Public Defenders

Applying the Amended Mental Health (Forensic Provisions) Act 1990


by Andrew Haesler SC
Deputy Senior Public Defender
July 2009


The Mental Health Legislation Amendment (Forensic Provisions) Act 2008 commenced on 1 March 2009. The Amendment Act retitles the Mental Health (Criminal Procedure) Act 1990 as the Mental Health (Forensic Provisions) Act 1990 (the Act). More importantly, with the new Act, the Mental Health Review Tribunal (the Tribunal) became responsible for determinations previously made by the Minister for Health and Governor concerning the treatment, care, detention and release of persons found, not guilty by reason of mental illness, or unfit for trial.

The new Act does not change a Magistrate's powers to deal with mentally ill or developmentally disabled defendants pursuant to Part 3 (sections 32 and 33) of the Act. The new provisions do not change the legal concepts of unfitness for trial and not guilty due to mental illness. The NSW Law Reform Commission is currently considering those concepts and the relevant procedure as part of its reference on sentencing of persons suffering from mental illness or cognitive deficit. The new Act should, however, cause defence lawyers, whether appearing in the Local or Higher Courts, to reassess how best to advise clients who are intellectually disabled, suffer from a mental illness or have a mental illness defence open to them.

John Feneley in his companion paper Applying the Amended Mental Health (Forensic Provisions) Act 1990 and Rethinking the Defence of Mental Illness discusses in more detail how the Tribunal operates and some of the changes brought about by the Amendment Act. What I want to do is focus on some of the practical issues that will now confront us.

First, I need to define three important terms:

a. forensic patient;
b. the defence of mental illness or insanity; and
c. unfitness to be tried.
Next I will look at how fitness/unfitness and defence of mental illness issues are approached in the Local and Higher Courts.

In that context I will discuss the impact of the recent Amendments.

a. Forensic Patient: The term is defined in section 42 of the Act. It includes all those in custody, or released by the Tribunal on conditions, who:
i) have been found unfit after inquiry (s 14), but not are not on bail (as those on bail cease to be forensic patients under the new provisions).
ii) the Tribunal has determined to be likely on balance to become fit within 12 months but who have not been granted bail (s 17).
iii) have had a limiting term imposed by a Court and are serving it (s 24),
iv) have had the question of where they are to be detained considered by the Tribunal after that limiting term has been imposed (s 27)
v) have received a special verdict of not guilty because of mental illness (s 39 or had that verdict imposed on appeal (s 7(4) Criminal Appeal Act 1912).

While a person is a forensic patient they remain under the control of the Tribunal. Thus if a person who has been conditionally released under s 39 is reviewed by the Tribunal and found to be in need of detention that detention, can be ordered despite the earlier court order.

A person, who ceases to be a forensic patient, is no longer under the control of the Tribunal. A person's status as a forensic patient will be terminated in the following circumstances:

i. An order for unconditional release is made under s 39. Section 51(a).
ii. A person who is found not fit to be tried is found not guilty at a special hearing.
iii. A person who is unfit to be tried is found to have committed the offence but is conditionally released and the conditions expire with the effluxion of time. Section 52(1)(b).
iv. A person is found guilty on the limited evidence available but a limiting term is not imposed. Section 52(1)(b) - see 'The Mental Health Legislation Amendment (Forensic Provisions) Act', G James, J Feneley & S Henson. (2009) 21 Judicial Officer's Bulletin Vol.3.
v. Following the expiry of a limiting term.
vi. An order for unconditional release is made by the Tribunal. Section 47(1) b).

