INTRODUCTION
10.1 “Criminal defences” is a broad term used here to describe excuses or justifications which exculpate an accused person. If the relevant legal test is satisfied, the defence removes or reduces criminal responsibility, resulting respectively in an acquittal or a finding of guilt on a lesser charge.1 This chapter considers the operation of criminal defences in the context of people with an intellectual disability, in particular the defence of mental illness. The defence of diminished responsibility is also particularly relevant, but not discussed in this Paper due to the fact that the Commission has a separate reference to the partial defences to murder, namely provocation, diminished responsibility and infanticide.2 Any concerns about the operation of the defence of diminished responsibility in relation to people with an intellectual disability should be forwarded to the Commission as a submission to that reference. This chapter also briefly discusses the difficulties which arise for people with an intellectual disability under other criminal defences, see paras 10.3-10.7.
10.2 Apart from criminal defences, if an offence requires proof of a particular state of mind, evidence of a mental impairment may support a denial that the accused had that state of mind, and lead to an acquittal. Such an argument is not strictly a defence, but rather a challenge to one element of the offence, each element of which must be established by the prosecution.3 Such an approach has been resisted in England, where the leading of evidence of abnormality without raising the insanity defence gives rise to a right of the prosecution to show that a defendant is insane in law. According to Glanville Williams, this rule prevents the release of insane persons who have committed serious crimes.4 The common law on this subject in Australia, though previously unclear, appears now to have been settled by the High Court in Hawkins.5 However the Criminal Code Bill 1994 (Cth), cl 7.3(6), provides that a person cannot rely on a mental impairment to deny voluntariness6 or the existence of a fault element but rather can rely on the defence of mental impairment to deny criminal responsibility. This provision is inconsistent with Hawkins in relation to denial of a fault element and is controversial.
INTELLECTUAL DISABILITY AND CRIMINAL DEFENCES OR EXCUSES
10.3 Many defences in the criminal law are subject to a “reasonable person” or “reasonable grounds” test. An objective requirement of this kind can represent a difficult or insurmountable obstacle to an accused with an intellectual disability. It is questionable whether such an obstacle should exist.
10.4 Self defence requires that the accused believed on reasonable grounds that it was necessary to do what he or she did in response to an attack or threatened violence.7 Another example is the Proudman v Dayman8 defence of reasonable mistake of fact which requires not only a genuine mistake but also a belief or perception based on reasonable grounds. An accused with an intellectual disability may be able to point to a genuinely innocent state of mind but that in itself is insufficient to found the defences instanced unless there was also an objectively reasonable basis for the accused’s belief. The orthodox view is that an intellectual disability is to be taken into account when assessing the accused’s subjective state of mind but that a test based on “reasonable grounds” or the “reasonable person” relates to the reactions, beliefs, or risk assessment of a person in the position of the accused but who is not suffering from an intellectual disability or any other “abnormal” condition.9 Similar considerations apply in the context of provocation, where an accused’s intellectual disability is relevant to the gravity of the provocation offered but not to the test whether an ordinary person might have been induced to lose self control.10 Duress is also subject to an objective limitation, namely the “ordinary firmness” test in relation to whether the duress should have been resisted.11
10.5 The extent to which criminal responsibility should be governed by objective tests is a notorious issue, both in relation to the elements of an offence and in respect of the elements of a defence. Despite centuries of case law and statutory development, little headway has been made in devising objective tests which can screen out false or spurious attempts at exculpation while also recognising the particular capacities and degree of blameworthiness of the individual accused. Objective tests in the criminal law result in the punishment and stigmatisation of an accused for not being a different person, namely someone else who is blessed with “normal” capacities of reasoning or self control. As currently formulated and applied, objective tests fail to assess whether the accused, given his or her intellectual disability, failed to live up to a reasonably expected standard and, if so, whether the failure was a sufficiently gross departure from that standard to warrant the imposition of liability for an offence. These questionable basic features of objective tests are of particular concern where an accused is charged with a serious offence such as murder or sexual assault but the issue of principle is also relevant to criminal responsibility generally.
10.6 The Commission is currently of the view that the problems created by objective tests of criminal responsibility need to be addressed with reference to their impact across the whole range of potential accused persons rather than in the particular setting of accused persons with an intellectual disability. Although the Commission is attracted to the possibility of applying a subjective test where an accused with an intellectual disability pleads a defence or excuse, that approach could hardly be recommended in isolation - it would require a far-reaching re-examination of the elements of defences which are now defined partly in terms of an objective test. Timely as such a re-examination would be, it is beyond the scope of the present reference.
10.7 The Commission proposes in this reference to confine its attention to the defence of mental illness or “mental impairment” as it would be re-titled under the re-formulation proposed by the Commission. The defences of diminished responsibility and provocation are, as discussed above, currently being examined in the reference on partial defences to murder. Other defences, including duress and the Proudman v Dayman defence of reasonable mistake of fact, warrant further consideration elsewhere.12
THE DEFENCE OF MENTAL ILLNESS
10.8 The defence of mental illness is available for all crimes, although as a matter of practice it tends to be raised only for serious offences. The defence is derived from the rules laid down in M’Naghten’s Case (hence it is often referred to as the “M’Naghten defence”) and is usually expressed by the following test:
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 party accused was labouring under such a defect of reason, from 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.13 [emphasis added]
The common law test applies in New South Wales, South Australia, Victoria, and the Commonwealth.14 In Queensland, Western Australia, Tasmania and the Northern Territory the defence is set out in legislation (“Codes”).15 The proposed national Criminal Code contains a general defence of “mental impairment” (see para 10.17), based partly on the M’Naghten defence.
