Want to listen to the full episode and all our other episodes?
Hearsay allows you to fulfill your legal CPD requirements every year.
Our yearly subscription is only $299/year.
With a yearly subscription, you can access all of our episodes AND every episode we release over the next year.
Episode 30
Buy Episode
Professional Skills Substantive Law
Criminal law and mental illness
Law as stated: 19 October 2020
What is this?
This episode was published and is accurate as at this date.
Thomas Spohr shares his experiences as a criminal lawyer at both ends of the bar table about how mental illness can affect the experience of the criminal justice process, including early diversions out of the process through s 32 applications, the question of fitness to be tried, and the insanity defence.
Professional Skills
Substantive LawDISCLAIMER: At the time of recording, the new Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) was not yet in effect. The content of this episode may not be current having regard to the effect of that Act.
| What area(s) of law does this episode consider? | Criminal law, in the context of criminal liability and fitness to stand trial. Thomas Spohr, a trial advocate at Legal Aid NSW and former prosecutor for the Office of the Director of Public Prosecutions, draws on his years of experience working in criminal law to discuss the realities of dealing with mental illness in the criminal justice system. Discussed in this episode are the procedures, requirements and expectations surrounding section 32 applications, changes to the legislation concerning the application (in the form of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 which has been passed and assented to but not yet commenced) and general tips and advice on identifying and dealing with a client who suffers from mental illness and/or may be unfit for trial. |
| Why is this topic relevant? | There are over ten thousand people serving a custodial sentence, in one form or another, in the Australian correctional system. Of these inmates, over 70% have or have experienced a mental health condition – so it’s clear that mentally ill persons are overrepresented in the criminal justice system. Those with complex needs, such multiple mental illnesses, compounded with social and economic disadvantages, have significantly higher rates of offending, convictions and imprisonment than those with single or no diagnosis. The World Health Organisation once said, “Without urgent and comprehensive actions, prisons will move closer to becoming twenty-first century asylums for the mentally ill, full of those who most require treatment and care but who are being held in unsuitable places with limited help and treatment available”.[1] It is important for lawyers to be vigilant to the possibility of a client’s mental illness affecting their capacity to participate in the criminal justice system, their fitness for trial, and whether such illness might give rise to a defence to offences with which they are charged. |
| What legislation is considered in this episode?
| Mental Health (Forensic Provisions) Act 1990 (NSW) Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) The Mental Health (Forensic Provisions) Act 1990 (NSW), now superseded by the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), are both responses to the problem of overrepresentation of mentally ill or cognitively defendants in the criminal trials. The section 32 application under the 1990 Act, now made defunct and replaced by the section 14 application under the 2020 Act, are the primary tools lawyers have at their disposal to avoid their mentally ill or cognitively impaired clients having to be dealt with through the correctional system. |
| What cases are considered in this episode? | R v Presser [1958] VR 45 sets out a criteria for consideration on a question of fitness Kesavarajah v The Queen – [1994] HCA 41 succinctly restates the Presser criteria, saying that the defendant must be able to:
|
| What are the main points? |
|
| What are the practical takeaways? |
|
| Show notes | ‘‘What’s new with section 32’ factsheet – The Shopfront Youth Legal Centre Review of the Mental Health Review Tribunal in respect of forensic patients ‘Our Network 2019’ – Report by NSW Justice Health and Forensic Mental Health Network Thomas Spohr, ‘The New Mental Health Legislation’ December 2020 (available to download on Hearsay The Legal Podcast – Episode 30 ‘Criminal law and mental illness’) |
[1] World Health Organization. Trenčín statement on prisons and mental health. Copenhagen, Denmark: WHO Regional Office for Europe, 2008
| David Turner:
1:00 | Hello and welcome to Hearsay, a podcast about Australian laws and lawyers for the Australian legal profession, my name is David Turner. As always, this podcast is proudly supported by Assured Legal Solutions, a boutique commercial law firm making complex simple. There are over ten thousand people serving time in one form or another in the Australian correctional system. Of these inmates over 70% have or have experienced a mental health condition. Alarming yes, but surprising, less so. It’s no secret that those suffering from mental illness are over-represented in our criminal justice system. And in this episode, we explore how mental illness affects a person’s experience of the criminal justice process. We’ll take a deep dive into section 32 applications in the local court, fitness hearings in the District and Supreme Courts and the defence of mental illness and automatism. Joining me today on Hearsay to discuss these issues is Thomas Spohr, a trial advocate at Legal Aid NSW and former prosecutor for the Office of the Director of Public Prosecutions. Thomas thank you so much for joining me today on Hearsay. |
| Thomas Spohr: | It’s a pleasure. |
| DT: | Now, as I just mentioned in the intro, people living with mental illness are significantly over-represented in the criminal justice system in Australia and I imagine around the globe. So too are victims of crime. What percentage of your caseload at Legal Aid involves mental illness as some factor? |
| TS:
2:00 | I would say something approaching 100% of, at the moment, frankly because there’s a massive overlap between people who have mental illness and social and economic disadvantages, which is how they end up being clients of Legal Aid. But also, there are massive overlaps between those two factors and the reasons why people commit offences. So that’s not necessarily true of the whole criminal justice system. When I was a senior federal prosecutor for example, I was doing commercial crimes and whilst those people may have had mental illness you didn’t necessarily always see it in people who were company directors, or you know financial traders and those sorts of things. |
| DT: | There’s not necessarily a motivating factor or a causal factor in the – |
| TS: | Yeah I mean it may have been you don’t always know, but it’s just not maybe as pervasive as it currently is amongst my current clientele who are, as I say, overwhelmingly experiencing the kinds of disadvantage that overlap with mental illness and socio-economic disadvantage. |
| DT: | And when we’re talking about mental illness what are we talking about in that context? |
| TS:
3:00 | It’s kind of the whole gamut frankly, I mean mental illness in general is very common amongst the general population and so you’ll see a fair share of people who have depression and anxiety. But very commonly we’re seeing a lot of people with PTSD and that’s because as I say a lot of people are suffering major traumas in their early lives in particular. I’ve got my fair share of clients who have schizophrenia, although I should say overwhelmingly people with schizophrenia don’t commit offences again it’s just the overlap of people that I happen to have. A lot of people have substance use disorders, gambling disorders, those sorts of things. And then there’s sort of my fair share of people who also have personality disorders which tend to be the more difficult and troubling to deal with because you can’t treat those. And so to the extent that they’re related to their offending behaviour that can cause us some issues sometimes. |
| DT: | And each of those I imagine creates different difficulties with the topics that we’re about to discuss today. The first of which is a section 32 application in the local court, now for someone who’s not familiar with the section 32 application: What is that? |
| TS:
4:00 | So effectively, it’s a means of diverting people away from the criminal justice system into a sort of mental health side route if you like. And it’s a way of allowing those people to be dealt with stereotypically for minor offences, although not universally so, where they’ve got mental illnesses that make it inappropriate to be dealt with by the criminal law. TIP: Section 32 of the Mental Health (Forensic Provisions) Act 1990 provides a diversionary procedure, which allows magistrates in the local court to deal with persons with mental health disorders or intellectual disabilities otherwise than through the ordinary criminal justice framework. Now as Thomas says, this alternative is available for summary offences or for indictable offences which are triable summarily. The Court can make interlocutory orders under s 32(2), or final orders under section 32(3), where the Magistrate may for example dismiss the charge and discharge the defendant into the care of a responsible person or discharge the defendant for assessment or treatment of the defendant’s mental condition or cognitive impairment. The Shopfront Youth Legal Centre has a really useful fact sheet on s 32 applications, which we’re going to leave a link to in our show notes. |
| DT: 5:00 | And are they more typically brought, these applications, for particular types of offences? |
| TS: | Look, I think the answer is probably no. You will see that they tend to come up more often in less serious offending where there’s some sort of connection between the mental illness and the offending. So that’s not universally the case but that’s where they’re most common, and that’s partly because as a discretionary application they’re not commonly granted for very serious offences. But they tend to be for offences where there’s some sort of overlap with mental illness. |
| DT: | You mentioned it’s a discretionary application and that the seriousness of the offending is one of the factors that weigh on the exercise of the discretion, what are some of the others? |
| TS:
6:00
7:00 | So the seriousness of the offence, so it would be unlikely to see a section 32 application in a serious domestic violence offence where there was you know a real intention to do serious injury for example. It would be really uncommon to see one where there’s for example a riot or an affray or something like that, it would be pretty uncommon for there to be a section 32 application. One of the big issues is you know how serious the mental illness is. There’s absolutely no requirement in the law that there’s a connection between the mental illness and the offence for which the person is being dealt with, but more commonly where there is some sort of connection then you’d be more likely to see these kinds of applications being successful. And so you know a person who suffers from a relatively minor bout of depression is probably pretty unlikely to get up on a section 32 application for their speeding because those two things are completely separate from one another and within the spectrum of mental illness that type of depression that they have might not be very serious. On the other hand a person who has really serious PTSD and was triggered and as a result of that triggering committed a relatively minor common assault for example that might be more likely to get up. |
| DT: | And what sort of evidence is led in support of these applications? Obviously the factors that you’ve just described bear heavily on the objective factors in the case, the nature of the offending for example, but what other evidence are you looking at? |
| TS:
8:00
9:00 | Normally there will be some psychological or psychiatric evidence. It’s not an absolute requirement that those pieces of evidence be there but effectively you can call that a factor requirement that there’s some sort of psychological or psychiatric report. Sometimes it’ll come from a mental health nurse, particularly in the rural and regional areas where there might not be a psychiatrist or a psychologist available to give a report. If the person has a treating practitioner, again whether it’s a psychologist or a psychiatrist or a GP they’ll tend to provide a report as well. Most magistrates will want a so-called ‘treatment plan’ and that usually is part of the psychological report that you get. So overwhelmingly what you tend to see is some form of psychological report that provides first of all a diagnosis and then secondly an outline of what the appropriate treatment plan for that person might be. TIP: Now from the plain language of the legislation, section 32 has two limbs: first whether the defendant, at the time of the offence or the time of the court appearance has a cognitive impairment, mental illness or mental condition for which treatment is available. The second limb is an exercise of discretion by the magistrate, as to whether the matter is more appropriately dealt with under s 32 than according to law. However, it was suggested by the Court of Appeal in DPP v El Mawas [2006] NSWCA 154, and now it seems widely accepted, that there’s also a third limb: is there an appropriate case plan and/or treatment plan? This gossamer statute originates from the case of Perry v Forbes, in which Smart J highlighted the need for “an effective treatment plan and one which was likely to ensure that there would not be a repetition of the incident in question or the occurrence of some other unfavourable incident.” |
| DT: | We’ve talked about psychological and psychiatric reports on another episode of Hearsay when it comes to sentencing. How do these reports compare to say the kind psychological or psychiatric report you’d obtain for a sentencing purpose? |
| TS:
10:00 | They tend to be less in-depth, and they tend to deal less with the specifics of the offence at hand. And that’s partly because a section 32 application can be made at any time. So people will sometimes make a section 32 application at the outset before they enter any kind of plea, people are entitled to do that. The result of which is that it’s not appropriate in all cases for the psychologist to go into the depths of why the person might have committed the offences or done the things in question. So they tend to be less detailed, they tend to deal less with the subjective case of the person, that is the person’s subjective history. They tend to be much more focused on: this is the person’s diagnosis and this is how that person could be treated going forward for that illness or condition. |
