called
33 than it did for all ‘theft’ charges fitness at the time of the trial that is the ‘limiting term’. Upon receiving a
finalised (19%). relevant to the question of fitness to limiting term the person concerned
Females accounted for 25 per cent of all stand trial, not the person’s fitness at the becomes a ‘forensic patient’ and must be
finalised charges relating to ‘theft’ time of the offence. Figure 4 provides a referred to the Tribunal for assessment.
offences and 26 per cent of ‘theft’ offence simplified outline of the paths that can Forensic patients can be detained in
charges dismissed under s 32 or s 33. be followed for accused persons when hospital until a recommendation for
the question of fitness to be tried is release is made by the Tribunal and
raised.11 Each step in the figure is approved by the Minister for Health.
CRIMINAL PROCEEDINGS numbered, and references to these If, on the other hand, the outcome of the
BEFORE THE NSW DISTRICT steps in the text below are accompanied special hearing is a successful mental
AND SUPREME COURTS FOR by the relevant number in brackets. illness defence, the accused person
MENTALLY ILL OFFENDERS receives a ‘special verdict’ whereby he or
The question of the accused’s fitness to
stand trial can be raised at any time she is found not guilty on the grounds of
Generally, persons who are charged with
during the proceedings, but it is usually mental illness and is held in custody for an
serious (i.e. indictable) offences stand
raised before arraignment (1).12 Once indefinite period as a forensic patient (10).
trial in either the District or the Supreme
Court. There are five questions which the question of fitness to stand trial has Where the Tribunal finds that, on the
need to be addressed in relation to been raised in good faith, the Court balance of probabilities, it is likely that
mentally ill persons who appear before usually conducts an inquiry to determine the accused will become fit to be tried
the District or Supreme Courts. Firstly, the accused’s fitness (2). The person’s within 12 months (6), the Court can
what happens when the accused is not fitness is determined by a judge or a jury arrange for treatment and either bail or
mentally fit to stand trial? Secondly, what assembled for the inquiry, with the detention, for a period up to 12 months
happens if a person is mentally fit to determination of fitness being based on (11). The Tribunal reviews the person’s
stand trial, but was mentally ill at the time the balance of probabilities. The Court case on a regular basis and advises the
of committing the offence? Thirdly, is a may call for a medical examination to be Attorney General when they consider the

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Figure 4: Fitness to stand trial

(1)
Question of
fitness is raised

(2)
Court conducts an inquiry
into the person’s fitness

(4) (3)
Hearing recommences YES Found fit to be tried
as a normal court trial

NO

(5)
Tribunal determines
likelihood of fitness to stand
trial in next 12 months

(6)
(11) Likely to become
Person detained YES fit to be tried in the next
or granted bail 12 months

NO

(12)
(13) (7)
Tribunal finds person
Court conducts a YES fit to be tried within 12 months NO Court conducts
further inquiry into of finding of unfitness special hearing
the person’s fitness

(14)
YES Found fit to be tried NO
at inquiry

(10)
(8)
Person released or held
Proven on the limited
as a forensic patient NO
evidence available
(if found not guilty by
reason of mental illness)
YES

