Plain English Guide to CRIMINAL LAW, MENTAL IMPAIRMENT

Transcription

1 Plain English Guide to CRIMINAL LAW, Mental Illness and MENTAL IMPAIRMENT in WESTERN AUSTRALIA THE MENTAL HEALTH LAW CENTRE (WA) INC. JUSTICE, FAIRNESS, EQUITY FOR PEOPLE WITH A MENTAL ILLNESS JUNE 2012

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3 Plain English Guide to CRIMINAL LAW and MENTAL IMPAIRMENT in WESTERN AUSTRALIA THE MENTAL HEALTH LAW CENTRE (WA) INC. JUSTICE, FAIRNESS, EQUITY FOR PEOPLE WITH A MENTAL ILLNESS JUNE 2012

4 Acknowledgments Research and commentary was provided by solicitors Sandra Boulter, Tracy Pearce, Amy Pepper, Tatum Burkett, Sharmini Chelvanayagam, Courtney Collins, Sally Dechow, Arch Kaminickas, Nicholas Snare, Lisa White, Nikki Wilson, James Woodford, Michelle Nguyen; and Aaron Chiong, Jessica De Jong, Amy Green, Laura Groves, Kaminni Kumar, Zhe Li, Sophie Manera, Michelle Ng, Gabriela Serrano, Amanda Silla, Patrick Spillane, Sarah Stone, Dimity Torpy, Kylie Woods and Caroline Zakowicz (volunteer law students). Sandra Boulter, Principal Solicitor and General Manager of the Mental Health Law Centre (WA) Inc. coordinated the project and edited the final version of this booklet. Printed and designed by Pilpel Print Text The Mental Health Law Centre (WA) Inc. Current as at June 2012 This first edition Published by the Mental Health Law Centre (WA) Inc Parry Street, Perth, Western Australia, P.O. Box 8466, Perth Business Centre Western Australia, June 2012 ISBN: Disclaimer of Liability Legal issues concerning the judicial system and mentally impaired accused can be complex and will vary from person to person. While care has been taken in the preparation of this booklet, the writer and publisher disclaim any liability for action taken or not taken as a result of the contents of this booklet or for any errors or omissions in the information. This booklet is written for people affected by the laws of Western Australia. ii

5 Contents DEFINITIONS: SOME WORDS IN THIS BOOKLET HAVE SPECIAL MEANING 1 WHAT IS THIS GUIDE ABOUT? 4 HAVE I BEEN CHARGED WITH AN OFFENCE/CRIME AND WHAT DO I DO? 5 Is there a difference between offence and crime? 5 What shall I do if the police want to talk to me about something they might want to charge me for? 5 How will I know if I have been charged with an offence/crime? 5 What if I am under arrest or otherwise in custody at the time I am charged with another offence/crime? 6 What if I am not under arrest or otherwise in custody at the time of being charged? 6 Serious offences/crimes 6 Less serious offences 6 What should I do if I lose the police documents? 6 How will I know when I have to go to Court? 7 How many times will I have to go to Court about my charges? 7 What will happen if I do not attend Court when the notice tells me to? 7 Can I overturn a conviction that is made in my absence? 8 YOUR FIRST ATTENDANCE AT COURT 9 What will happen if I am an involuntary patient detained in a psychiatric hospital on the date of my first appearance? 9 What will happen when I go to Court? 9 What happens if I am granted bail? 10 What happens if I am refused bail? 10 What can I do if I do not agree with the Magistrate s decision not to grant me bail? 11 What will happen if I am released on bail and do not attend my next Court date (or breach one of my bail conditions)? 11 What should I do if I miss my Court appearance? 12 What are the different types of offences? 12 How does the Magistrate decide whether or not my charges will be decided in the Magistrates Court, or the District or Supreme Courts? 12 If I am found guilty will the Court punish me more harshly because I have a mental illness/impairment? 13 iii