10.9 In New South Wales, the Mental Health (Criminal Procedure) Act 1990 (NSW) (“the MHCP Act”) regulates the application of the M’Naghten defence. A “special verdict” of not guilty by reason of mental illness is returned where the person is found to have done an act or made an omission, but at the time was mentally ill so as not to be responsible according to law. “Mental illness”, for the purposes of this defence, is not defined by the MHCP Act or by any of the similar legislative provisions which preceded it.16 There appears to be only one case in which a definition is stated; but the definition of “mentally ill” - “so insane as to establish the defence of insanity to the offence charged” - is circular and adds nothing to the common law.17 The defence of mental illness regulated under the MHCP Act (not responsible “according to law”18) is therefore the M’Naghten defence. The consequences of such a verdict are discussed at paras 10.19-10.20.
10.10 A person who has been found unfit to be tried may also be found “not guilty on the ground of mental illness”,19 which is equivalent to a finding of “not guilty by reason of mental illness” at a normal trial,20 and has the same consequences.21 It is to be noted that the MHCP Act refers to the verdicts of mental illness in the normal trial and fitness proceedings respectively as “not guilty by reason of mental illness”,22 and “not guilty on the ground of mental illness”.23 It has been suggested that the terminology used throughout the Act should be uniform.24
Can a person with an intellectual disability be found not guilty on the ground of “mental illness”?
10.11 As discussed in Chapter 2, intellectual disability differs from mental illness, and is not an illness itself. It has been suggested that because intellectual disability was regarded medically as a form of insanity (or at least could not be differentiated from it) at the time the M’Naghten defence was formulated, it was intended to be included within the legal definition of insanity, and that this anomaly has been perpetuated by the failure of the law to keep pace with the recognition of the distinct nature of intellectual disability.25
10.12 The M’Naghten defence is concerned with a “defect of reason, from disease of the mind”. Does a “disease of the mind” include intellectual disability for the purposes of the defence? “Disease of the mind” is a legal rather than a medical term.26 In R v Porter it was stated that the requisite state of mind in legal insanity must be “one of disease, disorder or disturbance”:
That does not mean ... that there must be some physical deterioration of the cells of the brain, some actual change in the material, physical constitution of the mind. ... It does mean that the functions of the understanding are through some cause, whether understandable or not, thrown into derangement or disorder.27
Similarly, in R v Kemp Devlin J stated that:
[t]he law is not concerned with the brain but with the mind, in the sense that “mind” is ordinarily used, the mental faculties of reason, memory and understanding ... In my judgment the condition of the brain is irrelevant and so is the question of whether the condition of the mind is curable or incurable, transitory or permanent.28
10.13 Ierace argues that the psychological effect of an intellectual disability may amount to “a defect of reason” and that intellectual disability may be regarded as a “disease of the mind”.29 He stated that the authorities, which “emphasise the ramifications of the mental condition for the accused’s faculties of reason, memory and understanding”, do not exclude such a conclusion.30 Hence, although the cause of intellectual disability often is unknown, the focus upon understanding rather than physical attributes means that intellectual disability could be classified as “a disease of the mind” for the purposes of the M’Naghten defence. Another legal commentator has stated that:
there is no reason why a person who is born, and remains, mentally deficient should not be within the M’Naghten Rules if the degree of his mental incapacity otherwise amounts to insanity. The point is put beyond question by the codes, each of which expressly includes “natural mental infirmity” or “natural imbecility” within the definition of insanity. There is no warrant for introducing a difference between the common law and the codes here, and no reason for supposing that the High Court would do so.31
10.14 Noting the difference between the State Code provisions and the M’Naghten defence, other commentators have taken a contrary view:
the Codes recognise natural mental infirmity (Tasmanian Code - natural imbecility) as a possible ground upon which to ground a plea of insanity. Mental deficiency arising from arrested or incomplete mental development would probably be held to fall outside the scope of the phrase “disease of the mind” in the M’Naghten Rules. There is a dearth of case law, probably because most mental defectives would be found unfit to plead.32
Several submissions to the Commission considered that the inclusion of intellectual disability within the defence of mental illness is inappropriate for reasons discussed further below.33
10.15 Assuming that the M’Naghten defence does encompass intellectual disability, there remains a terminology problem:
[i]t is inappropriate and confusing to maintain that, under the law, insanity includes intellectual disability ...
... the law needs to be reformed so that intellectual disability does not continue to be defined as an illness for the purpose of defences to criminal charges. Quite apart from the questions of principle involved, it is ludicrous that during a trial the jury will hear from the experts that intellectual disability is not an illness and be then directed by the trial judge that they must consider it as such for the purpose of determining whether to return a special verdict of not guilty by reason of mental illness.34
Intellectual disability is a permanent condition which is rarely amenable to treatment, and so the use of the term “illness” is unsuitable and misleading. One submission argued that:
[t]he term “mental illness” is a vague generalisation which leaves an implication of prognostic improvement. It is archaic, derogatory and unspecific.35
10.16 There are fundamental problems beyond those of terminology when intellectual disability is treated as a sub-set of mental illness. Hayes and Craddock state that because the criminal law has failed to keep up with community/professional awareness of intellectual disability and improvements in habilitation programs, its continuing categorisation of people with an intellectual disability as insane or mentally ill is leading it to fail in its own aims of deterrence, punishment and rehabilitation in relation to them.36 The channelling of people with an intellectual disability from the criminal justice system into the mental health system (which occurs when the mental illness defence is made out) may not reflect or adequately address their needs in terms of supervision and care - however, this is not to say that the criminal justice system itself is capable of doing so.