Problems can arise where a forensic patient, detained pursuant to s 39 or serving a limiting term, is kept in gaol custody either because they elected to be so detained or are now better (or at least not suffering a from a mental illness of condition for which treatment is available) or there is simply no room for them in a hospital. Progressing through the gaol classification system is next to impossible for s 39 detainees as they do not have a release date and Corrective Services refuse to change their procedures to accommodate them. Many serving a limiting term are kept in maximum security as a matter of course. If forensic patients are kept in maximum security they have no access to programmes, which prepare them for release, such as work release or training release. If they have not been prepared for release the Tribunal can find it difficult to assess whether there will be a danger if they are released. A detainee in gaol can face a catch 22, which means that while a forensic patient they cannot prove they are fit for a release order. The threat of Supreme Court challenge has led to special arrangements being made by Corrective Services (on a one-off basis) to allow for individual s 39 detainees to move to a classification that can allow release programmes to begin. The situation is far from ideal!


A Defence of Mental Illness: See R v M'Naghten (1943) 8 ER 718; R v Porter (1933) 55 CLR 182 at 188; Stapleton v The Queen (1952) 86 CLR 358 at 37 & R v S [1979] 2 NSWLR 1.

' To establish a defence on the ground of insanity, it must be clearly proved that, at the time of the committing of the act, the party accused was labouring under such a defect of reason, from disease of the mind, as not to know the nature and quality of the act he was doing; or, if he did know it, that he did not know he was doing what was wrong'. See The King v Porter (1936) 55 CLR 182 and also Sodeman v The King (1936) 55 CLR 192 where Latham CJ stated the principles thus, 'The defence of insanity is established in law only if it is shown that the accused did not, at the relevant time, know the nature and quality of his act, or if he did, did not know that it was wrong and that this absence of knowledge arose from a defect of reason amounting to a disease of the mind'.

The law will excuse a defendant who commits a crime if at the time they were so mentally ill, as not to be responsible according to law. The onus is on the defendant who must establish on the balance of probabilities that they were mentally ill at the time of the doing of the act constituting the alleged offence. The mental state of the accused before or after that time, is only relevant in so far as it assists the determination of what his mental state was likely to have been at that time.

What does 'disease of the mind' and 'defect of reason' mean? The defendant's state of mind must have come about from a disease, disorder or disturbance arising from some condition, which may be temporary, or of long standing, whether curable or incurable. Such a condition can be caused by some physical deterioration of the brain cells, but not necessarily. It may arise from some mental malfunction with no apparent organic basis. The cause of the disease may be unknown. In all cases it must result in the function of the persons reason or understanding being thrown into a state of derangement or disorder.

A distinction is drawn between a defect of reason from an underlying mental illness as distinct from the reaction of a healthy mind to some extraordinary external factor, which is transient, that is, passing and not prone to recur.

When considering whether a defendant did, or did not, know the act to be wrong; it must be asked could the defendant through a disease, disorder or disturbance of the mind think rationally of the reasons, which to ordinary people would make that act right or wrong? If the defendant could not sense or appreciate or understand that his or her act was wrong the defence will be established.

Even if they knew in some sense their act was wrong, if through a disordered condition of the mind the defendant could not reason about the matter with a moderate degree of sense and composure then the defence will also be established.

When considering the defendant's capacity to reason or know what he or she was doing or know the physical nature or quality of the act or know that the act was wrong, the ordinary standards of reasonable people in our community is applied.

While medial evidence is not strictly required to prove the insanity defence R v Lucas (1970) 120 CLR 171. it is the usual and preferred option to call expert evidence from a psychiatrist or a psychologist or both.

c. Fitness to be tried: In order to be able to properly participate in a hearing a defendant needs: R v Presser [1958] VR 45 at 48.

1. To be able to understand what it is that they are charged with.
2. To be able to plead guilty or not guilty to the charge.
3. To exercise his or her right to challenge members of the jury panel.
4. To understand generally the nature of the proceedings, namely that it is an inquiry or trial as to whether they did what they are charged with.
5. To be able to follow the course of the proceedings so as to understand what is going on in a general sense, though they need not, understand the purpose of all the various court formalities.
6. To be able to understand the substantial effect of the evidence to be given against them.