6 If I am found not guilty because the Court found that I had an unsound mind at the time I committed the offence, what will happen to me? 14 CAN I RECOVER MY LEGAL COSTS IF I SUCCESSFULLY PLEAD AN UNSOUND MIND AT THE TIME OF MY OFFENCE/CRIME? 15 WHERE CAN I BE DETAINED UNDER THE MIA ACT? 15 HOW CAN I BE DETAINED IF I AM ACCUSED OF A CRIME AND I HAVE A MENTAL IMPAIRMENT? 15 HOSPITAL ORDERS 16 What is a Hospital Order? 16 What will happen to me under a Hospital Order? 17 What happens when my Hospital Order ends? 17 What are my rights under a Hospital Order? 17 CUSTODY ORDERS 18 What is a Custody Order? 18 When can I raise the issue of being mentally unfit to stand trial? 18 What happens if I am found mentally unfit to stand trial? 18 Summary Offences (Magistrates Court) 18 Indictable Offences (Supreme Court and District Court) 19 When can I be found not guilty by reason of my unsound mind? 20 What happens if a Custody Order is made against me? 21 Who must the MIARB tell that I am on a Custody Order? 22 How does the MIARB decide whether or not the Governor should release me from my Custody Order? 23 Can I appeal against a Custody Order made by a Judge or Magistrate? 23 Custody Order made by Magistrate because of an acquittal based on your unsound mind or because you are unfit to stand trial 23 Custody Order made by Judge because of an acquittal on the basis of your unsound mind 24 Custody Order made by Judge because you are unfit to stand trial 24 Can I appeal against a decision made by the MIARB not to release me? 24 Can I appeal against the decision by the MIARB to detain me in a prison? 25 Do I have a right to be treated for my mental illness while I am in prison? 25 Can I refuse psychiatric treatment when I am in a prison? 26 Can I ask for a Leave of Absence Order from a Custody Order? 26 What will happen if I leave my place of detention without permission? 27 How can my Custody Order be ended? 27 iv

7 RELEASE ORDERS 28 What is a Release Order? 28 What happens if I breach a condition of my Release Order? 28 THE MENTALLY IMPAIRED ACCUSED REVIEW BOARD (MIARB) 29 Who makes up the MIARB and how are they chosen? 29 Can I request an early hearing before the MIARB? 29 Do I have a right to put my case in person to MIARB? 29 Can I be legally represented at a MIARB hearing? 30 Can I have a copy of any document in a decision made by the MIARB? 30 What documents do I have a right to have? 30 COMMONWEALTH (FEDERAL) OFFENCES/CRIMES 31 What is a Commonwealth offence/crime? 31 What happens if I suffered from a mental impairment at the time of committing a Commonwealth offence? 31 What happens if I am found mentally unfit to stand trial? 32 How can I be detained if I am accused of a Commonwealth offence and I suffer from a mental illness? 33 Sentencing Options 33 Hospital Orders 33 Psychiatric Probation Order 33 Dismissal of Charges 34 Western Australian COUNCIL OF OFFICIAL VISITORS 35 Who are the Official Visitors? 35 Can I request an attendance by an official visitor if I am detained on a custody order? 35 What do Official Visitors do? 35 How do I contact the Council of Official Visitors? 35 VICTIMS OF CRIME 36 Who do I contact if I or someone else is the victim of a crime? 36 How do I make a complaint and have someone charged? 36 Can I be sued for committing a crime against someone as well as being charged by the police? 36 v

8 Criminal Injuries Compensation 38 Can I be compensated if I am the victim of a crime? 38 When do I have to lodge my Criminal Injuries Compensation application? 39 Where can I get an application form? 39 Who can help me fill out a Criminal Injuries Compensation form? 39 How can I contact the people in charge of Criminal Injuries Compensation? 40 SAMPLE LETTERS THAT MAY BE USEFUL 41 (a) Sample Freedom of Information application letter to MIARB if the request is for personal information 41 (b) Sample Freedom of Information application letter to MIARB where request is for information which is not personal information 42 (c) Sample internal review letter if no response or refusal of documents or documents you know are missing 43 (d) Sample external review letter if no response or refusal of documents or documents you know are missing 44 (e) Sample Freedom of Information application letter to the Department of Attorney General (for documents of a legal nature) if the request is for personal information 45 (f) Sample Freedom of Information application letter to the Department of Attorney General (for documents of a legal nature where request is for information which is not personal information) 46 (g) Sample Freedom of Information application letter to the Public Advocate (for documents relating to personal guardianship) if the request is for personal information 47 (h) Sample Freedom of Information application letter to the Public Advocate (for documents relating to personal guardianship where information request is not personal information) 48 (i) How to make a law reform submission to the Attorney General 49 MENTAL HEALTH LAW CENTRE (WA) INC. 50 Aims of the Centre 50 How do I contact the Centre? 51 USEFUL SERVICES 52 LEGAL HELP Mental Health Law Centre (WA) Inc Legal Aid WA 52 vi