| DT: | You mentioned that the application can be made at any stage of the process, even before a plea is entered. What is the most common point at which it’s made? Is there a common point? |
| TS: | I don’t know that there is a general rule. I think a lot of people make their applications at the point when they expect that they’re going to be found guilty they make a section 32 application. I think that’s common because I think in a lot of cases what happens is the lawyer looks at the case, realises that this person is likely to be found guilty, but also at the same time finds out that this person is suffering from some kind of mental illness and wants to obtain the best possible outcome for that person given the mental illness and given the circumstances. But I don’t think there’s any general rule about when it tends to come up, at least not in my personal experience anyway. |
| DT: 11:00 | Now, let’s move along down the process to when the psychological or psychiatrist report has been obtained and tendered, it’s been considered by the court as well as the objective factors of the offence, the objective seriousness of the offence, the diagnosis and the treatment plan and the court’s determined that it’s appropriate to divert that person out of the criminal justice system and to some other form of treatment. What continuing interaction does that person have with the criminal justice system? |
| TS:
12:00 | Hopefully none. One of the criticisms of the existing system, and I think at some stage a little bit later on today we might be talking about the system that’s going to replace it, but one of the criticisms of the existing system is that generally speaking once a person has got a section 32 application they just never get seen again and even if they have breached it, it tends not to come back to the court. I don’t know that I’ve ever seen a person who was subject to a section 32 application, putting them, say, in the care of their psychologist or somebody I don’t know if I’ve ever seen that person come back on a breach although they probably exist. My clients, on the occasions when I’ve made section 32 applications and I don’t make them regularly, my clients tend to be indictable clients and so we don’t have section 32 available to us. My clients hopefully I never see them again unless they commit a further offence of some other description that tends to be the next time I see them. |
| DT: | Can you give an example of a section 32 application that perhaps you’ve observed or been involved in earlier in your career that wasn’t successful? |
| TS:
13:00
| Yeah so commonly the ones that are unsuccessful are the ones that tend to have no very good connection between have no very good connection between the offending and the mental illness. So, the example I gave a little bit earlier of speeding offences where a person had a relatively minor case of depression, that’s a really common one. So when I was in private practice which is now some time ago, it was relatively common for people to come to us with driving offences and there are serious consequences for people when they lose their driver’s licences it might mean they lose their job, it might have all sorts of, you know, implications for care, but the fact of it is that very often there’s not really much that can be said by way of a defence. And so those people then have heard about a section 32 and they make an application. Even when the person has a relatively serious mental illness, something like bipolar or a schizophrenia or something like that and they’ve found it difficult to cope with that over time, even then when the connection’s not very good I’ve seen applications fail regularly on the basis that there’s not a very good connection. Equally I’ve seen a couple of applications where the offence itself was just so serious that you couldn’t possibly say that a section 32 diversion was appropriate, so for example where a person had been stabbed or something like that. In the absence of fairly extraordinary circumstances, it’s pretty uncommon for a magistrate to consider a section 32 in those circumstances. |
| DT: 14:00
15:00 | We’ll talk about the 2020 Act which was passed but not yet commenced in a little while but for now let’s move on to the indictable jurisdiction and the question of fitness to be tried. You’ve appeared for both the Crown and the accused Thomas, when do you generally see questions of fitness being raised? TIP: The test of fitness, or more accurately, unfitness to be tried, is covered under Part 2 of the Mental Health (Criminal Procedure) Act 1990. The term fitness refers to the accused’s capacity to comprehend and fairly participate in the proceedings. Now a fitness issue can arise for different reasons such as mental illness, developmental or intellectual disability, and physical disability or language difficulties. As Thomas will explain shortly, if the Court finds someone to be unfit for trial, then they can be referred to the Mental Health Review Tribunal, which will determine whether the person will become fit within 12 months from that finding. Now to help you follow on, we’ve created a really useful flow chart, which you can find in our show notes, and that chart explains the process for all of the different findings regarding fitness that can be made. So why not pause for a second, pull up that flowchart on your device now, and follow along. |
| TS:
16:00 | Nowadays in the local court, and that’s because it has serious consequences to the local court procedures to be carried out in committal matters; that is indictable matters. So generally speaking it gets picked up in the local court. On the other hand, sometimes fitness or more accurately unfitness doesn’t become obvious until later on. So I’ve had a number of clients who have come to me much later in the process and over the course of time it’s become apparent to me that they were not actually fit to be tried and it was just because the people who were previously involved had dealt with them maybe when they were at their best, when the client was at their best and they hadn’t spotted it for example. Or perhaps the person was being treated at the time and has since stopped their treatment. At any rate it can be raised much later and it does happen. Ideally though, if fitness is going to be an issue, you’d like to see it raised at the local court stage. |
| DT: | And your answer highlights something I was going to ask, which is to raise that as an issue ideally you are raising it early but to raise that as an issue you need to identify it as one first and not being mental health professionals and not being able to know what you don’t know, what signs are you looking for to identify whether or not fitness is going to be an issue? |
| TS:
17:00
