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New Mental Health Criminal Procedures

NCJ Number
Lloyd Babb
Date Published
February 2006
3 pages
This bulletin explains the major amendments to the Mental Health (Criminal Procedure) Act 1990 of New South Wales (Australia), which went into force on January 1, 2006.
The IDC's recommendations were encompassed in the amendments eventually enacted. Under the act, fitness hearings for defendants with mental impairments will be held by a judge sitting alone without a jury, unless a jury is requested by the defendant, his/her attorney, or the prosecutor. Prior to the amendments, a fitness hearing was conducted in the presence of a jury unless the defendant, with the consent of the prosecutor, preferred otherwise. The amendments also eliminated the role of the attorney general in initiating fitness hearings. Under the act's provisions, the court, the Mental Health Review Tribunal, and the Director of Public Prosecutions are assigned functions previously performed by the attorney general. Further, the act provides that the court may allow the conditional or unconditional release of a person found not guilty by reason of mental illness. Another provision allows a sentencing term for a mentally impaired convicted offender to be served consecutively with, or partly concurrently and partly consecutively with, another sentencing term. Also, a magistrate has the power under the act to divert mentally ill offenders to an appropriate treatment program enforced and monitored by the court. These amendments are intended to simplify procedures and improve the operational efficiency of the law for people with a mental illness, mental condition, or intellectual disability. They stemmed from recommendations of the New South Wales Law Reform Commission published in 1996. In March 2001, an Interdepartmental Committee on the Act and Cognate Legislation (the IDC) was established to consider these recommendations and make independent recommendations. Future developments in the act are discussed. 7 notes