10.17 The Victorian Law Reform Commission (“VLRC”) has recommended that:
the law relating to disease of the mind should not be altered. However, the outmoded and inappropriate term ‘disease of the mind’ should be replaced with the term ‘mental impairment’. This should be statutorily defined to include mental illness, intellectual disability, senility, brain damage and personality disorder. These conditions are already covered by the concept ‘disease of the mind’ but, for the sake of clarity, it is desirable to give this legislative form.37
A similar proposal is that put forward under the proposed national Criminal Code,38 which has recently been introduced as a Bill in the Commonwealth Parliament, for federal offences. This Bill includes the following redefinition of the defence:
7.3(1) A person is not criminally responsible for an offence if, at the time of carrying out the conduct constituting the offence, the person was suffering from a mental impairment that had the effect that:
(a) the person did not know the nature and quality of the conduct; or
(b) the person did not know that the conduct was wrong (that is, the person could not reason with a moderate degree of sense and composure about whether the conduct, as perceived by reasonable people, was wrong); or
(c) the person was unable to control the conduct.39
Under the Bill, cl 7.3(8), “mental impairment” includes senility, intellectual disability, mental illness, brain damage and severe personality disorder. Mental illness, but not intellectual disability, is defined in the Bill. The Explanatory Memorandum introducing the Bill commented that “[a] broad definition of mental impairment allows the jury to hear psychiatric testimony based on the latest expertise while properly leaving the ultimate question of responsibility to the jury”, noting that the Gibbs Committee and the VLRC had reached similar conclusions.40 The Bill also expands the M’Naghten defence to include the inability to control conduct.
10.18 Despite the possible problems caused by the overlap between intellectual disability and mental illness, it is important that there be an appropriate defence for people with an intellectual disability whose understanding is affected to the extent anticipated by the M’Naghten defence. Rather than proposing a separate defence on the grounds of intellectual disability, the Commission provisionally supports the inclusion of people with an intellectual disability under a single defence, as proposed in the national Criminal Code, changing the name to the “defence of mental impairment” to avoid the confusion caused by the reference to “mental illness”.41 The proposed national Criminal Code has resulted from an Australia-wide reform initiative and there are obvious advantages in recommending uniformity in this area. The Commission, however, has suggested changes to the consequences of a successful defence (see below) to overcome some of the difficulties which arise for people with an intellectual disability. To avoid confusion, however, the Commission will continue to refer to the defence of mental illness in the remainder of this chapter.
PROVISIONAL PROPOSALS FOR REFORM
33. That New South Wales adopt the proposed Commonwealth statutory version of the defence of mental impairment. Accordingly, all references in the Mental Health (Criminal Procedure) Act 1990 (NSW) to the defence/verdict of “not guilty by reason of mental illness” or “not guilty on the ground of mental illness” should be amended to “the verdict of not guilty because of mental impairment”. (Proposals below, however, will continue to refer to the defence of “mental illness” to avoid confusion.)
The consequences of the defence of mental illness
10.19 Currently, the issue of mental illness can be raised by either the accused or the prosecution, with the burden of proof (on the balance of probabilities) falling on the party who raises it.42 If the issue is raised, the Court must explain to the jury: the findings which it can make; the legal and practical consequences of those findings; the existence, composition, and function of the Mental Health Review Tribunal (“the Tribunal”); and the requirement that before releasing a person detained under the MHCP Act, the Tribunal must be satisfied that that person does not pose a danger to themselves or the public.43 If the jury returns a verdict of not guilty by reason of mental illness: “the Court must order that the person be detained in strict custody in such place and in such manner as the Court thinks fit until released by due process of law”.44 The person is held in prison or hospital as a “forensic patient”.45
10.20 As soon as practicable after a person has been detained as a forensic patient, the Tribunal must review that person’s case and make a recommendation to the Minister for Health46 about the person’s detention, care or treatment, or conditional/unconditional release (the “initial review”).47 This recommendation may be implemented by the “prescribed authority”, which (in relation to the mental illness defence) is the Governor.48 If there is no recommendation for release made after this initial review, the Tribunal may at any time, but must at least every six months, similarly review the person’s case and make an appropriate recommendation (the “subsequent review”).49 This process is outlined in Table 1 of Appendix B. A recommendation for release at any stage is made only if the Tribunal is satisfied that “the safety of the person or any member of the public will not be seriously endangered by the person’s release”.50 Where a recommendation for release is made upon a subsequent review, the Minister is required51 to notify the Attorney General of that recommendation, and to provide a copy of that notification to the Director of Public Prosecutions. The Attorney General then has 30 days to object on the following grounds:
If an objection is made, the Governor may not order the person’s release,53 otherwise, the Governor may order the person’s release.54
PRACTICAL IMPLICATIONS OF THE DEFENCE OF MENTAL ILLNESS
10.21 When a jury returns a verdict of “not guilty by reason of mental illness” under the MHCP Act, it is not making a determination as to guilt or innocence in the ordinary sense, but a finding on the mental responsibility of the offender at the time of the offence. The jury is called upon to make a legal determination based on clinical evidence. The complexity of psychiatric and psychological evidence may test the understanding of lay jurors. However, given that the quality of evidence should not be diminished by such concerns, this problem may only be overcome by careful judicial direction. Similarly, it is important that the jurors clearly understand the implications of a finding of mental illness and, as discussed, the MHCP Act provides that these be explained to them by the judge. Nevertheless the Commission has been provided with an example of a jury apparently misunderstanding such a defence and believing that the verdict would mean that the person would be returned to his/her family or placed in appropriate care.55
10.22 It is questionable whether such a finding should be termed a “defence” at all,56 since it may be (in practice rarely) sought by the prosecution and resisted by the defence, and if successful, it results in mandatory indeterminate detention with limited appeal rights. The Legal Aid Commission of NSW stated that while the defence of mental illness:
may well be effective in terms of avoiding a conviction, ... it is not appropriate and generally not in the intellectually disabled client’s best interest to obtain such a verdict.
...
A successful mental illness defence may ... be the worst possible outcome for a person with an intellectual disability.57
These concerns largely arise from the practical implications of the defence, which are discussed below.
