This Report considers two specialised responses for individuals with mental illness and/or cognitive impairment where their mental impairment affects their ability to participate in the ordinary processes of the criminal justice system. These are:
- fitness to stand trial; and
- the defence of insanity.
Although there may be an overlap in the conditions that give rise to a finding that a person is unfit to stand trial and a finding that a person is not guilty by reason of insanity, the scope of their operation and their legal requirements are different.
Part 1 of this Report details the background to this reference and presents an overview of the structure of the Report and the scope of the reference.
Part 2 of this Report provides an overview of the legislative framework that sets out the law in relation to the operation of the criminal justice system for people with mental health impairments and/or cognitive impairments. Several Acts set out the law in relation to the operation of the criminal justice system for people with mental health impairments and/or cognitive impairments, including the Criminal Justice (Mental Impairment) Act 1999 (Tas), the Criminal Code (Tas), the Mental Health Act 2013 (Tas) and the Sentencing Act 1997 (Tas).
This Part also sets out the distinction between fitness to stand trial and insanity and considers the principles that underlie the Criminal Justice (Mental Impairment) Act 1999 (Tas). These principles are fairness to the accused and the right to a fair trial, the protection of the community and the recognition of the rights of mentally impaired individuals consistent with the principles of least restriction. These principles are considered in light of the obligations that arise under international legal instruments to which Australia is a signatory including the International Covenant on Civil and Political Rights (‘ICCPR’), and the Convention on the Rights of Persons with Disabilities (‘CRPD’).
Part 3 provides an overview of mental health impairments and cognitive impairments and the criminal justice system. As noted, insanity and fitness to stand trial apply to only a small number of people compared to the number of individuals with mental health impairments and cognitive impairments overall who are involved in the criminal justice system. Individuals with mental health or cognitive impairments may not rely on the process of fitness to stand trial or on the insanity defence but may proceed through the usual criminal justice process. This is a clear alternative and the possible sentence received (if found guilty) compared to the consequences of a finding of unfitness or insanity are likely to weigh into the decision-making process.