And additionally, a defendant needs:

7. To be able to make his of her defence or answer the charge.
8. To be able to do this through their counsel and solicitor by giving any necessary instructions and letting their lawyers know what their version of the facts is.
9. If necessary to be able to tell the court what their version of the facts is (although they need not be conversant with court procedure or have the mental capacity to make an able defence).

And, a defendant needs:

10. To have sufficient capacity to be able to decide what defence they will rely on and to make their defence and their version of the facts known to the court and to their lawyers.

If a defendant cannot do these things he or she is unfit to be tried. A court determining the question will be assisted by psychiatric and psychological evidence. Critical evidence can also come from a lawyer who has attempted to get sufficient instructions to run the case and failed.

Consequences: A more detailed treatment of the issues can be found in my paper Part 3Mental Health (Criminal) Procedure Act1900: Recent Developments, prepared for the 2006 LAC conference. Fitness: If a person is unfit the consequences differ depending on the nature of the charge and the court hearing the matter.

In the Local Court: Generally, the issue of fitness does not arise, as the defendant's difficulties with the court process will lead to an application pursuant to Part 3 (s 32 or 33) of the Act. Problems can arise however with committals and in matters where a Magistrate declines to utilise sections 32 or 33 because the offence charged is too serious El Mawas v Director of Public Prosecutions (206) 6 NSWLR 93 and Confos v Director of Public Prosecutions [2004] NSWSC 1159. or because conditional release has failed and the defendant is back before the Court. Section 32(3D) or 33(3).

If fitness is properly raised as an issue in the Local Court (usually by the tender of a psychological or psychiatric report) the court must consider the question. As there are no rules or procedures in any Act for determining fitness issues at the Local Court you and the Magistrate must make them up using R v Presser, as a guide and following the higher court procedures set out in Part 4 of the Act. Obviously, procedural fairness must be observed.

If it's a summary matter, or no election is made, the raising of the fitness issue will generally be in the context of, or automatically raise, an issue of whether to proceed using Part 3 of the Act. Even if the defendant may be unfit the Magistrate can proceed to make a Part 3 order, without first determining the fitness issue. The Magistrate can either; adjourn the proceedings if there is a prospect the defendant may become fit, Section 32(2) or 33(1). or they may deal with the defendant under either s 32(3) or s 33(2).

If Part 3 is not applied and the Magistrate determines that the defendant is unfit they must discontinue the proceedings and discharge the defendant. Pioch v Lauder (1976) 13 ALR 266 at 271, Foster J approved in Ebatarinja at 455. There is no other course they can take.

In Mantell v Molyneux (2006) 68 NSWLR 46 at [28] & [29], Justice Adams, made it clear that, even though the case is being heard in the Local Court, if a defendant is found not fit to be tried he or she must be discharged. Applying Ngatai v The Queen (1980) 147 CLR 1 at 7-8, per Gibbs, Mason and Wilson JJ and Pioch v Lauder (1976) 13 ALR 266.

If the case is not a strictly a summary matter an election can be made to go to a higher court. Section 260 Criminal Procedure Act 1986. This may not solve the problem. In committal proceedings a defendant still has an entitlement to procedural fairness. If they are unfit the High Court has said that the proceedings cannot continue. Ebataringa v Deland (1998) 194 CLR 444 and also Wood CJ CL in Rv Mailes(2001) 53 NSWLR 251, at [159] -[162]. In theory the defendant must be discharged, although this does not prevent the issuing of an ex-officio indictment by the DPP, if thought appropriate. In their book Crime and Mental Health In NSW, Howard and Westmore argue that recent changes to the Criminal Procedure Act 1986, Sections 63(1), 63(2), 71, 72 and 73. which allow for a committal to proceed when a defendant is not present, may mean this point needs revisiting. At paragraph 4.87. Their argument is far from compelling but it may at least get a defendant who will certainly be ex-officioed the benefit of a committal.