9 NON - GOVERNMENT ORGANISATIONS Health Consumers Council WA (Inc.) 54 GOVERNMENT ORGANISATIONS Mental Health Commission Office of the Chief Psychiatrist Health and Disability Services Complaints Office The Director General of Health The Corruption and Crime Commission The Australian Health Practitioner Regulation Agency Council of Official Visitors The Royal Australian and New Zealand College of Psychiatrists State Ombudsman Corrective Services Complaints (Prisons) The Office of the Inspector of Custodial Service State Attorney-General Commonwealth Attorney-General 62 SERVICES FOR PEOPLE WITH HEARING OR SPEECH IMPAIRMENTS 63 HOW TO MAKE A COMPLAINT (NOTIFICATION) ABOUT A HEALTH PRACTITIONER 63 RELEVANT LAWS 65 Acts 65 Regulations 65 vii

10 Definitions DEFINITIONS: SOME WORDS IN THIS BOOKLET HAVE SPECIAL MEANING arrest warrant is a document issued by police for someone to be taken into police custody authorised hospitals means hospitals in Western Australia, which are authorised by the Government to hold patients with a mental illness against their will bench warrant an order made by a Magistrate or Judge, which requires a person to be brought into police custody for missing a Court date Court hearing notice means notice of a hearing date but does not require you to attend Court CTO means Community Treatment Order Custody Order means a Court order that a mentally impaired accused person is to be kept in custody declared place is a place declared by the Governor of Western Australia by an order published in the Gazette to be a place for the detention of mentally impaired accused detention centre as defined in the Young Offenders Act 1994 (WA) and is a place declared by a Minister by an order published in the Gazette to be a detention centre for a young person who has not reached 18 years of age Frankland Centre is a maximum-secure authorised psychiatric hospital within the Graylands Hospital campus, which is operated by the WA State Forensic Mental Health Service. The 30-bed facility assesses, securely detains, treats, rehabilitates and/ or re-socialises mentally ill patients and mentally impaired accused persons adults and children -, many of whom have been referred from the Courts or the prison system involuntary patient means an adult or minor who is for the time being the subject of an order under the Mental Health Act 1996 (WA), and who is detained in an authorised hospital or who is living in the community under a Community Treatment Order 1

11 Legal Aid is an independent statutory body set up by the Legal Aid Commission Act They provide information, advice and other legal help, depending on your financial position, your legal problem and Legal Aid s resources from time to time mental illness in relation to fitness to stand trial and Custody Orders under the MIA Act, is defined in the same way as it is in the Mental Health Act 1996 (WA) mental illness in the Mental Health Act 1996 (WA) is defined as follows: A person has a mental illness if the person suffers a disturbance of thought, mood, volition, perception, orientation or memory that impairs judgment or behaviour to a significant extent. A person does not have a mental illness by reason only of one or more of the following, that is, the person: a) Holds, or refuses to hold, a particular religious, philosophical, or political belief or opinion; b) Is sexually promiscuous, or has a particular sexual preference; c) Engages in immoral or indecent conduct; d) Has an intellectual disability; e) Takes drugs or alcohol; f) Demonstrates anti-social behaviour. mental impairment in relation to fitness to stand trial under the MIA Act includes intellectual disability, mental illness (as defined above), brain damage and/or senility mental unfitness to stand trial means a person is not mentally fit to stand trial for an offence/crime, if because of mental impairment, he or she is unable to: understand the charge; understand the need to plead to the charge; understand the effect of a plea; understand the purpose of a trial; understand or exercise the right to challenge jurors; follow the course of the trial; understand the substantial effect of evidence presented by the prosecution in the trial; or properly defend the charge. The person may or may not have been mentally fit at the time that the offence or crime they have been charged with was committed. 2