18:00 | What’s that saying ‘I don’t know what it is but I’ll know it when I see it.’ That’s a really difficult question to answer. Part of the fun, if I can put it a little sarcastically about being a criminal lawyer, is that everybody you see has some form of mental illness and most matters have some sort of psychiatric or psychological report and so I think a lot of criminal lawyers tend to get reasonably good at identifying, maybe not the signs and symptoms of these mental illnesses, but at least being able to identify there’s something not quite right here. A common example will be though where a person expresses some sort of paranoid beliefs. I mean those are the ones that are the most obvious where they’ll say something like ‘I know that you’re just talking to the police’, ‘I know that we’re being recorded’, ‘I don’t want to tell you anything because they will hear’ and that the “they” in that sentence might be ill-defined government entities. Those sorts of examples are the relatively easy ones. I’ve had clients who claim that they’ve seen me before in the jail, you know, in the jail doing all sorts of crazy things. Even though I’d never actually been there during the time that the person had been in that jail. So it’s very, very difficult to give a list of what you might be looking for. The most you can probably say with any kind of certainty is that if you’re in doubt, you want to get a psychiatric report because fitness to be tried is not just a question of forensic advantage. It’s not just a question of doing the best thing by the client, it’s also a thing about professional responsibility and whether or not this client is capable of participating in the criminal justice system and capable of giving you instructions. It should be said that there’s unfitness and then there’s unfitness. I’ve seen clients who have been unfit to participate in a trial but I’ve been perfectly happy to accept their plea of guilty and deal with them that way, so it really very much does depend on what it is that they’re suffering from and the way that they’re reacting to the circumstances. |
| DT: | Speaking of this idea that there are kind of a multiplicity of tests of fitness, again similar to the way there is a multiplicity of tests for capacity, can you tell me about an example of one where a person might’ve been fit for one purpose but not for another? |
| TS: 19:00
20:00
21:00 | Yeah so, I had a client who a number of years ago was acutely schizophrenic and had been, or maybe more accurately was chronically schizophrenic, had been schizophrenic for years and years and had these really firmly held beliefs about being married to women in the seventh dimension through super string theory. He was unkempt, he was often extremely drunk, he was a chronic smoker, you’d be surprised about the smoking rates amongst people who suffer from mental illness. I think it’s about 70% of people with a psychotic illness are smokers. So he was, you know in pretty much every aspect of his life completely incapable of functioning. And yet he had a degree in an area that took I think five or six years ordinarily and he had done it in the normal amount of time. He was entirely capable of holding a conversation with me. He was if anything more capable than most of my clients to be able to understand the legal advice that I was giving him. Because of his schizophrenia though he’d be very difficult to keep on topic, he would fixate on things that made no difference at all, like little negligible differences about times. And that would’ve made it almost impossible if I’d ever had to put him in the witness box, because he just couldn’t stay on a topic, he would go off on tangents and he would go off on different things and he would I said fixate on unrelated things and then just periodically you’d get some comment about something that was as I say plainly the subject of psychosis. So in those circumstances he was, given how able he was to engage with the legal advice I gave him, he was fit to plead but he wasn’t fit to participate in a trial. And so having said that, I went and got some psychiatric advice about that I wasn’t just going to back my own judgement on that, I got some psychiatric advice and the psychiatric advice had confirmed what I though which was that yes he suffers from long-term delusions and schizophrenia, but provided you’re able to keep him on topic and get the instructions from him he is fit to plead guilty but not to participate in a trial. |
| DT: | I suppose that’s a good example of the different processes or the different events in the criminal justice process that you look to as to whether someone is capable of being fit to be tried in that case what you’re talking about is capacity to give evidence if it were necessary. |
| TS:
22:00 | Yeah so I also had another recent case where the client seemed for all the world to be fit and his psychiatric illness had been missed by at least four other lawyers. It wasn’t until I started questioning him really specifically in the close lead up to the trial that it became really clear that actually he had been doing a very good job of hiding a psychiatric illness. And in those circumstances, he had these psychotic delusions about what had happened on the day of the offence and whilst he was, and apparently he presented as, a completely normally functioning person that almost the polar opposite of the client that I just described, this subsequent client of mine was somebody who because of his psychotic beliefs about what had occurred on the day in question again was not fit to give evidence and was ultimately found unfit to be tried unfortunately. |
| DT: | I suppose in the same way that in the civil jurisdiction capacity has a number of different tests depending on the circumstances and there’s no one test to determine whether someone has capacity for example to enter into a contract or grant a power of attorney or what have you, it sounds like there’s a multiplicity of questions about fitness. |
| TS:
23:00
24:00 | Yeah and I mean the difference that I sometimes come across when I’m talking about capacity is that the difference here is that where a person has no capacity, that is in my case where the person is unfit, I will continue to represent them but I won’t be able to accept their instructions because by definition they’re unfit. I’ll do my best to accept the things that they tell me, but in those circumstances I’m not obliged to accept everything that they tell me. So that is a significant distinction but yeah it is kind of similar to that capacity question and the questions that people should be asking themselves are similar. Although it should be said that the test for fitness is in fact sort of codified, it will be formally codified under the Act. But it’s found in the Presser criteria and there are some questions that a lawyer can ask a client that they suspect to be unfit in an attempt to sort of flesh out whether or not they think they might be unfit. TIP: That reference to the ‘Presser’ criteria right now is a reference to the 1958 case of R v Presser which sets out a series of criteria for consideration on a question of fitness. Those criteria include the ability of the defendant to:
Keep all of these criteria in mind during our discussion about fitness. |
| DT: | You mentioned that fitness isn’t just about obtaining forensic advantage for the client, it’s also a matter of professional responsibility and the capacity of that person to participate in the criminal justice system. With that in mind what’s the role of the Crown when it comes to fitness? |