Local Court Unfitness summary:

Summary Matters Option 1 Apply Part 3 of the Act and have defendant discharged prior to or during the hearing.
Option 2(a) Have Court assess the issue, determine the defendant to be fit and proceed.
Option 2(b) Have Court assess the issue, determine the defendant to be unfit and discharge him or her.
Indictable matters Option 3(a) If an election has been made or the matter is strictly indictable raise the issue. If client unfit this will result in an ex-officio indictment and the fitness issue being ventilated in a higher court.
Option 3(b) Don't raise the issue until Arraignment.

The problem with Option 3(a) is that no matter what is done your client loses the benefits of an early guilty plea and a contested committal.

Fitness Higher Courts: The issue will be determined following the procedures in Part 2 of the Act. Until the Law Reform Commission reports and the Act is changed this means that of a finding of unfitness will (should the Tribunal determine they are unlikely to become fit within 12 months of the finding) lead to a special hearing and, if the verdict is that on the limited evidence available the defendant is guilty, the fixing of a limiting term. That term can often be longer than a sentence following a guilty plea and no non-parole period can be fixed. See R v Mitchell (19990) 108 A Crim R 85; R v Mailes (2001) 150 A Crim R 365 & R v AN [2005] NSWCCA239.

Impact of the Amended Act on fitness issues: The Amended Act will have no real impact on Local Court matters. Part 3 remains unaltered for the moment.

In the Higher Courts, after a finding of unfitness the defendant is still referred to the Tribunal, who must make an assessment about whether they will become fit during the next 12 months and if not notify the court so another special hearing can be held. The critical difference brought about by the Amendment Act is that once a defendant has been convicted on the limited evidence or acquitted on the grounds of mental illness, the Tribunal has a much more important role to play in determining what may happen to your client.

First, if your client is at the time a forensic patient Section 42. the Court must notify the Tribunal if a limiting term is not to be nominated. Section 23(7). This will enable consideration of whether other orders under the Mental Health Act are appropriate.

Earlier amendments, which commenced in 2007, note that if the Court decides to impose a limiting term it must refer the person to the Tribunal before deciding where the person is to be detained. Section 24(1). The Tribunal must then determine whether the person has a mental illness or a mental condition for which treatment is available in a mental health facility, whether or not treatment is available and whether they object to going to a mental health facility. The matter is referred back to the Court so that the Court can then order where they are to be detained based on the Tribunal's determination. Section 24(2) and 27.

The Tribunal is obliged to consider and review the question of fitness after findings are made by a court and during their regular six-monthly review of all forensic patients. Section 45, 46 and 47(4).

If, after a court has imposed a limiting term, the Tribunal later finds a person to be fit for trial the process starts again. The Court and DPP must be informed and an inquiry must be held. The DPP can decide not to proceed. If this happens steps are required to be taken to ensure the person's release from detention. Section 29(3).

If after a fresh hearing the person is found to be fit they cease to be a forensic patient. They will however remain in custody until bailed, sentenced or put on trial and found not guilty. Sections 29 & 30.

No matter where they are detained defendant's who have been found unfit are forensic patients and remain under the Tribunal's jurisdiction. Only if they are bailed, unconditionally released by order of the Tribunal, Section 51. found to be fit by a court Section 52(3). or discharged after serving their limiting term will that status change. Section 52. The regulations can provide for additional circumstances but there are no such Regulations at present.

The Tribunal will review a forensic patient every six months. The Tribunal can order conditional or unconditional release at any time during the course of the limiting term. There is no requirement they wait until some notional non-parole period is reached. Unlike the previous regime the decision to release is not subject to veto by the Minister and will be made on the merits by the Tribunal. The Health Minister and or Attorney General still has an interest and can make submissions seeking to prevent or appeal a release decision if they consider the forensic patient have not served enough time.

Prior to 2009 most, if not all, of those serving a limiting term had little or no prospect of release prior to the expiry of their limiting terms. It is this prospect of Tribunal ordered early release that makes a special hearing option more attractive than it once was.

Prior to 2009 my general advice was that unless there was simply no choice but to raise the question of unfitness it was not in my client's best interests to do so. Now that decision is made much easier.