(9)
Person receives penalty

 B U R E A U O F C R I M E S T A T I S T I C S A N D R E S E A R C H

person has become fit to be tried (12). Is a mentally ill offender better off the fact that the Mental Health Act 1990
Once the Tribunal considers that the using the mental illness defence? stipulates that a person under the
accused has become fit to be tried, the influence of drugs is not automatically
Attorney General can then request that There is a great deal of public considered mentally ill, in practice the
the Court hold a further inquiry regarding misunderstanding regarding the relationship between drug use and
the accused’s fitness (13). If the person is consequences of a successful mental mental illness is a complex one. It is not
found fit to be tried at the inquiry (14) the illness defence. Contrary to popular always possible to distinguish some
proceedings recommence as a normal belief, a successful defence of mental drug-induced states from psychotic
trial (4). If, after 12 months, the person is illness can produce an outcome that is disorders. For example, sometimes it is
still considered unfit to be tried, the potentially more severe than a guilty not clear whether drug taking or mental
Attorney General can order a special verdict. Unlike all other findings of not illness came first. A person who has a
hearing to be conducted (7). guilty, a person found not guilty due to mental illness may be taking drugs in an
mental illness is not immediately attempt to ‘self-medicate’ in order to
The frequency with which persons are
released at the completion of the trial. quieten the voices they hear or the
found unfit to be tried is low. In 1996, of
Regardless of the mental health and strange feelings they experience. On the
the 3,792 persons whose cases were
custodial status of the accused other hand, mental illness may result
finalised in the NSW Higher Courts, the
throughout the duration of their trial, upon from drug taking. When mental health
Tribunal conducted only 11 reviews of
persons in relation to a determination of their plea of ‘not guilty by reason of mental professionals disagree about a patient’s
fitness to be tried. The Tribunal illness’ being accepted by the Court, the diagnosis, the difference in expert
determined that 10 persons probably person is subsequently detained in strict evidence relating to the defendant’s
would not, during the 12 months after the custody in gaol or the locked ward of a mental illness is a matter for the jury to
finding of unfitness, become fit to be tried, psychiatric hospital for an undetermined take into account.
and that one person was fit to be tried.13 period of time. Such a person then
becomes a ‘forensic patient’ and the Mental What defence exists for persons
What happens if a person is Health Review Tribunal is required to who suffered from a mental
mentally fit to stand trial, review the patient’s case as soon as disorder that impaired their
but was mentally ill at the practical and make recommendations for
mental responsibility, but does
time of committing the offence? their care, treatment and release. Release
not meet the conditions for
can only be granted by the Governor, after
A defence of mental illness can be raised a recommendation for release, to which the
using the mental illness defence?
at either a special hearing or a normal Attorney General does not object, has The defence of diminished responsibility
criminal trial. If the defendant is been made by the Tribunal. is also available in NSW. Unlike the
considered fit to be tried, yet was
Of the 10 patients found not guilty by defence of mental illness, the defence of
mentally ill at the time the offence was
reason of mental illness in 1996, only diminished responsibility can only be used
committed, the matter will be heard as a
four were recommended for immediate as a defence to murder. Furthermore, if
normal criminal trial but the defence of
release with conditions, and no the defence of diminished responsibility is
mental illness may be used. Once a
recommendations for immediate successful, it does not result in an
criminal trial has commenced in the
unconditional release were made.16 acquittal but a conviction of manslaughter
Higher Courts, questions of mental
with the imposition of a determinate
illness can be raised by either the
As of 31 December 1996 there were a sentence of up to 25 years in gaol.
defence or the prosecution. The burden
total of 89 forensic patients under review However, the defence of diminished
of proof of mental illness (on the balance
by the Tribunal as a result of being found responsibility can be used with a broader
of probabilities) rests with the party that
not guilty by reason of mental illness, range of mental conditions than the
raises the issue. When a special verdict
either at trial or at a special hearing. The mental illness defence, including
of not guilty by reason of mental illness
majority of these patients received their cognitive disorders falling outside the
is returned as a result of a criminal trial,
special verdict prior to 1996. Seventy- defence of mental illness, extreme
the accused is found to have committed
seven of these 89 forensic patients were emotional states and uncontrollable
an offence but, due to their state of
‘mental illness’ at the time of committing diagnosed as suffering from a psychotic urges.18 The most commonly diagnosed
the offence, is found not to know the illness, such as schizophrenia, at the disorders of people using this defence
nature of what he or she was doing, and time of the offence. Thirty-three of these include severe depression,
thus, not to have the necessary mens 77 patients were also considered to be schizophrenia, brain damage, personality
rea (wrongful intent) required for a guilty dependent on either illegal drugs or disorders and post traumatic stress
verdict.14 alcohol or both.17 disorder.19

The frequency of people obtaining a A further five of the 89 forensic patients Diminished responsibility as a defence to
special verdict of not guilty by reason of had their initial diagnosis changed. murder was introduced in 1974 to avoid
mental illness either from a special These five had originally been diagnosed handing down a murder conviction (and,
hearing or during a normal trial each with acute psychosis and schizophrenia, at the time, a mandatory life sentence) to
year in the NSW Higher Criminal Courts is but were later found to have been under offenders whose mental state was
low. Only 10 persons were found not guilty the influence of mind-affecting illegal impaired at the time of the killing, but did
by reason of mental illness in 1996.15 drugs at the time of the offence. Despite not meet the strict criteria for using the