| TS:
25:00 | The Act says that the determination of fitness is a non-adversarial jurisdiction and so in theory their participation in the system should just be to put up a report and to examine whether or not the defence report is accurate in those sorts of things. There’s no presumptions about fitness, a person is not presumed to be fit. So in those circumstances the Crown’s job is really just to be somebody that tests the evidence and ensures that a person who is unfit is not forced into the criminal justice system, and a person who is not fit is not forced through the criminal justice system and a person who is fit is dealt with appropriately. |
| DT: | You mentioned it’s not an adversarial process, once those reports have been tendered how does the court determine fitness? |
| TS:
26:00 | So, the court will look at the two or if there’s more than two, however many psychiatric reports and they’ll attempt to apply the tests from Presser, establishing whether or not a person is capable of doing those sorts of things. So there’s the case Presser and there’s a decision of the High Court in Kesavarajah where the High Court helpfully reduced those Presser criteria into some bullet points. And I think again we’ll probably come back to them later ‘cause they’ve been they’ve been codified into the new Act as well. But the court will go through those criteria and will ask itself effectively ‘is the person capable of doing these things?’. So for example are they capable of exercising their right to challenge a juror? Are they capable of participating in the court procedures? Are they capable of instructing their lawyers? Those sorts of things. Are they able to understand the evidence as it goes. So, effectively it’ll ask itself whether or not the accused is capable of doing all of those things and if there are one or more where they’re not capable of doing it then the person’s unfit. |
| DT: | And if a person’s found to be unfit to be tried, then what’s the consequence of that order? |
| TS:
27:00
28:00 | That’s a big question, well more to the point that’s a big answer. If they are found unfit, the person under the current regime is sent off to the Mental Health Review Tribunal. And the Mental Health Review Tribunal first of all tries to determine whether or not the person is likely to become fit in the next twelve months. If they are going to become fit in the next twelve months, then effectively the matter just drags along for a little while until the person becomes fit and then it comes back to court. If they’re not likely to become fit in the next twelve months, then they do a number of things but they ask the DPP whether the DPP wants to proceed with the charges anyway and pursue charges in what’s called the ‘Special Hearing’. And that in itself is effectively just to a special kind of trial which is as nearly as possible a normal trial, except that there are some allowances made for the fact that the person is unfit and they’re not able to participate. There are a lot of different permutations on these things because as you can imagine a person who has these kinds of mental illnesses might come and go from the state of fitness, and so it’s not universally the case that that’s how it works, but that tends to be the situation. TIP: The Mental Health Review Tribunal is a tribunal created by the Mental Health Act 2007 (NSW). The Tribunal is responsible for the review of all forensic patients, being those in the care of a mental health facility or hospital, who:
A review of the Tribunal was conducted in 2017, and you can find a link to the review in respect of forensic patients in our show notes. |
| DT: | What strikes me about that process is that a fair amount turns on prosecutorial discretion, or to put it another way the election of whether or not the Crown intends to proceed with the charges. Is there a common practice at the DPP in relation to that? |
| TS: | I don’t know whether you could say that there’s a common practice, I think you could guess based on the seriousness of the offence whether or not they’re likely to proceed. And it should also be said that the regime that we’ve been talking about today is similar but not identical at the Commonwealth level, and so it’s not universally the case that even individual prosecutorial agencies take a similar approach. But to take a fairly obvious example, if a person is found unfit to plead in relation to say a murder trial you can safely assume that the prosecutor is going to bat on with that. |
| DT: | Sure. |
| TS: 29:00 | On the other hand if it’s a relatively trivial offence then it may be possible to convince them not to from the defendants’ perspective. But it very much depends on the particular circumstances. I’d say probably on average, if a charge is serious enough to have gotten to that point then on average the matters tend to go to a special hearing. |
| DT:
30:00 | And now staying with the 1990 Act for the time being, I wanted to talk about the perhaps archaically named insanity defence. Now that defence isn’t defined in the Act but it’s determined or defined by reference to the M’Naghten rules. Can you tell me a bit about that case? TIP: Now M’Naghten is probably a case that you’ve heard of, or at least vaguely remember from your undergraduate criminal law subjects. To refresh your memory before Thomas explains further, the M’Naghten Rules required a person labouring under a defect of reason caused by a ‘disease of the mind’, as it was formulated in 1843 when the case was decided, did not know the nature and quality of their acts, or that they did not know what they were doing was wrong. This is the current test applied to determine findings of not guilty by reason of mental illness as well as automatism, as Thomas will explain further shortly. |
| TS:
31:00 | To be honest it’s been a long time since I’ve actually looked at the facts of M’Naghten. What it stands for though is an incredibly well-known pair of propositions. The first one of which is whether or not the person knew the nature and quality of their act. And we can talk about what that means if you like, but the other one and this is probably the more common pair of allied propositions that are used as part of the insanity defence is whether or not the person knew that the act that they were committing was wrong and whether or not they were capable of reasoning with a moderate degree of sense and composure about what they were doing. So M’Naghten effectively sets those categories as being the circumstances in which so long as it’s caused by a ‘disease of the mind’ is the term of phrase that’s taken from M’Naghten, ‘a disease of the mind’ that causes one of those categories to be the case, that person will be capable of being found under the old sort of nomenclature ‘insane’, under the current turn of phrase we would call them ‘not guilty by reason of mental illness’ or ‘NGMI’. And I think under the new Act it will be referred to as an ‘act proven but not criminally responsible’. |
| DT: | So is it the case that while one of those propositions might be the far more commonly invoked one, it’s either one of those propositions being satisfied as sufficient to establish the defence? |
