12 |
Mental Health Issues |
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General Statement |
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| 12.1 |
Mentally disturbed people should not be prosecuted for trivial offences which pose no threat to the community. However a prosecution may be warranted where there is a risk of re-offending by a repeat offender, where there is no viable alternative to prosecution, and/or a further practical penalty or aspect of supervision is available following a successful prosecution. |
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| 12.2 |
In determining whether or not to proceed against a mentally disturbed person regard must be had to the: |
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(1) |
details of previous and present offences; |
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(2) |
nature of the offender’s condition; and |
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(3) |
likelihood of re-offending. |
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| 12.3 |
In deciding whether to prosecute, the attitudes of the victim and the police officer-in-charge will be taken into account but will not be determinative. |
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Court of Summary Jurisdiction |
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| 12.4 |
Where an offender is charged with a summary offence and the proceedings are before the Court of Summary Jurisdiction, prosecutors should be aware of section 78 Mental Health and Related Services Act which allows the magistrate to dispose of the charge without a hearing if it appears that the offender is suffering from a mental illness or is mentally disturbed. Options available to the magistrate include dismissing the charge or making an admission for a treatment order under that Act. |
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Supreme Court |
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| 12.5 |
From time to time people suffering from a mental illness, intellectual impairment, brain damage or some other cognitive/psychological problem are charged with criminal offences and come before the courts. |
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| 12.6 |
Where a person is charged on information then mental impairment and/or fitness to stand trial may be raised pursuant to section 43A et seq Criminal Code. Prosecutors should be familiar with the relevant legislative provisions. Where possible matters should be brought to the Supreme Court by way of an ex officio indictment. |
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| 12.7 |
Questions of fitness to stand trial or a defence of mental impairment should be raised at the earliest opportunity and ideally before the person is arraigned at trial. Where appropriate, and following consultation with the Director’s Chambers, the issue may be raised by the Crown. |
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| 12.8 |
Where the prosecutor becomes aware of the possibility of: |
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(1) |
fitness to stand trial; and/or |
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(2) |
mental impairment being raised as an issue or issues |
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an application should be made to the Supreme Court for a psychiatric report on the offender (section 43O(d), section 43P(3)(b) Criminal Code – fitness to stand trial; section 43G(b) Criminal Code - mental impairment). |
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| 12.9 |
Where a psychiatric report is either ordered by the court or requested by the Crown, a prosecutor will supply a full copy of the brief regarding the case to the court for provision to the appointed psychiatrist. |
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| 12.10 |
The fitness inquiry is a non-adversarial inquiry. The object of the inquiry is for the parties to place all relevant evidence before the court concerning the question of the person’s fitness to be tried for the offence. |
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| 12.11 |
An offender can be found unfit to stand trial by agreement (section 43T Criminal Code). Approval is to be obtained from the Director’s Chambers before agreement is given. |
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| 12.12 |
A plea of not guilty by reason of mental impairment can be accepted (section 43H Criminal Code). Approval to accept such a plea must first be obtained from the Director’s Chambers. |
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| 12.13 |
Where the court has ordered a psychiatric report on the offender and the prosecutor wishes to accept the findings contained in that report, such acceptance should only occur after consultation with the Director’s Chambers. |
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| 12.14 |
However, the Crown is not obliged to accept the findings of a Court-appointed psychiatrist; and a (further) psychiatric report may be commissioned. If a prosecutor determines to obtain a psychiatric report from a consultant psychiatrist then approval should first be obtained from the Director’s Chambers. |