A new dilemma does arise: whether to press the Tribunal for a review of the fitness question? If your client is getting better it may be in their best interests, rather than asking the Tribunal to consider their fitness, to seek a conditional or unconditional release from detention. If found fit they lose their forensic patient status. While the DPP may decide not to proceed, they may also, especially in serious matters, require a retrial with the risk of conviction or a guilty plea. Your client will then return to custody of Corrective Services. If a sentence is imposed they may spend longer in custody and do not get the benefit of continued supervision by the Tribunal.

Consequences: A more detailed treatment of the issues can be found in my paper Part 3Mental Health (Criminal) Procedure Act1900: Recent Developments, prepared for the 2006 LAC conference. Mental Illness: If a person has a defence of mental illness available to them the consequences differ depending on the nature of the charge and the court hearing the matter.

In the Local Court: Generally, the defence does not arise as a defendant who commits summary offences Or matters which can be disposed of summarily pursuant to Part 2 Division 3 of the Criminal Procedure Act 1986 while suffering from a mental illness or a mental condition for which treatment is available, or who has a mental illness (within the meaning of the Mental Health Act 2007) , has Part 3 available to them. Section 32 now provides that it also applies 'at the time of the alleged commission of the offence to which the proceedings relate.

As with unfitness, there is however cases where, the Magistrate decides it is not appropriate to utilise Part 3 or the matter has been referred back to the Court because of a failure by the defendant to abide by the conditions imposed.

This will be a rare case. Generally this will only happen when the condition has resolved or in the even rarer case where the mental illness has been cured. Mental illness rarely 'goes away'. What may occur is that while the mental illness remains the symptoms of that illness are controlled by medication, therapy and other treatments. This is recognised by the definition of mental illness in the Mental Health Act.

Section 14. Mentally ill persons
(1) A person is a mentally ill person if the person is suffering from mental illness and, owing to that illness, there are reasonable grounds for believing that care, treatment or 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.
(2) In considering whether a person is a mentally ill person, the continuing condition of the person, including any likely deterioration in the person's condition and the likely effects of any such deterioration, are to be taken into account. Intellectual or developmental disabilities do not 'go away'.

If the defence is raised as Part 4, the Act does not apply in the Local Court, so no 'special verdict' is available. The Act makes no provision for the defence of mental illness in the Local Court. This was pointed in 1996 by the NSW Law Reform Commission in their Report; Number 80 ' People with an Intellectual Disability and the Criminal Justice System' At paragraph 6.46. The Commission's proposals to deal with the problem have yet to be adopted..

The Commission concluded:

' This does not necessarily preclude [the defences] application. However, if the defence succeeded, the magistrate would not be able to make orders which can be made by Supreme and District Court judges under the MHCP Act, nor would the detailed review system... involving the be Tribunal available. Accordingly the person would have to be released'.

I agree. If a Magistrate properly declines to deal with a matter under s 32 or s 33 the court has no option but to hear the matter and to give the a defendant the benefit of any available 'defence' which includes, of course, mental illness. An acquittal on the basis of mental illness allows the Local Court no other option other than to discharge the defendant.

Mental Illness Higher Courts: Prior to the Amendment Act the decision to enter a not guilty plea because the defence of mental illness was available was problematic. Simply put, given the general reluctance of the political authorities to release those who had received the special verdict of not guilty by reason of mental illness, unless the likely sentence was over 10 years the defendant was often better off pleading guilty or not raising the defence and relying on mental illness in mitigation of sentence.

An example is R v Hopkins [2004] NSWCCA 105. Mr Hopkins committed an aggravated sexual assault involving the malicious infliction of actual bodily harm (s 61J of the Crimes Act 1900). The maximum sentence is twenty years. The standard non-parole period is ten years. He received a sentence of two years with a non-parole period of six months. The uncontested evidence was that Mr Hopkins committed the crime while he was in a manic episode stage of his continued bipolar disorder. He could not calmly, rationally and appropriately reason in relation to the moral quality of the right or wrong of what he was doing.