| TS: 32:00 | Yeah, I mean commonly you’ll find that people will potentially blur categories. So because mental illness as a general topic is a very messy category so they may know the nature and quality of their act, they may have some sort of general sense that what they were doing was wrong but they may not be able to reason with a moderate degree of sense and composure. But equally, they may be so psychotic at the time that whilst it might technically be argued that they knew the nature and quality of their act it’s very difficult even to go that far. So the answer to your question is yes, but there is often really a blurry of boundaries between them as well. |
| DT: | Let’s start with the proposition you said was the more common one to be invoked, the second, can you give me an example of the sort of case where that proposition would be made out? |
| TS: 33:00 | Yeah so a person who has a mental illness of the kind that we see here commonly but not universally will be suffering from some sort of psychotic delusion. So they might believe, for example, that they are being monitored by the government and they may believe that their parent or somebody like that is a conspirator in that process against them. So as a result of their mental illness, again let’s say schizophrenia, they know that what they’re doing when they harm that person or worse still kill them, they might know what they’re doing so we’re not falling into that first category. They might know technically that what they’re doing is wrong although we can argue about whether or not their definition of wrong in those circumstances is accurate, but their mental illness deprives them of the ability to reason with a moderate degree of sense and composure about whether or not they should be doing what they’re doing. So as I say, commonly it’s because people are acting on their psychotic delusions that they end up in this situation. |
| DT: | And what about that first proposition, the nature and quality of the act or I think as you quite aptly put it in your last answer, whether they knew what they were doing. |
| TS: 34:00 | Yeah so it happens, you might see examples where a person thinks that they are stabbing a cloud, rather than in fact stabbing a person. Or that they’re choking an animal or something rather than choking a human being. I keep using these interpersonal examples because they’re the ones that we see more commonly. In fact it’s not just those examples, there are other examples but particularly the nature and quality of the act one’s are generally pretty florid psychosis. And so it tends to be that they just do not comprehend the world the way that the rest of us do, which makes it very difficult for them subsequently to explain it. There are then these sort of blurry examples where they’re doing something like they’re stabbing a person that they believe to be the devil. You might argue about whether or not they know in those circumstances the nature and quality of the act or whether they just think that what they’re doing is morally right, and that’s why when I say the categories tend to get a bit blurred, those are the examples that really make it difficult. |
| DT: 35:00 | You can see the blur there between moral culpability or a sense of awareness of moral wrongdoing and an awareness of the nature of the act, those two questions seem related. There’s a discrete but related defence also quite archaically named of ‘insane automatism’, can you tell me a bit about what that is? |
| TS:
36:00 | Yeah so I mean you almost never see it commonly. In fact in my career I don’t think I’ve seen anybody in those circumstances but there’s a suggestion that in those circumstances that a person’s mental illness just completely deprives them of effectively any ability to control their own actions at all. I’d say I’ve never seen one. I think the sort of examples that used to fall in those categories are what we would probably now see as people who fall into some of the other categories. It’s sort of an extension of this principle that there needs to be a level of voluntariness to the actions that a person commits in order to be guilty of any kind of offence. But the fact that I’ve yet to see one in a career exclusively practicing in serious criminal offences suggests to me that there’s probably a lot of it out there at least I hope there’s not. |
| DT: | Sounds like it. Now of course the three tests that we’ve discussed in this on a section 32 application, on an application on whether a person is fit to be tried, and the defence of insanity, there are probably similar indicia that tell you those are likely to be issues in the case but different tests. And I imagine there’s similar evidence led in each application but again to prove different things, what sort of evidence are you leading where you’re invoking a defence of insanity? |
| TS: 37:00
38:00 | The short answer is: as little as possible. So, I mean one thing that’s worth talking about at some stage is the fact that you want to run mental illness defences almost never effectively but we’ll cycle back to that. The fact is though ultimately it turns on psychiatric evidence and whether or not the person had a disease of the mind is effectively, exclusively, the domain of psychiatrists. And the determination about whether or not the person falls into the various categories, that is whether or not they knew the nature and quality of their act or whether they knew it was wrongful, those sorts of things, those judicial determinations. But the evidence that gets led in those cases tends to be just the psychiatric material and as little of the factual material from the case as is necessary to make that out. So very commonly, on the rare occasions when insanity still gets run it tends to be in homicide cases and so usually, but not overwhelmingly, just on the basis of an agreed statement of facts or something like that, maybe not agreed for all purposes but agreed for the purposes of the application because in reality most of the time when we get to the point when we’re talking about a mental illness defence it’s last chance saloon and that’s why we’re running it. |
| DT: | You mentioned of course that you’ve never seen an insane automatism defence, but I imagine you’ve seen mental illness defences plenty of times in your career. Can you give me an example of a particularly illustrative one? |
| TS:
39:00
40:00 | Yeah so relatively early in my career as a lawyer when I was a prosecutor I saw one which was a gentleman who had a psychotic belief that he was being surveilled by the government. He believed for reasons that won’t make sense to the rest of us because it was part of his psychotic delusion that the necessary next step he needed to take to resolve that was to kill his wife and child. He then went and fairly brutally murdered his wife and then started out in attempting to murder his son before relenting, having not actually done any injury to the child, thank God, and then he went into the living room, wrote a letter of apology, left his signature in blood and then attempted to take his own life. One of the issues in the trial became that he wrote this letter saying he was sorry about what he’d done and one thing I didn’t mention was that he called triple 0 and admitted to them that he had killed his wife and attempted to kill his son. And in those circumstances one of the issues was well if he wrote an apology and called triple 0, did that indicate that he was understanding that what he had done was wrong? In the end there were I think seven psychiatric reports, that is seven separate psychiatrists and the judge determined that he was not guilty by reason of mental illness. So that was a case where it was pretty acute and as I say it’s generally ‘last chance saloon’ when you get to that point. |