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defence of mental illness outlined in the psychiatric hospital. A transferred The Tribunal reports that an increasing
M’Naghten Rules. The diminished prisoner (transferee) is classified as a number of prisoners are being transferred
responsibility defence reflects the forensic patient and the Mental Health to hospital and classified as forensic
principle that a person’s responsibility for Review Tribunal becomes involved in the patients because of chronic mental illness
committing murder should be considered patient’s assessment, treatment and which is often believed to have existed
diminished if the person experienced a care. For transferees, any detention prior to, and at the time of, their offence.
mental disorder that substantially period in hospital is treated as if it were a It appears that the health of such persons
impaired their mental responsibility at the period of imprisonment for the purpose rapidly deteriorates once they have been
of the person’s sentence. sent to prison, because the Tribunal is
time the offence was committed.20 The
finding an increasing proportion of
provisions for the use of the defence of
Only a small proportion of prisoners forensic transfer patients need long term
diminished responsibility are contained in
become forensic transfer prisoners. In treatment and rehabilitation and are
the Crimes Act 1900 (NSW) in s 23A. It unable to be returned to prison.27
1996 in NSW the Tribunal conducted 26
states that it is a precondition of the
initial reviews for forensic transfer
defence that the prosecution proves that patients.23 On prison census day in 1996,
the accused is otherwise liable for there were over 6,200 prisoners serving a SUMMARY
murder. Furthermore, the accused must full-time custodial sentence in NSW.24
satisfy three requirements before a • Mental illness can be considered as
defence of diminished responsibility can When the transferee is serving a short
part of a person’s defence in the Local
be accepted. Firstly, the person must term of imprisonment, regardless of
and the Higher Courts. A mental
have been suffering from an abnormality whether he or she is acutely or
illness defence reflects the principle
of mind at the time of the killing. chronically mentally ill, the Tribunal
that it is reasonable that a person must
Secondly, the abnormality of mind must generally recommends that the patient
have an intention to do wrong before
be a condition of arrested or retarded remain in the prison hospital until the
they can be held criminally responsible
development of mind, or from any expiry of their term of imprisonment. The
for an action.
inherent cause, or induced by disease or Tribunal may transfer the patient to a
general psychiatric hospital toward the • A criminal matter heard in the Local
injury. The defence of diminished
end of their imprisonment term for Courts may be dismissed under s 32
responsibility does not permit reliance on
continued treatment or make Community or s 33 of the NSW Mental Health
evidence of self-induced intoxication as a
Treatment Orders in relation to the (Criminal Procedure) Act if the
part of the defence. Thirdly, the
patient upon expiry of their term of magistrate finds the defendant is
abnormality must have substantially
imprisonment if the patient is still suffering from a mental condition,
impaired the accused’s mental
mentally ill. Transferee patients suffering mental illness or is a mentally ill
responsibility for the killing.
acute or chronic mental illness serving a person.
Given that the defence of diminished long or life imprisonment term with little
• Dismissal of a matter under s 32 or
responsibility can only be used as a chance of returning permanently to
s 33 of the Mental Health (Criminal
defence to an unlawful killing, and that prison can apply for a transfer to a
Procedure) Act does not mean that
successful use of the defence results in general psychiatric hospital. The
the charge has been proven or
a manslaughter conviction, it is used application must be approved by the
otherwise; rather it is a reflection of
very infrequently. Although recent Tribunal and must comply with specific
the accused’s mental status.
statistics on the use of the diminished criteria regarding the hospital to which
responsibility defence are not available, the patient is to be transferred, the • While the proportion of charges
between 1990 and 1993 only 14 per cent patient’s history and the likely course of dismissed in the Local Courts under s
of persons accused of murder raised the the illness. 32 or s 33 in 1996 was low, females
diminished responsibility defence, and a were somewhat over-represented.
The status of a transferee patient is The most common type of offences to
verdict of manslaughter was returned in terminated upon the expiry of the be dismissed under s 32 or s 33 were
approximately 61 per cent of those cases imprisonment term, on being transferred offences ‘against the person’,
where it was raised.21 back to prison, on being classified as a particularly assaults less serious than
In 1998, the defence of diminished continued treatment patient,25 or on assaults occasioning actual bodily
responsibility was amended and re- release following a recommendation by harm.
named ‘substantial impairment’ (Crimes the Tribunal that has been approved by
the prescribed authority. The Tribunal • In the NSW Higher Courts a person’s
Legislation (Diminished Responsibility)
must address the issue of the patient’s mental state at the time of committing
Act 1997).22
potential dangerousness when the offence and at the time of the trial
can be taken into account during a
What happens to offenders who considering the patient’s release or
transferring a forensic patient to a criminal trial.
become mentally ill after being
general psychiatric hospital. The Mental
sentenced to prison? • Persons who are mentally unfit to
Health Act stipulates that the Tribunal stand trial can have the matter heard
If a person has been convicted of an must be satisfied that the safety of the at a special hearing, where the matter
offence, sentenced to prison, and forensic patient and of members of the is either proved on the limited
subsequently becomes mentally ill, he public will not be seriously endangered evidence available or the person is
or she may be transferred from the main before a recommendation for release of acquitted. If proven on the limited
prison to a prison hospital or a the forensic patient can be made.26 evidence available the penalty