Mandatory requirement for strict custody
10.23 Where a jury returns a special verdict of not guilty by reason of mental illness, the MHCP Act provides that the accused must be detained in “strict custody” until released by due process of law58 - in other words, mandatory indeterminate detention. There is no provision allowing immediate release by order of the court. It has been suggested that:
[o]ne can conceive of circumstances where, following the verdict, it would be inappropriate to deprive the person of his or her liberty, particularly if the person has been held on remand pending the trial or special hearing; certainly to not submit them to an indeterminate sentence. For instance, where the alleged offence is relatively trivial and the “mental illness” at law is a temporary aberration which clearly has passed.59
“Strict custody”
10.24 Not only is there no provision for release, but there is no provision for some other form of less restrictive conditions than “strict custody”, even though the person may have been in a less restrictive environment prior to the handing down of the verdict. The Mental Health Review Tribunal has commented:
It must be remembered that in most cases where a person found not guilty by reason of mental illness was charged with an offence, it was obvious to all that he or she was mentally ill at the time, so that the person immediately begins to receive psychiatric treatment, in particular, psychotropic medication. Such treatment will continue for the periods of up to three years which can ensue between the date on which the person was charged, and the date on which a verdict of not guilty by reason of mental illness is ultimately handed down by the court.60
For example, a person may have been residing in special cottages in the grounds of a psychiatric hospital while waiting for the matter to come to trial. An order for “strict custody” will require the person to be moved to a locked psychiatric ward, which may not be satisfactory for the person’s continuing treatment.61 Once detained as a forensic patient, a person’s release is subject to inevitable administrative delay: “[e]ven where the Mental Health Review Tribunal recommends an immediate release and this recommendation is followed by the Minister for Health and the Attorney General, the person in fact is not released for some weeks and perhaps months ...”.62 However long, detention in prison or the locked ward of a psychiatric hospital may have a negative impact on a forensic patient which is out of proportion to the seriousness of the alleged offence.
A judicial power to release?
10.25 Concerns about mandatory strict custody have particular force when the offence is one which would have attracted a non-custodial sentence upon a finding of guilt, for instance the Legal Aid Commission of NSW noted that: “[t]he requirement for strict custody can mean that someone who had been successfully residing in the community on bail for some time must be removed from that setting even for relatively minor matters where the judge might otherwise have ordered a bond.”63 The injustices which can arise from this requirement have been raised in consultations,64 particularly where the person had an undiagnosed mental illness at the time of the offence and has, since that offence responded well to medication over a period of some years, or has been on bail in the community and is settled into a helpful therapeutic environment. Upon the verdict, such a person must be immediately removed from that environment, involving a disruption to their treatment. The Commission acknowledges that such injustices are much more likely to arise when a person has a treatable mental illness. Judges have also on occasion commented on this requirement, for example Blanch J, when he was required by the section to order that a person be detained in a security ward of a psychiatric hospital, stated: “[t]he case is another illustration of the need for some greater degree of flexibility in the sentencing procedures under [the Act].”65
10.26 Two other examples of the need for a judicial power to release have been provided to the Commission. The cases concern people with a mental illness, but nonetheless illustrate the difficulties involved. The first person (“A”) satisfied the M’Naghten defence of insanity at the time of the alleged offence, but subsequent diagnosis and treatment had rendered him fit to stand trial. For some time prior to the trial A was living at home and regularly attending a sheltered workshop. Had he been able to plead guilty at trial, a bond would have been likely; but because he satisfied the M’Naghten defence at the time of the offence, the judge had no alternative but to order that A be detained in strict custody. Thus, A was: “removed from an eminently satisfactory and safe living and work situation, in the community and with his family, and instead placed in a closed [psychiatric] ward ... where he will remain until the Tribunal’s recommendation for release is considered by the Minister for Health and [the Attorney General].”66 The other person (“B”) was charged with making purchases made on credit cards without available funds. B had maintained consistently that he was innocent; yet rather than plead not guilty by reason of mental illness, and be detained at Long Bay Gaol prison hospital in lieu of an urgent Tribunal assessment, he preferred to plead guilty in the hope of receiving a bond.67
10.27 The basis of mandatory detention provides further concern. A person detained upon a finding of mental illness can be released only when the Tribunal considers that he or she poses no danger to themselves or any member of the public - in effect, when he or she is found to be not dangerous. However, there is no requirement that a person be dangerous before detention is imposed. Indeed, the alleged offence, for example, the credit-card fraud above, may involve no dangerous or violent behaviour. However, because an offender’s dangerousness is assessed only after detention is imposed, the imposition of detention necessarily involves an assumption that mental illness/intellectual disability and dangerousness are related. In its Annual Report for 1992 the Tribunal pointed to advantages of the present system, namely, the ability to assess a forensic patient within several environments (decreasing in their level of restriction), coupled with access to external and internal expertise, which allow it to identify and assess dangerous behaviour and facilitate the patient’s progressive release into the community, under appropriate conditions.68 Such considerations will not apply to those persons who are not dangerous to begin with. Dangerousness is an uncertain basis for detention (see Chapter 12); but assuming that it is an appropriate basis for detaining some offenders, its present indiscriminate application to all persons found not guilty by reason of mental illness suggests that a judicial power of release is necessary.
10.28 Division 7 of the Crimes Act 1914 (Cth) is significantly different on this point. The court must order the detention of a person acquitted because of mental illness;69 but:
(4) Despite subsection (1), the court may, if in the court’s opinion it is more appropriate to do so than to make an order under subsection (1), order the person’s release from custody either absolutely or subject to conditions to apply for such period as the court specifies in the order, not exceeding 3 years.
(5) The conditions may include:
(a) a condition that the person remain in the care of a responsible person nominated in the order; and
(b) a condition that the person attend upon a person nominated, or at a place specified, in the order for assessment of the person’s mental illness, mental condition or intellectual disability and, where appropriate, for treatment.70
Where a person has been granted conditional release, the person or the Director of Public Prosecutions may at any time apply to have those conditions varied.71
The recommendations of the Monitoring Committee
10.29 The New South Wales Department of Health Mental Health Act Implementation Monitoring Committee (“the Monitoring Committee”) has recommended in its Report that: “s 39 [of the] Mental Health (Criminal Procedure) Act should be amended to allow the court to continue bail or make such order as to custody as it sees fit pending review by the [Tribunal]”.72 This recommendation was not implemented in the Mental Health Amendment Act 1994 (NSW), which implemented some other recommendations of the Monitoring Committee, but further comments about the amendment of this section will be sought in a Discussion Paper to be released shortly by the New South Wales Department of Health.73
10.30 The difficulty is determining how s 39 should be amended, for example whether the Commonwealth approach should be adopted. Whereas in a bail determination one of the release criteria is whether the person presents a danger to another person or the public,74 the assessment of dangerousness in a release determination after a finding of not guilty by reason of mental illness (where the person has not previously been released) may have a different character.
