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Project No 69 THE LAW REFORM COMMISSION OF WESTERN AUSTRALIA Project No 69 The Criminal Process And Persons Suffering From Mental Disorder DISCUSSION PAPER FEBRUARY 1987 The Law Reform Commission of Western Australia was established by the Law Reform Commission Act 1972-1985. The Commissioners are - Mr P W Johnston, Chairman Mr C W Ogilvie Mr J R Packington Ms M E Rayner The officers are Executive Officer and Director of Research - Dr P R Handford Research Officers - Mr M G Boylson Mr R W Broertjes Mr A A Head PREFACE The Commission has been asked to consider and report on a number of aspects of the law relating to the criminal process and persons suffering from mental disorder. The Commission has not formed a final view on the issues raised in this discussion paper and welcomes the comments of those interested in the topic. It would help the Commission if views were supported by reasons. The Commission requests that comments be sent to it by 16 April 1987. Unless advised to the contrary, the Commission will assume that comments received are not confidential and that commentators agree to the Commission quoting from or referring to their comments, in whole or part, and to the comments being attributed to them. The Commission emphasises, however, that any desire for confidentiality or anonymity will be respected. The research material on which this paper is based can be studied at the Commission's office by anyone wishing to do so. Comments should be sent to - Dr P R Handford Executive Officer and Director of Research Law Reform Commission of Western Australia 16th Floor, St Martins Tower 44 St George's Terrace PERTH WA 6000 Telephone: (09) 325 6022 Contents Paragraph CHAPTER 1 - TERMS OF REFERENCE 1.1 CHAPTER 2 - INTRODUCTION 1. Scope of the paper 2.1 2. Preliminary submissions and consultations 2.5 CHAPTER 3 - CRIMINAL RESPONSIBILITY AND MENTAL DISORDER 1. The existing law (a) Section 27 of the Criminal Code 3.1 (i) Mental disease or natural mental infirmity 3.3 (ii) Lack of capacity to understand what one is doing 3.6 (iii) Lack of capacity to know that what one is doing is wrong 3.7 (iv) Lack of capacity to control one's actions 3.9 (v) Delusions 3.10 (vi) Raising the defence 3.12 (vii) Burden of proof 3.13 (viii) Expert evidence 3.14 (b) The defence of insanity in trials on indictment 3.16 (c) The defence of insanity in trials in courts of summary jurisdiction 3.20 2. The law elsewhere (a) New South Wales, Victoria, South Australia, New Zealand and England 3.21 (b) Queensland, the Northern Territory and Tasmania 3.25 (c) United States of America 3.28 3. Automatism 3.29 4. Discussion (a) Abolition of the defence of insanity 3.32 (b) Retaining a defence of insanity (i) Introduction 3.38 (ii) Cognition and control 3.41 (iii) Responsibility 3.47 (iv) Mental disease or natural mental infirmity 3.49 (v) The Butler Committee recommendations 3.51 (vi) Should the prosecution be able to raise the insanity defence? 3.57 (vii) Burden of proof 3.59 (viii) Two stage trial 3.62 (ix) Other procedural matters 3.65 (x) Disposition 3.67 (c) Diminished responsibility 3.72 (d) Infanticide 3.88 5. Questions at issue 3.91 CHAPTER 4 - CRITERIA OF UNFITNESS TO STAND TRIAL 1. Present law 4.1 2. The law elsewhere 4.5 3. Proposals for reform elsewhere (a) New South Wales 4.7 (b) England 4.8 (c) Canada 4.13 4. Discussion 4.14 5. Questions at issue 4.18 CHAPTER 5 - FITNESS TO STAND TRIAL: PROCEDURE 1. Terms of reference 5.1 2. The procedure in Western Australia (a) Unfitness to stand trial due to mental disorder 5.2 (b) Unsoundness of mind during the trial 5.3 3. Difficulties with the existing law 5.4 4. Discussion (a) Introduction 5.8 (b) Raising the issue at a preliminary hearing 5.9 (c) Raising the issue at the trial (i) A pre-empanelment hearing 5.12 (ii) Postponing the issue until the opening of the case for the defence 5.15 (iii) Adjournment of the trial 5.20 (iv) Postponing the issue until the end of the trial 5.25 (v) Holding a special trial 5.29 (d) Who should be able to raise the issue? 5.43 (e) Who should determine the issue? 