Not guilty by reason of mental illness

Posted by janelle.tarabay on 02 November 2018

Media reporting of verdicts this week highlight the lack of understanding of what it means when an accused is found not guilty by reason of mental illness.

A finding of not guilty by reason of mental illness does not result in the person automatically being discharged into the community. In fact, often their detention in a medical facility can be just as long, or longer, and is more uncertain than a prison sentence.

The special verdict exists to recognise the long held principle that if someone is so mentally ill, so as to not understand the nature of what they are doing, or that it is wrong, they should not be held criminally responsible.

When is someone not-guilty by reason of mental illness?

In the District and Supreme Courts, if a jury (or judge) is satisfied that an accused:

  1. was mentally ill at the time of committing the offence; and
  2. because of that mental illness, was not responsible according to law for committing the act or omission;

the court returns a special verdict of not guilty by reason of mental illness. Section 38 Mental Health (Forensic Provisions) Act 1990.

This involves findings that:

  1. the accused was labouring under a defect of reason or mind; and
  2. did not know the quality or nature of the act he/she was doing, or did not know it was wrong.

This test comes from an old English case dating back to 1843, R v M’Naghten.

The finding can only be made if the court is first satisfied that the person did the action alleged. For example, it must be first proven beyond reasonable doubt that the accused did the physical acts that would otherwise make up the offence.

What then happens?

If a person is found not guilty by reason of mental illness, the court then considers what to do with the person. The court can order they be detained in such a place and manner as necessary, or they can release the person.

Importantly, the court is not to release the person unless satisfied that the safety of the person or public will not be seriously endangered.

The person is then given an initial review by the Mental Health Review Tribunal, and it makes an order about the person’s detention, treatment or release. Again, the Tribunal cannot release a person unless satisfied that doing so would not seriously endanger the patient or the public.

If the person becomes a forensic patient and is detained in a mental health facility, they are reviewed periodically where orders for treatment or detention are either continued or changed. Once a person is eventually released, the Tribunal can impose a number of conditions on their release, including monitoring, treatment, and travel restrictions. These patients are also subject to review by the Tribunal.

When faced with the reality of someone suffering from significant mental illness, most members of the community would agree that a seriously mentally ill person who commits an otherwise criminal act, should be treated differently than someone who is of sound mind, but still consciously chooses to commit the same act. The availability of the special verdict of not guilty by reason of mental illness does no more than to recognise that fundamental distinction.

By Justin Wong

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