Conclusions: mandatory strict custody
10.31 The Commission supports the inclusion in the MHCP Act of a judicial discretion to release, in appropriate cases, a person found not guilty by reason of mental illness during the period between the finding and the Tribunal’s initial recommendation as to detention/release (and the consideration by the government of that recommendation). Similar provisions to those in the Commonwealth legislation could be used. Where the person has been on bail prior to trial, the same or similar conditions of release could apply (however, release would not be by way of “bail”, as a charge would no longer lie against the person). Where the person has been on remand, conditional release could be granted where the judge considers it appropriate (for example, where there has been a substantial change in the circumstances in which bail was refused previously).
PROVISIONAL PROPOSALS FOR REFORM
34. That s 39 of the Mental Health (Criminal Procedure) Act 1990 (NSW) be amended so that, following a verdict of not guilty by reason of mental illness, the judge has the power either to order the detention of the accused, or in appropriate cases to allow for the person’s conditional release until the Mental Health Review Tribunal has made its recommendations and the prescribed authority has responded to them. (Consequential amendments to this proposal will need to be made if the role of the prescribed authority is changed, see Proposal 36 below.)
Indeterminate detention
10.32 The Mental Health Act 1990 (NSW) and its forerunner, the Mental Health Act 1983 (NSW), were assumed by some to do away with the concept of detention at the “Governor’s pleasure”. Rather, those Acts merely replaced the concept with a similarly unsatisfactory system of detention at the pleasure of the Minister, prescribed authority, and/or Attorney General. Recognising this, the Office of Legal Aid and Family Services commented that:
[g]iven that the result of being found not guilty is indeterminate detention, using the defence only appears to be advantageous in the most serious cases where the penalty for being found guilty is likely to be extremely severe. Legal representatives might, in the best interests of their client, pursue other options knowing that detention for a shorter period is preferable. Traditionally, people detained indeterminately have spent lengthy periods in custody, often far longer than those who receive definite sentences for similar crimes.75
Consultations have also referred to the difficult ethical issues which therefore arise for lawyers in this area, particularly if the offence is a relatively minor one.76 However, despite the perceived disadvantages of the insanity defence, any other alternative may in effect be inviting the client to invent a story which does not amount to insanity, or as in the example above, to decide to plead guilty.
10.33 As discussed above, release is possible only where the Tribunal is satisfied that the detained person would pose no danger to themselves or the public. The Legal Aid Commission of New South Wales noted that:
[a] person with a mental illness may satisfy the Tribunal that his/her release will not present a serious danger to the public and may progress from the prison hospital to open wards of a public hospital, and may finally progress to leave, with appropriate treatment conditions. ...
This path to freedom is not available to a person with an intellectual disability. By its nature, intellectual disability does not resolve with treatment and it is therefore very much harder to persuade the Tribunal that the dangerous behaviour said to have arisen from the intellectual disability will not recur in the future. Further, there are no “civilian” facilities in NSW providing some level of security where a person with an intellectual disability may progressively prove that he/she is no longer a danger. There are now specialist facilities for males at each level of security within the NSW prison system, but the rigidity of that system does not provide the same level of opportunities available to those with a mental illness.
...
The lack of certainty of release ... can of itself, be a factor giving rise to anger and other behaviour likely to affect the decision to recommend early release.77
However, it has been argued that an alternative to indeterminate detention for such a finding is not obvious.78 There are at least three possible options.
10.34 Option 1: Impose a term of detention equal to the maximum period of imprisonment for the offence. It seems unjust that a person who has been found “not guilty” should serve longer than the maximum penalty for a guilty verdict. If there are still concerns about the person’s dangerousness, civil commitment (or “scheduling”) is available. The disadvantages of this approach include the absence of a maximum period of imprisonment for common law offences; and the injustice of imposing the maximum penalty onto those found not guilty, when those convicted of serious offences often are dealt with more leniently. More fundamentally, the imposition onto a person of a term of detention, however named, for their commission of an offence, is inconsistent with the finding that the person is not guilty of that offence. For these reasons, this option is rejected by the Commission.
10.35 Option 2: Impose a limiting term of detention not exceeding the maximum period of imprisonment for the offence. This option is similar to the procedure contained in s 20BJ(1) of the Crimes Act 1914 (Cth), which provides that where a person charged with an indictable offence:
is acquitted because of mental illness at the time of the offence, the court must order that the person be detained in safe custody in prison or in hospital for a period specified in the order, not exceeding the maximum period of imprisonment that could have been imposed if the person had been convicted of the offence charged.
This procedure is similar to the imposition upon a person found unfit to be tried, of a limiting term after they have been found at a special hearing, upon the limited evidence available, to have committed the offence charged.79 The advantage of this option is that release would be automatic upon the expiry of the limiting term, and so not subject to the uncertainty of the present release process. A disadvantage is that by linking release to the sentence imposed, rather than to dangerousness, the release of a dangerous person may be seen as a failure by the criminal justice system to protect the public. However, the criminal justice system is concerned with punishment commensurate to the criminal act - further detention is a civil matter, as discussed for Option 1 above. A person who is found not guilty by reason of mental illness is by definition outside the reach of the criminal justice system, and so the imposition of punishment by that system is inappropriate. Also, as with the first proposal above, this option involves the imposition of detention, based upon the hypothetical finding of guilt of a person already found not guilty. For these reasons, this option also is rejected by the Commission.