7
 B U R E A U O F C R I M E S T A T I S T I C S A N D R E S E A R C H

received cannot be more severe than • Offenders who become mentally ill 12. Arraignment is the formal procedure used in the District
and Supreme Courts to commence a criminal
the penalty which would have been while serving an imprisonment term proceeding.
received at a normal criminal trial. If can be classified as forensic transfer
acquitted, the person may be patients and transferred to a prison 13. Mental Health Review Tribunal 1997, Annual Report
1996, Mental Health Review Tribunal, Sydney.
released or held as a forensic hospital or, in some circumstances,
patient. to a general psychiatric hospital. 14. Mental Health (Criminal Procedure) Act 1990 (NSW), ss
37-39.
• In the Higher Courts, a person who
15. Mental Health Review Tribunal 1997, op. cit.
was mentally ill at the time of NOTES
committing the offence, to the extent 16. Mental Health Review Tribunal 1997, op. cit
that they did not know what they were
1. Hans, V. & Slater, S. 1985, ‘Plain crazy: Lay definitions 17. Mental Health Review Tribunal 1997, op. cit.
doing or did not know that what they of legal insanity’, International Journal of Law and
were doing was wrong, can use the Psychiatry, vol. 7, pp. 105-114. 18. NSW Law Reform Commission 1997, Partial Defence
to Murders: Diminished Responsibility, Report 82, NSW
defence of mental illness. Although 2. Mentally ill person as defined in the Mental Health Act Law Reform Commission, Sydney.
this defence can be used in relation 1990 (NSW).
to all offences it is usually only used 3. NSW Law Reform Commission 1996, People with an
19. Donnelly, H., Cumines, S., & Wilczynski, A. 1995,
Sentenced Homicide Offenders in New South Wales
as a defence to murder. Intellectual Disability and the Criminal Justice System,
1990-1993, Judicial Commission of New South Wales,
Report 80, NSW Law Reform Commission, Sydney.
Sydney.
• The proportion of offenders who are
4. American Psychiatric Association 1994, Diagnostic and
found not guilty due to mental illness 20. For more information on the defence of diminished
Statistical Manual of Mental Disorders, 4th edn,
in the Higher Courts is very small, American Psychiatric Association, Washington DC, responsibility see NSW Law Reform Commission 1997,
op. cit.
which belies the perception that the p.xxi

defence of mental illness is 5. Mental Health Act 1990 (NSW), Schedule 1. 21. Donnelly, H., Cumines, S. & Wilczynski, A. 1995, op. cit.
commonly exploited.
6. Mental Health Act 1990 (NSW), s 11. 22. The 1997 amending Act commenced on 3 April 1998,
• The consequence of a successful with prospective application.
7. M’Naghten’s Case 1843,10 Cl & Fin 200 at 210; 8 ER
mental illness defence is not 718 at 722. 23. Mental Health Review Tribunal 1997, op. cit.
necessarily an easier option than
8. Campbell, I.G. 1988, Mental Disorder and Criminal Law 24. NSW Department of Corrective Services 1997, NSW
receiving a conviction.
in Australia and New Zealand, Butterworths, Sydney. Inmate Census 1996 Summary of Characteristics, NSW
• Diminished responsibility as a Department of Corrective Services, Sydney.
9. The 1996 Law Reform Commission report recom-
defence to murder can be used as a mended that the Local Courts be given the power, after 25. The Tribunal can classify a patient who would cease to
defence for persons who suffered having considered diversionary options, to consider a be a forensic patient within six months as a continued
defence of not guilty by reason of ‘mental impairment’, treatment patient if the Tribunal considers that the
from a mental disorder that impaired and to conduct a summary ‘special hearing’. (NSW Law
patient is a mentally ill person who should continue to
their mental responsibly at the time Reform Commission 1996, op. cit.)
be detained for further observation and treatment.
of the offence but whose disorder 10. The legislation does not specify under what conditions the
26. These conditions also apply to recommendations for
does not meet the criteria necessary defendant could be brought back before the magistrate to
release of forensic patients who obtained their status of
for using the defence of mental deal with the matter further.
forensic patient through a finding of not guilty on the
illness. Where the prosecution 11. Figure 4 displays only the most common paths followed by grounds of mental illness or after a special hearing,
proves that the accused is otherwise persons whose fitness to stand trial is questioned. The upon being found unfit to be tried.
charges against the person may be dismissed at various
guilty of murder, the defence of 27. Hayes, R., Sterry, M., Greer, W., & Langley, A. 1995,
points along these paths, for example, if the nature of the
diminished responsibility reduces the matter is considered too trivial to conduct a special Forensic Patients: Background 1995, Occasional Paper
liability from murder to manslaughter. hearing. 14, Mental Health Review Tribunal, Sydney.

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