LLB180 Lecture Notes - Lecture 7: Owen Dixon, Aspirin, Dementia
Week 7 – Defences I – Mental Illness and Automatism (CB 829)
• An answer or response of the accused to the charge
• Defences must be distinguished from a mere denial by the defendant of a core
element of the offence
• However, some defences do deny an element e.g. automatism or intoxication denies
the voluntariness
• Defendant has an evidential burden to discharge
Bars to Conviction
• Importance of social interest or public policy
• Seek to prevent conviction
• Include double jeopardy; statutory limitations periods; diplomatic, consular, judicial,
parliamentary, sovereign and executive immunities; immunity granted in exchange
for cooperation with authorities or testimony at trial and legal incapacity
• Antony Duff – o-exculpato defees
Defences and Burden of Proof – General Rule
Generally evidentiary burden is on D:
• Applied by the judge – whether leave issue to the jury or withdraw issue from
consideration by the jury
• Whether D has discharged the evidentiary burden – a question of law
Generally legal burden is on P:
• Once D discharges evidentiary burden, burden shifts to P to prove BRD absence of
defence raised by D
• Persuasive burden
• Applied by the jury to reach a verdict – a question of fact
Mental Illness
• Over-representation → common image from the media/popular culture of a person
with a mental illness or cognitive impairment is naturally prone to violence or
offending (wrong). Most likely factors that cause a person to become involved in the
criminal justice system is having deficit life skills due to the lifestyle and environment
in which they grew up
• Mental disorders affect 20% of people over the course of their life
• Statistics and general information CB 833
• NSWLRC recommended legislative adoption of defiitios of etal health
ipaiet ad ogitie ipaiet CB
• Basten JA in DPP v Khoury [] N“WCA : uestios of etal apait a aise
at three stages in the course of criminal proceedings. (1) in the order in which
matters will be addressed, there may be a question as the whether the person is fit
to stand trial. (2) there may be a question as to whether an accused should be found
not guilty of the offence charged, by reason of mental illness. (3) mental illness may
be a significant fato i seteig: ee though it doest egate guilt, it a
edue oal ulpailit
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Defences and Burden of Proof – The Exception of Mental Defences
• Defences that apply only to people with mental and cognitive impairments: defence
of mental illness, isae autoatis ad sustatial ipaiet aoalit of
the mind
• D has legal (persuasive) burden to prove defence on BOP
• Requirements for medical/psychiatric evidence
• Exception to general rule re some statutory defences (eg defences to strict or
absolute liability offences)
Mental Defences: Critical Contexts
• Acquittal v ongoing detention: discriminatory?
• Permissibility of higher levels of medical interventions, detention and legal violence
in relation to people with cognitive and mental impairment
• Links between cognitive and mental impairment and danger, risk and abnormality
• Social construction of cognitive and mental impairment
• High levels of ongoing social disadvantage, victimisation and criminalisation
experienced by people with cognitive and mental impairment
• Poo aess to teatet, as ell as suppot seies i detetio ad post-release
Mental Health and the CJS
Clea eidee of oe-representation of people with cognitive and mental health
ipaiets ... N“WL‘C, p
• But poor statistical information
• Prison stats provide a guide (p 833)
Fitness to Stand Trial
• To be tried D must understand the general nature of the charge and the difference
between pleading guilty and not guilty
• Not a defence, instead it is a procedural requirement for a fair trial (Eastman CB 837)
• NSWLRC (CB 838) has recommended that the Presser standards be updated and
odified: The Mental Health (Forensic Provisions) Act 1990 (NSW) should be
amended to include a statutory fitness test, as follows:
A person is unfit to stand trial if the person cannot be afforded a fair trial because it
is established on the balance of probabilities that the person is unable to do any one
or more of the following:
• Minimum standard required before a person may be tried without unfairness or
prejudice – common law test: Presser (CB 837)
- understand what charged with
- plead to the charge
- exercise right of challenge