10.36 Option 3:Indeterminate detention subject to release on the recommendation of the Tribunal. A third option has been suggested:
The person is subject to an indefinite period of detention as at present, but the risk of an undue period of detention being served is ameliorated by eliminating a discretion on the part of the Minister to decline the Tribunal’s recommendations for release.80
This option would have the advantage of allowing the immediate (that is, free from Ministerial discretion) implementation of Tribunal recommendations for the release of people either detained or subject to an interim release order by the court; and retaining (the absence of) dangerousness as the release criterion in those cases where it is appropriate.
10.37 The removal of Ministerial discretion has already been discussed in Chapter 4 (paras 4.46-4.56) and will not be repeated here. The Commission repeats its proposal that such discretions should be abolished. The Commission currently supports the third option.
Conditions of release
10.38 Where release is recommended by the Tribunal, it may be unconditional or conditional.81 The need for, and form of, conditions often affects the determination of whether a person will be dangerous upon release. However, despite the significance of conditions, both the Mental Health Act 1990 (NSW) and the Regulations are silent as to what they may be. In practice, it appears that the Tribunal formulates conditions as part of a comprehensive recommendation to the Minister; and that the Minister may accept the recommendation in whole or in part, and return a rejected recommendation for further assessment or clarification.82 Hence, as part of the discretion over release decisions, the Minister appears to exercise a discretion over the number and type of conditions imposed. Hayes and Craddock state that although in practice the Tribunal has overseen post-release programs: “[t]he Act should specify that the Tribunal has power to recommend conditions of release, as the Tribunal is more likely to be able to fashion appropriate conditions than the Minister”.83 By way of contrast, the Crimes Act 1914 (Cth) provides that the Commonwealth Attorney-General sets release conditions; and that Act contains various optional, but non-exhaustive, conditions84 which can be imposed for a period up to a specified maximum.85
10.39 The Commission considers that the Tribunal is best placed to formulate appropriate conditions for release, as it is the body charged with assessing the person’s dangerousness; and that political considerations are separate from this assessment and should not impinge upon it. Hence, the Commission has proposed that the Tribunal be the final arbiter of release decisions, and that this be achieved by removing any direct or indirect Ministerial discretion over Tribunal recommendations. It may be appropriate for the Mental Health Act 1990 (NSW) to contain a non-exhaustive list of conditions appropriate to a majority of situations (if such a list can in fact be formulated), which will have an educative role for the public, and, by making decisions more openly structured, balance the transfer of discretionary power from elected representatives to the unrepresentative and largely anonymous Tribunal.
PROVISIONAL PROPOSALS FOR REFORM
35. That the provisions in the Mental Health (Criminal Procedure) Act 1990 (NSW) and the Mental Health Act 1990 (NSW) that a person found not guilty by reason of mental illness shall be detained (or released conditionally by the judge as proposed in Proposal 34) on an indeterminate basis, until the Mental Health Review Tribunal is satisfied that the person is not dangerous, be retained.
36. The Commission repeats Proposal 23 in relation to the abolition of the executive discretion in this area:
That the executive discretion be removed from all decisions regarding forensic patients (except as limited by Proposal 24) so that all decisions as to their placement, security conditions and release are made by the Mental Health Review Tribunal. (This proposal would require consequential amendments to the Mental Health Act 1990 (NSW) and the Mental Health (Criminal Procedure) Act 1990 (NSW) to enable the Tribunal to make orders rather than recommendations.)
37. That the Mental Health Act 1990 (NSW) and/or the Mental Health Regulation 1990 (NSW) be amended to include a non-exhaustive list of release conditions which may be imposed by the Mental Health Review Tribunal.
The duty to give reasons and appeals
10.40 Presently, neither the Tribunal nor the Minister have to give reasons for a decision. Whether the Tribunal or the executive government is the determinative body for decisions concerning forensic patients, it is suggested that the decision maker should be required to supply reasons for decisions - to facilitate any proposed appeal process, and to ensure natural justice. The Commission seeks submissions in this area.
10.41 There is little in the Mental Health Act 1990 (NSW) by way of appeal rights for forensic patients. There is a limited right of appeal to the Supreme Court against a determination of the Tribunal, or a failure/refusal of the Tribunal to make a determination.86 A determination includes whether a person has become fit to be tried, and whether the person or anyone else will be endangered by the person’s release; but the Court cannot review Tribunal recommendations, such as whether a person should be released.87 Also, there may be an appeal from a Tribunal recommendation that a forensic patient’s detention in a hospital (rather than a prison) should continue.88 Although the Tribunal cannot recommend a person’s release unless it makes a determination as to dangerousness, a determination that a person is not dangerous does not oblige the Tribunal to recommend release. Because Tribunal determinations do not include the decision on whether or not to recommend release, the Tribunal exercises an unappealable discretion on these decisions.
10.42 The decision by the Governor not to implement a Tribunal recommendation for release is not reviewable by a court of law.89 As discussed in Chapter 4, the Monitoring Committee suggested that this may be in breach of Australia’s obligations under the International Covenant on Civil and Political Rights.90 If executive discretion over Tribunal decisions is to remain, it has been suggested that two consecutive rejections of Tribunal recommendations to release should provide the person detained with a right of review to a single Supreme Court Judge (having regard to specific criteria), with a further appeal (only in law) to the Court of Criminal Appeal.91 If, as is presently the case, the implementation or rejection of release recommendations remains subject to unqualified and unspecified Ministerial discretion, the grounds upon which an appeal against the exercise of that discretion could be based are not obvious. The Commission seeks submissions in this regard.