5.44 (f) A defendant's right of appeal 5.47 5. Questions at issue 5.49 CHAPTER 6 - POWERS OF COURTS OF SUMMARY JURISDICTION 1. Introduction 6.1 2. Fitness to stand trial (a) The present law 6.2 (b) Discussion 6.3 3. Section 36 of the Mental Health Act 1962-1985 (a) The present law 6.7 (b) Discussion 6.10 4. The insanity defence (a) The present law 6.12 (b) Discussion 6.13 5. Other powers (a) Hospital orders 6.16 (b) Psychiatric probation orders 6.25 6. Questions at issue 6.28 CHAPTER 7 - REVIEW OF THE SITUATION OF PERSONS DETAINED IN CUSTODY 1. Terms of reference 7.1 2. Persons found to be unfit to stand trial or insane during the trial (a) Present law and practice 7.3 (b) Discussion 7.6 3. Persons acquitted on account of unsoundness of mind (a) The present law 7.15 (b) Discussion 7.20 4. Persons subject to indeterminate sentence (a) The present law 7.25 (b) Discussion 7.26 5. Questions at issue 7.28 CHAPTER 8 - INDETERMINATE SENTENCES 1. Introduction 8.1 2. The original purpose of section 662 8.3 3. Release on parole 8.4 4. Discussion 8.6 5. Questions at issue 8.13 CHAPTER 9 - EXPERT REPORTS 1. Introduction 9.1 2. Exchange of reports 9.2 3. The power of courts to obtain psychiatric reports 9.7 4. Questions at issue 9.12 CHAPTER 10 - QUESTIONS AT ISSUE 10.1 APPENDIX - REFORMS IN THE UNITED STATES OF AMERICA Chapter 1 TERMS OF REFERENCE 1.1 The Commission has been asked: 1. To consider to what extent and on what criteria the law should recognise mental disorder or abnormality in a person accused of a criminal offence as a factor affecting his or her liability to be tried or convicted. 2. To consider whether there is any need for the continuance of the power in s 662 of the Criminal Code to impose an indeterminate sentence on a convicted person simply on the grounds of his or her 'mental disorder'. 3. To consider what procedures should be provided for reviewing the situation of persons who have been ordered to be detained or kept in custody because of their mental condition by orders made under ss 631, 652, 653, 662 or 693(4) of the Criminal Code, with a view to determining whether their detention or custody can be terminated. Such procedure should provide for review by way of administrative routine as well as at the request of the person detained or kept in custody. 4. To consider whether it is desirable for there to be a judicial investigation as to the guilt or innocence of an accused person notwithstanding that he or she has been found to be of unsound mind and ordered to be kept in custody pursuant to ss 631 or 652 of the Criminal Code, or admitted to an approved hospital consequent on an order made under s 36(2) of the Mental Health Act 1962. 5. To consider whether courts of summary jurisdiction require any powers beyond those in s 36 of the Mental Health Act 1962 to permit them to deal fully with accused persons who come before them suffering from mental disorder; in particular to consider whether they require powers analogous to those in ss 631, 652 and 653 of the Criminal Code. Chapter 1 / 2 6. To consider whether it is desirable that the prosecution and defence should be obliged to exchange, before trial, all expert reports relating to the mental condition of the accused person which are intended to form the basis of evidence to be adduced at the trial, and if that is thought to be desirable, to propose appropriate rules for the enforcement of that obligation. 7. To consider whether the courts should have power to obtain psychiatric reports, and if so, for what purpose, and in what circumstances, and by what procedure. 8. To review Division 6 of Part IV of the Mental Health Act 1962 (which deals with security patients) and its relationship to s 34C of the Offenders Probation and Parole Act 1963. Chapter 2 INTRODUCTION 1. SCOPE OF THE PAPER 2.1 The courts have for many centuries been confronted with people who have committed offences while mentally disordered or who are mentally disordered at the time of the trial, and rules and procedures for dealing with such people have gradually been developed. One response to such people was the development of the insanity defence. Insanity is not a psychiatric term. It is a legal term meant to encompass those persons who are so mentally disordered at the time of committing an offence that they should not be held responsible for their actions. The insanity defence developed with a movement of the criminal law from a basis of strict liability to one in which fault or moral blame-worthiness became an element of many offences. 2.2 In recent years various people have criticised the insanity defence and have proposed that it be abolished. Others, while accepting the need for such a defence, have criticised its formulation.
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