There is a common misconception that a person can claim ‘mental health’ to escape criminal liability.
In reality, ‘mental health’ is not simply a card that can be pulled to escape criminal sanctions, but it can be relevant in three important ways in the criminal justice system.
The first is explaining the Defendant’s background when dealing with sentencing submissions.
This is in circumstances where the defendant has pleaded guilty to an offence and the Court is considering what the appropriate penalty is for the crime.
Explaining a defendant’s personal circumstances, which might include mental health difficulties or diagnoses, is critical to the sentencing process and is not using the label of ‘mental health’ to excuse criminal offending. Understanding the defendant’s background is one important aspect of the overall sentencing process which also includes the victim’s views, community standards, and personal deterrence (among other things).
The second is when considering ‘mental impairment’.
The starting point is to understand that the majority of criminal charges require proof of a physical element (called actus reus) and a mental element (called mens rea). Generally speaking, that mental element is an intention to commit the act.
Proving mental impairment is as lengthy and involved process. A defendant is presumed to be mentally competent unless it is proved otherwise.
For a person to be deemed mentally incompetent, it must be shown that as a consequence of the mental impairment, the person does not know the nature and quality of the conduct, or does not know that the conduct is wrong, or is total unable to control the conduct (pursuant to Criminal Law Consolidation Act 1935 SA s 269C). An investigation into competence requires expert assessment of and opinion on the defendant.
If a person is proved to be mentally impaired, that is not necessarily the end of the criminal charge against them. A concession of or trial on the objective elements (the physical element) can then occur. If the objective elements of the offence are conceded or found proved, the Court can impose a penalty on the mentally impaired defendant, which can include committing the defendant to detention, or releasing them on licence. A licence is generally a community based order and can include strict conditions.
The third is mental fitness to stand trial.
Similar but different to mental competence to have committed a crime, a defendant’s mental health can be relevant to whether they are fit to stand trial. A defendant must be fit to stand trial and is presumed to be so.
If, following an investigation pursuant to the Criminal Law Consolidation Act 1935 (SA), the defendant is deemed unfit to stand trial, the Court can proceed to deal with the objective elements of the offence (much like with mental incompetence).
A defendant’s fitness to stand trial may change over time. So in practise, a defendant may not be fit to stand trial now, but may regain fitness at a later time.
