In June of this year, the NSW parliament passed legislation that changes how people with mental health impairments will be dealt with by the NSW legal system. These changes come in under a Bill called the Mental Health and Cognitive Impairment Forensic Provisions Bill 2020 (the New Bill).

Here’s what that means for the people of NSW: 

Rationale behind the new laws for mentally ill persons

The New Bill is designed to clarify the powers the NSW Local Courts have when determining the guilt of accused persons, including powers relating to sentencing, treatment, and care. It also introduces a ‘legal test’ for defendants to determine whether they are fit to be tried. 

These new features should allow for a more consistent approach within the NSW courts in cases where the defendant may not be criminally responsible for their actions. 

Increased victim recognition in NSW criminal proceedings

Many jurisdictions around the world recognise that the acts of persons who are incapacitated to the point they can’t distinguish right from wrong shouldn’t be criminally punished, including NSW.  That said, the finding of ‘not guilty by reason of mental illness’ has been criticised by victims and victim advocates. 

The New Bill changes the finding of ‘not guilty by reason of mental illness’ to the special verdict of ‘act proven but not criminally responsible’. This special verdict recognises the crime against the victim, but also protects mentally ill offenders in the court system. 

You can read more in this article by ABC News. 

Factors considered by NSW Courts where mental capacity is in question

A person’s mental capacity at the time of the crime and at the time of the hearing are both important. 

Fitness to Stand Trial

If a person is mentally ill and isn’t considered ‘fit to stand trial’, their case will be put on hold until they regain their mental capacity.

To determine whether a person should be tried for an offence, the court will consider whether that person can understand the: 

• Offence; 
• Effect of pleading guilty or not guilty in court; 
• Court proceedings, in a general sense; and 
• Evidence against them. 

Their ability to instruct their lawyers will also be an important consideration. 

Mental incapacity at the time of the crime

A person might be mentally ill at the time of an offence, but then recover by the time of their trial. If the judge or jury find that the accused person was mentally incapacitated at the time of the crime, the judge has powers under the New Bill to find the ‘act proven but not criminally responsible’ and increased sentencing options. 

Changes to sentencing in mental incapacity cases in NSW

Under the New Bill, a NSW judge can make an order to dismiss a charge and discharge the defendant. 

The defendant may be discharged: 

• Into the care of another person; 
• Subject to certain conditions, including conditions relating to treatment and assessment; or 
• Unconditionally. 

It’s important you have a lawyer help with your criminal case in NSW

The law related to a finding of mental incapacity in NSW is complex. If you want a finding of ‘act proven but not criminally responsible’ in your criminal matter, Altria’s experienced criminal lawyers help put the law on your side. 

Reach out for your FREE case assessment. 

Your first consultation is free too!