The Crown appealed, saying the sentence was manifestly inadequate given the standard non-parole period. The Court of Criminal Appeal however, dismissed the appeal holding that despite the standard non-parole period there are circumstances in which the mental condition at the time of the offence, going directly to the level of culpability of an offender, affected the relative seriousness of the offence and that this factor was entitled to be determinative where assessing the appropriate sentence. Applying Rv Fahda [1999] NSWCCA 267; R v Israil [2002] NSWCCA 255; Sully Traynor 'Sentencing Mentally Disordered Offenders: The Causal Link', Judicial Commission of New South Wales, Sentencing Trends & Issues No 23, September 2002).

The other pre Amendment Act position is illustrated by the case of KHT, a 16-year-old girl who was caught up in her father's mental illness and found not guilty on the grounds of mental illness after a trial before Barr J in 2002. R v GJF, R v GFF, R v KHF[2002] NSWSC 737. The consensus of medical opinion was that she fell into a low risk group for future violence and that she did not need to be kept in a psychiatric hospital. The Tribunal made repeated recommendations for her release however the various Ministers responsible took years to approve a conditional release order.

A defence lawyer can now be confident that if both cases occurred now, a finding of not guilty on the basis of mental illness would result in the swift release of their client, with the major considerations being public safety and the treatment requirements of the defendant.

This does not mean a client must raise the defence. If your client is fit and can understand what is going on they can make their own choice as the onus of raising the defence rests with the defence. If they chose to plead guilty (or in fact if the defence fails but there is still an operating mental illness falling short of the what is required for a defence) they can use the illness in mitigation of penalty. Carlton v R [2008] NSWCCA 244, Basten JA at [101], Grove J at [57]-[59], Howie J [82]-[86]; R v Verdins (2007) 16 VR 269; R v Engert (1995) 84 A Crim R 67; R v Israil [2002] NSWCCA 255 at [21]-[26]; R v Hemsley [2004] NSWCCA 228 at [33]-[35]; Courtney v R (2007) 172 A Crim R 371 at [14]-18]. They may still get mental health treatment in gaol however that, unfortunately, can be haphazard particularly if they are compliant and make no fuss. If they are seriously ill and require treatment (and it is picked up by Corrective Services or Justice Health they can be transferred to a mental health facility and receive the benefits in Part 5 of the Amendment Act that flow from being a 'correctional patient'. Section 41 and Part 5 Div 3.

A Particular Problem: In theory only the defence can raise the defence of mental illness the Crown cannot. R v Stareki [1960] VR 141 and R v Damic (1982) A Crim R 35 at 38. Whether a judge can in exceptional cases direct a witness be called has yet to be decided by the High Court of Australia. Whitehorn v The Queen (1983) 152 CLR 657. Dawson J at pages 683 -684 thought not. Gibbs CJ and Brennan J did not decide the issue. However this is what occurred in the murder trials of R v Damic (1982) A Crim R 35 and R v Issa, unreported NSW SC, 16/10/1995, per Sperling J. In both cases the accused, while strictly fit to plead, had instructed their counsel not to raise the defence as they believed, wrongly, they were innocent and not mentally ill. In both cases the trial judge decided psychiatric evidence should be called on the issue as in their view it would be a travesty of justice if there were to be an unjust conviction. The issue remains open but the judge calling a witness appears inconsistent with the notion that our trial system is adversarial.


Where mental illness or unfitness issues arise in the Local Court little has changed with commencement of the Amendment Act.

In the higher courts practitioners can be much more confident that a client who becomes a 'forensic patient' or a 'correctional patient' will not be subject to political restrictions on their release or treatment. As a direct consequence of the considerable reforms brought about by the Amendment Act defence lawyers must rethink their justifiable and proper aversion to raising fitness issues or putting forward a defence of mental illness.

Andrew Haesler SC
Deputy Senior Public Defender