10.43 If, as proposed, the Tribunal becomes the ultimate authority, the question arises whether broader appeal rights are appropriate or whether such rights could make the existing (relatively informal) decision-making process unnecessarily legalistic and virtually unworkable. Presumably such an appeal could be available to a single judge of the Supreme Court on questions of law; but not on the merits, as a judge would not have the same level of expertise as an expert Tribunal about the facts of the person’s mental condition. Appeal rights could lead to additional complications, for instance, the Tribunal has to review forensic patients every six months, and the time taken to hear an appeal means there could easily be an overlap between the appeal and the next required Tribunal hearing, at which the recommendations made may well change and the issue involved at the appeal disappear. Other practical issues would include the difficulties involved in the person detained (which includes people found unfit to be tried and people found not guilty on the grounds of mental illness) giving instructions to a solicitor about seeking an appeal. Such appeal rights could dramatically increase the workload of the Supreme Court. Though it is generally desirable to provide for some form of review, the Commission believes the area of appeal rights raises significant issues about which it should seek further information and submissions (particularly from the Tribunal and practitioners in this area) before making any further proposals. The Commission therefore seeks answers to the following questions:
POINTS FOR FURTHER DISCUSSION
1. If the executive discretion over Tribunal recommendations is abolished, what additional appeal rights would be appropriate?
2. To where should an appeal lie?
3. Should such an appeal be on questions of law alone, or should an appeal be available on the merits of the decision?
4. Would the availability of such rights require changes to the nature of Tribunal hearings and in what ways?
5. What such changes be beneficial or not to the interests of all the parties involved?
FOOTNOTES
1. Several defences are known as partial defences, and apply only to murder. Where successfully pleaded, they act to reduce murder to manslaughter.
2. See New South Wales. Law Reform Commission Provocation, Diminished Responsibility and Infanticide (Discussion Paper 31, 1993). The Commission is currently preparing its Report for this reference.
3. D Brown, D Farrier, D Neal and D Weisbrot Criminal Laws: Materials and Commentary on Criminal Law and Process in New South Wales (Federation Press, Sydney, 1990) at 665.
4. G Williams Textbook of Criminal Law (2nd ed, Stevens and Sons, London, 1983) at 646-647.
5. Hawkins v R (1994) 68 ALJR 572.
6. Reflecting R v Falconer (1990) 171 CLR 30.
7. Zecevic v DPP (1987) 162 CLR 645.
8. Proudman v Dayman (1941) 67 CLR 536.
9. R v Vangelder (unreported) Supreme Court, NSW, Court of Criminal Appeal, 28 February 1994, CCA 60107/93. Compare R v Conlon (1993) 69 A Crim R 92 in relation to intoxication and self-defence.
10. Stingel v R (1990) 171 CLR 312.
11. R v Abusafiah (1991) 24 NSWLR 531; 56 A Crim R 121.
12. The approach taken in the Criminal Code Bill 1994 (Cth) is not necessarily the last word and does not appear to have proceeded in the basis of a review fully alert to the position of, for example, people with an intellectual disability, or indeed to the problems occasioned generally by adherence to the objective test retained under the principle of criminal responsibility defined under the Bill.
13. M’Naghten’s Case (1843) 10 Cl & F 200 at 210; 8 ER 718 at 722, cited in B Fisse Howard’s Criminal Law (5th ed, Law Book Co, Sydney, 1990) at 447-448.
14. Crimes Act 1914 (Cth) s 4.
15. See Fisse at 448 for the principal differences between the common law and the Codes.
16. Part 4 of the Mental Health (Criminal Procedure) Act 1990 (NSW) (the “MHCP Act”) replaced, and is almost identical to, Part XIB (s 428Z - 428ZB) of the Crimes Act 1900 (NSW); which replaced s 23 of the Mental Health Act 1958 (NSW) and s 439 of the Crimes Act 1900 (NSW).
17. R v S [1979] 2 NSWLR 1 at 39, per O’Brien J (Street CJ and Slattery J agreeing): interpreting s 23 of the Mental Health Act 1958 (NSW), which stated that “‘mentally ill’ means, in relation to any person charged as aforesaid, so insane as not to be responsible, according to law, for the act or omission the subject of the charge.”
18. MHCP Act s 38.
19. MHCP Act s 22(1)(b).
20. MHCP Act s 22(2).
21. MHCP Act s 25.
22. MHCP Act s 39.
23. MHCP Act s 22(1)(b).
24. Mr M Ierace Submission (16 December 1991) at 7.
25. S C Hayes and G Craddock Simply Criminal (Federation Press, Sydney, 1992) at 140-141; G Williams Criminal Law: The General Part (2nd ed, Stevens & Sons, London, 1961) at 447. See also J H McClemens and J M Bennett “Historical notes on the law of mental illness in New South Wales” (1962-1964) 4 Sydney Law Review 49.
26. D O’Connor and P A Fairall Criminal Defences (2nd ed, Butterworths, 1988) at 237.
27. R v Porter (1933) 55 CLR 182 at 188-189 per Dixon J.
28. R v Kemp [1957] 1 QB 399 at 407 per Devlin J.
29. M Ierace Intellectual Disability: A Manual for Criminal Lawyers (Redfern Legal Centre Publishing, Sydney, 1989) at 128-129.
30. Ierace at 128-129, citing Stapleton v R (1952) 86 CLR 358; R v Porter (1933) 55 CLR 182; and R v Kemp [1957] 1 QB 399.
31. Fisse at 453 [footnotes references omitted].
32. O’Connor and Fairall at 249 [footnotes references omitted].
33. For example, Queensland. Office of Family Services and Aboriginal and Islander Affairs Submission (18 August 1992) at 4. See also Legal Aid Commission of NSW Submission (24 July 1992) at 5-6; Commonwealth. Australia. Attorney-General’s Department, Office of Legal Aid and Family Services Submission (28 August 1992) at 5.
34. Hayes and Craddock at 140-141.
35. Mrs V Breheny Submission (14 July 1992) at 1.
36. Hayes and Cradock at 141.
37. Law Reform Commission of Victoria Mental Malfunction and Criminal Responsibility (Report 34, 1990) at para 51.
38. Criminal Law Officers Committee of the Standing Committee of Attorneys-General [now known as the Model Criminal Code Officers Committee] Model Criminal Code: Chapter 2 - General Principles of Criminal Responsibility (Final Report, AGPS, Canberra, December 1992) (“Model Criminal Code Report”) cl 302.
