Discussion paper

Review of the defence of insanity in s 16 of the Criminal Code and fitness to plead

25 Feb 2019

The Tasmania Law Reform Institute is reviewing the defence of insanity under s 16(3) of the Criminal Code, and  the procedures prescribed by the Criminal Justice (Mental Impairment) Act 1999 for dealing with people who are not criminally responsible either because they are unfit to stand trial or because they have been found not guilty by reason of insanity.  

The Criminal Justice (Mental Impairment) Act 1999 has not been reviewed since its commencement on 14 May 1999 and it is timely to examine whether the Act is operating effectively and consistently with its underlying principles.

There are concerns that the Act, and relevant provisions of the Criminal Code, do not reflect contemporary understandings of mental health. Principles of fairness and justice dictate that, wherever possible, defendants with cognitive or mental health impairments should be supported to undergo a normal trial.

The Institute’s review provides an opportunity to modernise these laws, consider initiatives to promote due process rights for vulnerable defendants in the criminal justice system, and examine whether courts should be given greater supervisory powers and therapeutic sentencing options. 

The Issues Paper addresses a wide range of matters, including the interaction of the insanity defence with other defences under the Criminal Code, criteria for establishing insanity and fitness to plead, standardisation of expert assessment requirements, the operation of special hearings, the indefinite nature of forensic orders and expanding options to ‘scale up’ or ‘scale down’ supervision orders depending on the patient’s circumstances.

The Institute invites responses to any or all of the questions asked in the paper, and on any other matter considered relevant but not raised in the paper. The deadline for feedback to the TLRI is 24 May 2019.

Publication Details
Issues Paper no.27
Published year only: 
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