- understand generally the nature of the proceeding
- able to follow the course of the proceedings
- understand the substantial effect of any evidence against him
- make defence or answer to the charge
- instruct counsel
- capacity to decide what defence to rely upon
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• Rivkin (CB 837) held that the Presser standards do not extend to a reduction in the
capacity of the accused: so as log as the aused a udestad ad follo the
proceedings in each of its facets, can give appropriate instructions, and can present a
pope defee to the hage, he o she is to e egaded as fit to e tied
• Procedures for dealing with D when fitness raised and when D found unfit –
legislative framework: Mental Health (Forensic Provisions) Act 1990 (NSW), Pt 2 (for
District and Supreme Courts only)
• D or P can raise fitness (s 5)
• Must be proved on BOP (s 6), but onus not placed on either P or D
• Can be raised at any stage of proceedings (s 7)
• If raised before, the court must determine the question of unfitness (s 8)
• If raised after commencement of proceedings, the court must hear submissions
requesting the conduct of such an inquiry (s 9)
• Unless the court believes it is inappropriate to punish the person, the court must
hold an inquiry into the fitness to be tried (s 10)
• Question of fitness is a matter for the judge (s 11)
• Procedures of fitness inquiry (s 12)
• If the accused is found fit to be tried, the criminal trial will recommence (s 13)
• If unfit to be tried = Court refers person to Mental Health Review Tribunal (s 14)
• If the tribunal determines the person will become fit to be tried within the next 12
months, it must be determined whether the person is suffering from a mental illness
or mental condition which may be treated in a facility, and notify the referring court
(s 16)
• Court can make one of three orders (s 17):
1. Grant bail for up to 12 months
2. Order that the person be detained for less than 12 months in a mental health
facility, if found the person has a mental illness or if a person consents to
treatment for a mental condition
3. Ma ode detetio i a plae othe tha a etal health failit
• If the person will not be fit within the next 12 months, the DPP must be notified (s
16(4)) – may not proceed with the prosecution
• If poseutio is to otiue, the out ust hold a speial heaig s → quasi-
trial of the accused before a judge and jury (or judge alone if elected under s 21A).
• The Court must explain the unfitness to be tried, purpose of special hearing, verdicts
which are available, consequences of those verdicts (s 21).
• These requirements (above, s 21) are essential and any departure derives the
hearing of its fundamental character, thus requiring quashing of conviction –
Subramaniam via Gleeson CJ, McHugh, Kirby, Hayne and Callinan JJ
• S 22(1) – the verdicts available are:
a) Not guilty of the offence
b) Not guilty on the ground of mental illness
c) On the limited evidence available, the accused committed the
offence
d) On the limited evidence available, the accused committed an
offence available as an alternative to the offence charged
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Document Summary
Importance of social interest or public policy: seek to prevent conviction. Include double jeopardy; statutory limitations periods; diplomatic, consular, judicial, parliamentary, sovereign and executive immunities; immunity granted in exchange for cooperation with authorities or testimony at trial and legal incapacity: antony duff (cid:858)(cid:374)o(cid:374)-exculpato(cid:396)(cid:455) defe(cid:374)(cid:272)es(cid:859) Defences and burden of proof general rule. Generally evidentiary burden is on d: applied by the judge whether leave issue to the jury or withdraw issue from consideration by the jury, whether d has discharged the evidentiary burden a question of law. Mental illness: over-representation common image from the media/popular culture of a person with a mental illness or cognitive impairment is naturally prone to violence or offending (wrong). Mental health and the cjs (cid:858)clea(cid:396) e(cid:448)ide(cid:374)(cid:272)e of o(cid:448)e(cid:396)-representation of people with cognitive and mental health i(cid:373)pai(cid:396)(cid:373)e(cid:374)ts (cid:859) (cid:894)n wl c, p (cid:1012)(cid:1007)(cid:1006)(cid:895: but poor statistical information, prison stats provide a guide (p 833) Understand generally the nature of the proceeding.
