In some criminal matters, the state of a defendant’s mental health can be so significant as to amount to a legal defence to a charge and mean that they cannot be held criminally responsible. In the ACT this is known as the mental impairment defence under section 28 of the Criminal Code (2002) (ACT).
Section 28 states:
(1) A person is not criminally responsible for an offence if, when carrying out the conduct required for the offence, the person was suffering from a mental impairment that had the effect that—
(a) the person did not know the nature and quality of the conduct; or
(b) the person did not know that the conduct was wrong; or
(c) the person could not control the conduct.
There is a presumption that a person is of sound mind unless and until it is established on the balance of probabilities, by the defendant or their lawyer, that they were suffering a mental impairment at the time of offending.
‘Mental impairment’ is defined under section 27 of the Criminal Code 2002 (ACT) as including senility, intellectual disability, mental illness, brain damage and severe personality disorder’.
Having a mental illness or brain damage alone is not enough to satisfy a court that a person should not be held criminally responsible for their actions. It must be established that the mental impairment prevented the person from understanding that their conduct was wrong or the nature of the conduct, or where they could not control their actions.
To be successful in establishing a mental impairment defence, it must be proven on the balance of probabilities that the accused was suffering from mental impairment, and the impairment had at least one of the effects described in Section 28 of the Act.
To establish mental impairment evidence from a medical professional, usually a forensic psychologist or psychiatrist, is often necessary. These experts can provide evidence as to the mental impairment of a person at the time of the alleged acts. It should be noted that there is no obligation for the courts accept this expert evidence. The court considers all circumstances surrounding the alleged offence, to decide whether an accused in not guilty by reason of mental impairment.
For some serious violent offences, even if the court is satisfied that the mental impairment defence is made out, they must then consider whether or not it is necessary to detain the defendant in a mental health facility.
Should you or someone you know be charged with an offence, it is essential you receive legal advice from an experienced criminal defence lawyer at any early stage. To discuss your options, call Hugo Law Group in Sydney (02 9696 1361), Canberra (02 5104 9640) and Perth (08 6255 6909) to make an appointment to speak to one of our lawyers.
