Psychiatric Defences in Criminal Law Dr Richard Furst Consultant Forensic Psychiatrist Level 8 Practice, Sydney 23 rd February 2014

Common referrals Section 32 Section 32 Pre-sentence reports Pre-sentence reports Fitness Fitness Mental Illness Defence Mental Illness Defence Substantial Impairment by Abnormality of Mind Substantial Impairment by Abnormality of Mind Self-defence Self-defence Provocation Provocation Automatism Automatism

Section 32 & 33 Section 32 of MH(FP)A, 1990 requires mental illness or ‘mental condition’ for which treatment is available in a mental health facility Section 32 of MH(FP)A, 1990 requires mental illness or ‘mental condition’ for which treatment is available in a mental health facility Treatment plan that can be enforced by the Court Treatment plan that can be enforced by the Court Section 33 allows for diversion from criminal justice system to psychiatric inpatient units Section 33 allows for diversion from criminal justice system to psychiatric inpatient units Need to be a ‘mentally ill person’ as per Section 14 of the Mental Health Act 2007 and Section 16 of MHA 1990 Need to be a ‘mentally ill person’ as per Section 14 of the Mental Health Act 2007 and Section 16 of MHA 1990

Mentally Ill Person Mental illness means a condition that seriously impairs, either temporarily or permanently, the mental functioning of a person and is characterised by the presence in the person of any one or more of the following symptoms: Mental illness means a condition that seriously impairs, either temporarily or permanently, the mental functioning of a person and is characterised by the presence in the person of any one or more of the following symptoms: a) Delusions b) Hallucinations c) Serious disorder of thought form d) A severe disturbance of mood e) Sustained or repeated irrational behaviour indicating the presence of any one or more of the symptoms referred to in paragraphs (a) to (d)

Mentally Ill Person A person is a mentally ill person if they are suffering from a mental illness and there are reasonable grounds for believing that care, treatment and control of the person is necessary: A person is a mentally ill person if they are suffering from a mental illness and there are reasonable grounds for believing that care, treatment and control of the person is necessary: a) For the person’s own protection from serious harm, or b) For the protection of others from serious harm In considering whether a person is a mentally ill person, the continuing condition of the person, including any likely deterioration of the person’s condition and the likely effects of such deterioration, are to be taken into account In considering whether a person is a mentally ill person, the continuing condition of the person, including any likely deterioration of the person’s condition and the likely effects of such deterioration, are to be taken into account

Section 32 Common referrals Common referrals - Schizophrenia - Bipolar Disorder - Major Depression - Intellectual Disability - Dementia - Anxiety Disorders - Personality Disorders - Alcohol and other drugs

Pre-sentence Reports Majority of District Court matters plead guilty Majority of District Court matters plead guilty Psychiatric illness/condition relevant in mitigation Psychiatric illness/condition relevant in mitigation Referral information: Referral information: –Letter of instruction –Agreed Facts –Criminal history – Bail Report –Medical Records

Fitness Issues At common law, a person is unfit to stand trial for criminal offences if he or she is: At common law, a person is unfit to stand trial for criminal offences if he or she is: 1. Incapable of understanding the nature or purpose of the proceedings 2. Incapable of communicating with the Court or counsel for the purposes of conducting the defence