39. Criminal Code Bill 1994 (Cth) cl 7.3.
40. Explanatory Memorandum to the Criminal Code Bill 1994 (Cth) at 18: Gibbs Review of Commonwealth Criminal Law General Principles of Criminal Responsibility (Interim Report, July 1990) at paras 9.39-9.40; VLRC Report 34 at paras 45, 48-51.
41. Note that this is one area where the umbrella definition of “impaired intellectual functioning” proposed in Chapter 2, which is not intended to include mental illness, would be inappropriate.
42. In R v Ayoub [1984] 2 NSWLR 511 the New South Wales Court of Criminal Appeal (per Street CJ at 515, Slattery J agreeing) held that “irrespective of whether or not the accused raises or disclaims such a defence, a trial judge, if he sees it as fairly open, may well have a positive duty to put the defence himself.” Street CJ continued “there is only one onus of proof to be applied in a criminal trial when an issue arises whether the accused should be found not guilty on the ground of mental illness. Whether that contention be advanced by the accused, by the Crown or put by the judge of his own motion to the jury, the onus in each case is one of proof on the balance of probabilities.”
43. MHCP Act s 37.
44. MHCP Act s 39.
45. Mental Health Act 1990 (NSW) Chapter 5 (s 79-113), and Schedule 1. Note that the definition of “forensic patient” has been amended by the Mental Health Amendment Act 1994 (NSW), though this Act is not yet proclaimed.
46. According to Hayes and Craddock, in relation to the fitness provisions: “This follows from the scheme of the Act which is administered by the Department of Health. The ‘Director-General’ where referred to in the Act is defined as the Director-General of the Department of Health by the ‘Dictionary of Terms Used in the Act’ which is Schedule 1 to the Act. ‘Minister’ is not defined, but logically means the Minister for Health”, at 116, footnote 94.
47. Mental Health Act 1990 (NSW) s 81.
48. Mental Health Regulations 1990 (NSW) reg 20(1)(a).
49. Mental Health Act 1990 (NSW) s 82.
50. Mental Health Act 1990 (NSW) s 81(2)(b), 82(4).
51. Mental Health Act 1990 (NSW) s 83(1).
52. Mental Health Act 1990 (NSW) s 84(1).
53. Mental Health Act 1990 (NSW) s 84(1).
54. Mental Health Act 1990 (NSW) s 84(2).
55. Mrs V Breheny Submission (14 July 1992) at 3-4.
56. Mr M Ierace Submission (16 December 1991) at 7-8.
57. Legal Aid Commission of NSW Submission (24 July 1992) at 5-6.
58. MHCP Act s 39.
59. Mr M Ierace Submission (16 December 1991) at 4.
60. Mental Health Review Tribunal Annual Report 1992 at 80.
61. See R v Phuong Cam Su (unreported) Supreme Court, NSW, 6 June 1994, Blanch J, 70073/93.
62. Mr M Ierace Submission (16 December 1991) at 4.
63. Legal Aid Commission of NSW Submission (24 July 1992) at 5.
64. For example, consultations with the DPP, Police Prosecutors, Legal Aid Commission of NSW, Law Society of New South Wales, Public Defenders, Aboriginal Legal Service and the Judicial Commission on 1 March 1994, with Mr P Berman, Crown Prosecutor on 9 March 1994, and with solicitors from the Legal Aid Commission of NSW on 17 March 1994.
65. See R v Phuong Cam Su (unreported) Supreme Court, NSW, 6 June 1994, Blanch J, 70073/93, at 5.
66. Mr M Ierace Submission (16 December 1991).
67. Mr M Ierace Submission (16 December 1991): following further representations this matter was ultimately no-billed.
68. New South Wales. Mental Health Review Tribunal Annual Report 1992 at 75-77.
69. Crimes Act 1914 (Cth) s 20BJ(1).
70. Crimes Act 1914 (Cth) s 20BJ(4), 20BJ(5).
71. Crimes Act 1914 (Cth) s 20BJ(6).
72. Mental Health Act Implementation Monitoring Committee (NSW) Report to the Honourable R A Phillips Minister for Health on the NSW Mental Health Act 1990 (New South Wales Parliamentary Paper 275, August 1992) Recommendation 6 at 35-36.
73. New South Wales. Minister for Health Letter (5 July 1994).
74. Bail Act 1979 (NSW) s 32(1)(b1), 32(1)(c).
75. Australia. Attorney-General’s Department, Office of Legal Aid and Family Services Submission (28 August 1992) at 5.
76. Consultation with representatives of the DPP, Police Prosecutors, Legal Aid Commission of NSW, Law Society of New South Wales, Public Defenders, Aboriginal Legal Service and the Judicial Commission on 1 March 1994.
77. Legal Aid Commission of NSW Submission (24 July 1993) at 5-6.
78. Mr M Ierace Submission (16 December 1991) at 5.
79. MHCP Act s 23.
80. Mr M Ierace Submission (16 December 1991) at 6.
81. Subject to the release requirements previously discussed, and the Mental Health Regulation 1990 (NSW).
82. Mr B Boerma, Registrar, Mental Health Review Tribunal Personal Communication (14 April 1994).
83. Hayes and Craddock at 117, referring to the fitness provisions, though the same argument applies in relation to mental illness.
84. Crimes Act 1914 (Cth) s 20BL(4). Suggested conditions include that the person reside at a specific address, undertake treatment and/or therapy, and undertake behavioural and lifestyle modification programs.
85. Crimes Act 1914 (Cth) s 20BL(3). The time for which conditions remain in force is limited to either the balance then remaining of the period of detention set by the court (that is, the period imposed under s 20BJ(1)), or 5 years, whichever is the lesser.
86. Mental Health Act 1990 (NSW) s 281.
87. Hayes and Craddock at 120.
88. Mental Health Act 1990 (NSW) s 285.
89. South Australia v O’Shea [1987] 61 ALJR 477.
90. Mental Health Act Implementation Monitoring Committee (NSW) at 31-32.
91. Mr M Ierace Submission (16 December 1991) at 7.
