Mental Health Act

Question 1

Insanity Defence

Answer 1

• This defence can be raised in respect to any crime
• A successful use of this defence establishes a lack of mens rea
• Insanity relates to the Defendant’s state of mind at the time of the commission of the offence.

Question 2

Four options available for Defence at Court to argue:

Answer 2

1. Insanity Defence (must disprove mens rea; rarely used in LC as the below are better).
2. Section 33 (crazy at court and unable to proceed, only available in LC)
3. Section 32 (once application accepted, it is finalised and does not go to hearing, can happen at any time, the mens rea at tie of offence, only available at LC).
4. Fitness to plea (once application accepted that is an unfairness, must fix the unfairness and adj matter, if can’t fix then stay of the court).

Question 3

M’Naghten Case (1843)

Answer 3

At the time of the act, the accused must have had the ‘defect of reasons, from the disease of the mind’ as
“Not to know the nature and quality of the act he was doing or, if he did know it, that he did not know he was doing what was wrong”.
- the above is two branches

Question 4

Section 32 and 33 Applications

Answer 4

• Section 32: the DEF’s mental state at the time of the application or at time of offence.
• Section 33: applies to persons who are considered mentally ill persons at the time of the court matter
• Both apply to summary offences and indictable offences dealt with summarily

Question 5

Section 32 applies to who?

Answer 5

• Cognitively impaired or persons suffering from a mental illness or mental condition.
• DOES NOT apply to mentally ill/disordered persons

Question 6

What is Cognitively Impaired?

Answer 6

• Means ongoing impairment of a persons comprehension, reasoning adaptive functioning, judgement learning or memory that materially affects the person’s ability to function in daily life
• Essentially means “impairment affecting ability to function in daily life”

Question 7

What is a Mental Illness?

Answer 7

• a condition which seriously impairs - either temporarily or permanently - the mental functioning of a person - and is characterised by the presence of any one or more of the following symptoms:
  
  • delusions, hallucinations, a serious disorder of thought form or a severe disturbance of mood, or
  • sustained or repeated irrational behaviour
    Essentially means “seriously impairs the mental functioning through serious though disorder or severe disturbance of mood”

Question 8

What is a Mental Health Condition?

Answer 8

A condition of disability of mind NOT including mental illness or developmental disability of mind.
Essentially means ‘any other condition’.

Question 9

Section 32 Application: What is the first limb?

Answer 9

Subsection 1(a): a report from an expert would be submitted that identifies that the accused has either of those things (cognitively impaired, mental illness, mental condition)
To dispute this: call their expert from the report or call our own expert.

Question 10

Section 32: What is the Second Limb?

Answer 10

Subsection 1(b):
- that, on an outline of the facts alleged or such other evidence as the magistrate may consider relevant, it would be MORE APPROPRIATE TO DEAL with the defendant in accordance with the law.
- balance of public interest in punishment and public interest in treatment and NOT the DEF interest in treatment.
Consider: objective seriousness, nexus, do they have a treatment plan, seriousness of the offence, the degree of planning involved the purposes of punishment, the proposed treatment plan.

Question 11

What is the Prosecutors Role in Section 32 application?

Answer 11

• Prosecutor should assist with the court with the proper application of s 32; its an ‘inquiry’.
• If disagree that DEF does not suffer from a disability, mental illness or condition, YOU NEED TO CALL EXPERT EVIDENCE.
• Generally you oppose on limb 2 because it is not ‘the most appropriate way to deal with the defendant’.

Question 12

What is the importance of Perry v Forbes & Storey when opposing s32?

Answer 12

Magistrate needs to know:

• the circumstances surrounding the commission of the offence,
• the mental condition of the Deft
• a clear and effective treatment plan, and
• the plan must be likely to ensure that there would not be a repetition of the incident in question.
• prosecutor tender facts, antecedents and any other relevant information on the application.

Question 13

What is Mentally Ill?

Answer 13

Section 14: essentially means

“Suffering mental illness and care necessary for their or other protection from serious harm”.

Question 14

What is Mentally Disordered?

Answer 14

Section 15:

Mentally disordered, so irrational care is necessary for their or others protection from serious harm.

Question 15

Section 33 applications:

Answer 15

• are for more serious mental conditions than those considered in 3.
• refers to mentally ill persons (at the time of the application).
• If person found not to be mentally ill, returned to court to be dealt with if order under 33 (1)(b) but if order is under 33 (1)(a) the Def does not have to be returned)

Question 16

What happens after 6 months since DEF admitted under s33

Answer 16

If a defendant has been admitted for treatment pursuant to 33 after the expiration of 6 months the offence is taken to be dismissed.
If brought back before expiration, court take into consideration the time spent in facility.

Question 17

What are the rules of evidence for S32 and 33 applications?

Answer 17

Section 36 MH (FP) Act: Means by which magistrate may be informed.
- The magistrate may inform him/herself as he/she thinks fit, but not so as to require a defendant to incriminate him/herself