| DT: | What happens after a finding that a person’s not guilty by reason of mental illness? |
| TS: | Yeah so that’s why as a general proposition, clients overwhelmingly should be getting the advice that you don’t want to run a mental illness defence unless there is no other option because the fact is that the person’s then going to be in the mental health system for the foreseeable future and often, if not typically, they may be in that system for longer than they would be than if they just got sentenced. |
| DT: | Right. |
| TS: | So, they may be subject to all sorts of restrictions and require treatments and they may be detained in a mental health facility. There’s all sorts of consequences about being found not guilty by reason of mental illness that are not apparent to people when they just see the sort of verdict. I think particularly the public they just see that this person got, found insane and they assume that that’s the end of the matter but for that person- |
| DT: | That they just walk out of court. |
| TS: 41:00
42:00 | Yeah, I mean in the case that I just described rather terrifyingly that gentleman did literally just walk straight out of court, although I came to understand later that the Mental Health Review Tribunal put him back into a mental health facility. So yeah it’s a really difficult situation for those people because they will then be subject to detention in effectively what we’re talking about in outdated terms of phrase, you know, an insane asylum, in a forensic hospital typically or at least in a locked ward of some description. And having been to a few of them professionally can I tell you that they are not places that you want to spend any time. TIP: After a finding that a person is not guilty by reason of mental illness, the Court can make an order for detention, where the defendant will be transferred to a mental health facility and classified as a ‘forensic patient’. Less commonly, the Court can also order unconditional or conditional release of the defendant, imposing conditions such as compulsory treatment or abstinence from alcohol or drugs. The number of forensic patients in NSW, across inpatient, community and custodial settings is increasing – from 364 in 2013 to 463 in 2019. Forensic patients often have complex mental health and criminogenic care needs, and the cost of care for forensic patients is extremely high. You can find a link to the NSW Department of Health’s 2016 Forensic Mental Health Patient Survey Report in our show notes. |
| DT:
43:00 | Yeah I can imagine they are very good reasons why this would as you say be your very last option. Now we’ve been alluding to this throughout the episode, the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 which has passed, received Royal Assent but not yet commenced, as at the time of recording which is October 2020 will repeal and replace the current 1990 Act and it will have a bearing on all three of the topics we’ve discussed today, the section 32 application, the question of fitness to be tried and the insanity defence. Let’s start with how the new Act will change section 32 applications. |
| TS:
44:00
| Yeah so as a practical matter they’re now found I think it’s in Part two and so we’ll have to stop calling them section 32s I’ll have to start calling them section 12s I think. As a practical matter most of the differences are reasonably limited. The Act does set out the considerations that a magistrate has to take into account when making the order, but there is still no requirement that there be a connection, notwithstanding as I said that commonly magistrates tend to look to see some sort of connection between the mental illness and the offence. Under the current regime that continues not to be the case, that is there continues to be no requirement of a connection, although I think you’ll probably find that there won’t be much change. There is one significant change which is that under the current regime the time that a person can be subject to an order is relatively short whereas under the new legislation it’s increased up to twelve months that person can be subject to an order as a result of the diversion. |
| DT: | What about the question of fitness to be tried? How does the new Act affect that? |
| TS: | It’s now in part 4 of the Act and it has codified aspects of the test and in particular it’s codified what I referred to earlier as the Presser criteria or sometimes known as the Kesavarajah criteria. It’s codified them or kind of split some of them apart although my personal reading of them without having had a chance to do a really deep dive on it suggests that they’re pretty similar and they’ve just made some practical improvements to make it slightly easier to follow. |
| DT: 45:00 | With that codification do you think these questions will be determined differently? Do you think they’ll be approached differently by the profession, or is it really a clarification and as you say a kind of a usability improvement? |
| TS:
46:00 | My guess is that at least in terms of fitness it’s unlikely to change much. The fitness test which is now in section, or will be in 36, section 36, sort of sets those same criteria out. One thing that will probably need to change is the format and content of some of the psychiatric reports, so the kinds of forensic psychiatrists that tend to get briefed in these things are pretty comfortable with the Presser criteria and the Kesavarajah restatement of that. I think they will probably struggle in the sort of medium term to retool themselves a little bit. Although at least as I understand it a lot of these changes are the result of some of these forensic psychiatrists complaining about the fact that the criteria were not set out in legislation and they were attempting to apply cases when they’re not lawyers. |
| DT: | It will at least make the experts job a little bit easier if nothing else. |
| TS: | Yeah hopefully. |
| DT: | And then finally the insanity defence or the mental illness defence we’ve already talked a little bit about what changes the 2020 Act will introduce to that regime including a change to the language of to the language of the finding which is ‘an act proved but not criminally responsible,’ which I think was a response to feedback from victims or victims advocacy groups. Can you tell me a bit about how the defence itself is changing? |
| TS:
47:00 | Yeah again it doesn’t seem to be changing very significantly, as you say I mean apart from the change of the name of what we describe as what we describe as the special verdict. So under the current regime you would say that the special verdict is not guilty by reason of mental illness and under the new legislation it would be an act proved but not criminally responsible because of mental health. The test though in section 28 seems to just straight up codify M’Naghten so it says you know that they didn’t know the nature and quality of the act and then they lumped together that they didn’t know the act was wrong with whether or not they could reason with a moderate degree of sense and composure and they literally use the same turn of phrase. So I think there is a degree of codification of the mental illnesses that go into that and that probably will be a significant improvement. So some of the time it’s been difficult to know whether something was a so-called disease of the mind because that was what the original cases referred to as a disease of the mind and the Act has now gone out of its way to impose a definition on these sorts of things and you know predictably it’s a massively complicated definition but at least it’s a definition that people can work with a degree of certainty. |
| DT: 48:00 | I suppose a definition that’s built upon a modern understanding of and a modern language around mental health. |
| TS: | Yeah, I mean I think hopefully it says things like, it gives examples in each case so it uses the term ‘mental health impairment’ which is what I think we probably would have referred to previously as a mental illness. And so it gives examples of like an anxiety disorder or an affective disorder or a psychotic disorder and it talks about a cognitive impairment and it gives examples of those. So if nothing else even if the criteria ultimately become difficult to apply in the future when they change the manual that psychiatrists use to do these diagnoses, at least the examples will give us something to work off of into the foreseeable future. |
| DT:
49:00 | Now we’ve spoken a bit about how the language is changing including the special verdict and I mentioned earlier about how that is driven by some feedback about the way that verdict is perceived, you mentioned before there’s a misconception that people who are found not guilty by reason of mental illness just walk out of the courtroom never to be seen again. Is that the impact of the change in the language of the special verdict or does it have another impact? |
| TS:
50:00 | That aspect of the change is probably as far as I can see is primarily just a change to reflect the actuality of what occurs. So whilst I think it’s probably true at least, at least as I understand it, to say that the urging for this amendment came from victims’ groups, that’s not to suggest necessarily that the new description is wrong it’s if anything a more accurate description of what is the actual situation which is that a person did the acts but was not criminally responsible for them. So as far as I can tell that aspect of it doesn’t seem to have a major change. There do appear to be some procedural changes in the Act to the determination about whether or not the person is going to become fit. That does tend to align a little bit better with the Commonwealth regime where for example the judicial officer makes a determination at the point of determining unfitness, whether the person is going to become fit in the next twelve months. I think that’s probably more procedural than anything else. It probably speeds things up a little bit as well to be fair. But as a general proposition those changes seem to be mostly pragmatic changes rather than driven by something else. |
| DT: | To conclude Thomas, you mentioned at the top of the episode that you see many clients who suffer from a mental illness or a mental health impairment, because there is often an overlap between social and socio-economic disadvantage and mental illness. Do you see the new Act as having an impact on access to justice for those who are facing a mental illness? |
| TS: 51:00
52:00 | I haven’t looked into it incredibly in-depth, although I understand that particularly from the people who have looked at some of this quite in depth that some of what the changes have brought about is likely to increase some of the access in relation to what we would currently call section 32 applications, but because it’s not my day-to-day work I find it very difficult to do a direct comparison. In relation to indictable clients, that is the people that I see day-to-day, as far as I can tell it’s unlikely to have a major difference. So, as I say for people who are doing section 32 applications day-to-day it seems that at least at the fringes some more cases may be getting in there I may be misunderstanding that. But in relation to indictable clients it seems very unlikely to make a major difference, although again it’s very very difficult to know with some of these things how the definitions in particular are going to play out in terms of the practical circumstances because mental illness and its intersection with criminal justice is one of the most complicated areas, and it’d be very difficult to foresee all of the kinds of circumstances where a particular mental illness might lead to an offence. So we’ll have to wait and see, I think the answer is probably, in relation to indictable offences: no, and in relation to summary offences: maybe. TIP: Thomas has given us his insights as to how the new legislation will operate in the context of what we’ve spoken about today, but of course, the real test will be seeing how the legislation works in practice. For background, we’ll leave a link to the two second reading speeches of the Bill in our show notes. |
| DT: | And I suppose we’ll also have to wait and see whether the codified language of the Act changes any of the operation of those tests in practice when the Act commences at some point next year. Thomas Spohr thank you so much for joining us today on Hearsay. |
| TS: | Pleasure. |
| DT: 53:00
54:00 | You’ve been listening to Hearsay The Legal Podcast. I’d like to thank our guest Thomas Spohr from Legal Aid NSW for coming on the show. Now if you liked this episode about the intersection of mental health and criminal justice, why not listen to our episode about sentencing for some more criminal law content which also touches on mental illness. Or listen to our episode about advising clients suffering from a disadvantage or vulnerability with Joshua Strutt and Ali Mojtahedi from the Immigration Advice and Rights Centre, and Leona Bennett, family law accredited specialist at Southern Waters Legal. If you’re an Australian legal practitioner, you can claim 1 continuing professional development point for listening to this episode. Whether an activity entitles you to claim a CPD unit is self-assessed, but we suggest that this episode constitutes an activity either in the substantive law field or the professional skills field, take your pick. If you’ve claimed 5 CPD points for audio content already this year, you might need to access our multimedia content to claim further points from listening to Hearsay. Visit htlp.com.au for more information on claiming and tracking your points on our platform. The Hearsay team is Tim Edmeades, our audio engineer, Kirti Kumar our chief researcher and content writer, Araceli Robledo our business development manager, and me, David Turner. Nicola Cosgrove is our executive producer and makes sure that we all do our jobs. Hearsay The Legal Podcast is proudly supported by Assured Legal Solutions – making complex simple. You can find all of our episodes as well as summary papers, transcripts, quizzes and more at htlp.com.au. That’s HTLP for Hearsay The Legal Podcast.com.au. Thanks for listening. |
You must be a subscriber to access this content.