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Mental Health and the Criminal Justice System

NCJ Number
Karen Freeman
Date Published
October 1998
8 pages
Mental illness can be considered as part of a person's defense in local and higher courts in New South Wales (NSW), and a mental illness defense reflects the principle that a person must have an intention to do wrong before he or she can be held criminally responsible for an action.
A criminal matter heard in local courts may be covered by the NSW Mental Health (Criminal Procedure) Act if the magistrate finds the defendant is suffering from a mental condition or a mental illness or is a mentally ill person. Dismissal of a matter under this act does not mean the charge has been proven; rather, such dismissal reflects the accused's mental status. While the proportion of charges dismissed in local courts is low, females are somewhat overrepresented. The most common types of offenses to be dismissed involve offenses against the person, particularly assaults less serious than assaults resulting in actual bodily harm. In higher courts, a person's mental state at the time of an offense and trial can be taken into account during a criminal trial. Persons who are mentally unfit to stand trial can have the matter heard at a special hearing, in cases in which the matter is either proved on the limited evidence available or the person is acquitted. If proven on the limited evidence available, the penalty received cannot be more severe than the penalty that would have been received a normal criminal trial. If acquitted, the person can be released or held as a forensic patient. In higher courts, persons who are mentally ill at the time of committing the offense can use the mental illness defense, to the extent they did not know that what they were doing was wrong. Although this defense can be used in relation to all offenses, it is usually used as a defense to murder. The proportion of offenders who are found not guilty in higher courts is very small, and a successful mental illness defense is not necessarily an easier option than receiving a conviction. Diminished responsibility as a defense to murder can be used by those whose disorder does not meet the criteria necessary for using the mental illness defense. Offenders who become mentally ill while serving an imprisonment term may be classified as forensic transfer patients and be transferred to a prison hospital or to a general psychiatric hospital. 27 notes and 4 figures