12 MHRB means the Mental Health Review Board, which is established under the Mental Health Act 1996 (WA) to review involuntary orders made under the Mental Health Act MIA Act means the Criminal Law (Mentally Impaired Accused) Act 1996 (WA) MIARB means the Mentally Impaired Accused Review Board, which is established under the MIA Act to review orders made under the MIA Act prosecution notice means a document that will tell you what you are charged with public interest refers to considerations affecting the good order and functioning of community and government affairs in relation to the well-being of citizens, and which might be applied by a police officer, the Director of Public Prosecutions or a Court in deciding how to dispose of criminal charges against someone with a mental illness or mental impairment senior mental health practitioner is defined in the Mental Health Act to be a mental health practitioner with at least 5 years experience in the treatment of persons who have a mental illness summons means a document that will state the time and place, and where and when you are required to attend Court These defined terms where they appear in this booklet will appear in bold font. 3

13 What Is This Guide About? If you are charged with an offence or a crime in Western Australia and you have a mental illness and/or a mental impairment, there are laws to make sure that the Courts take your mental state into account when dealing with and disposing of your charges. Some of these laws are found in an Act called the Criminal Law (Mentally Impaired Accused) Act 1996 (the MIA Act). This booklet is about the MIA Act and is designed to help you understand: what will happen to you if you are charged with an offence and if the MIA Act applies to you; how you can be detained under the MIA Act; and your rights while you are detained under the MIA Act. If you have any questions about your treatment or assessment if you are accused of a crime and this Act applies to you, you should speak to the psychiatrist who is treating you, and your lawyer(s). If you have a question about how the MIA Act affects you, you can find this out from the Mental Health Law Centre, Legal Aid Western Australia or your own lawyer. A list of other organisations, which may be able to help you, is found at the end of this Guide. 4

14 Have I Been Charged With An Offence/Crime and What Do I Do? Is there a difference between offence and crime? Yes. The word offence is a general term used to refer to all unlawful acts regardless of their seriousness. It includes all unlawful acts ranging from speeding in a car to murder. A crime is only a serious offence, such as murder and armed robbery. Please note that in everyday language the term crime is often used interchangeably with the term offence. For example, a person may incorrectly refer to speeding as a crime, which is technically incorrect- it is an offence or an unlawful act. What shall I do if the police want to talk to me about something they might want to charge me for? If the police reasonably suspect that you have committed an offence, they are authorised to ask you to provide your personal details, which include your full name, date of birth, your current address or your usual address. 1 You are required only to provide these details (and nothing more). If the police reasonably suspect that the information you give them is false, they can ask you to produce documents that show the information you have given them is true. 2 You should not participate in any video recorded interview, or make any statement to the police before talking to your lawyer. How will I know if I have been charged with an offence/crime? If you are charged with an offence/crime you will be issued with a prosecution notice. This notice will tell you what you are charged with. 1 s 16(2) Criminal Investigation (Identifying People) Act 2002 (WA) 2 s 16(3) Criminal Investigation (Identifying People) Act 2002 (WA) 5

15 What if I am under arrest or otherwise in custody at the time I am charged with another offence/crime? If you are under arrest or otherwise in custody at the time you are charged with a new offence/crime, you must be given the prosecution notice. 3 What if I am not under arrest or otherwise in custody at the time of being charged? Serious offences/crimes If you are not under arrest or otherwise in custody, and you have been charged with an offence or a crime, you will be issued with a summons, which will require you to attend a Court hearing. If you do not attend the hearing on the due date you may be arrested. 4 The summons should be within your prosecution notice. 5 If you are arrested and you have not been issued with a prosecution notice before your arrest, the prosecution notice must be attached to your arrest warrant. 6 Less serious offences If you are not under arrest or otherwise in custody, and you have been charged with an offence/crime of a less serious nature you will be issued with a Court hearing notice; or you will be arrested. 7 The Court hearing notice should be included within the prosecution notice. 8 If you are arrested and you have not been issued with a prosecution notice before this, it must be attached to the arrest warrant. 9 What should I do if I lose the police documents? You can obtain a copy of your Court documents from: In person: From the Police Post 3 rd floor Perth Magistrates Court, or From the Clerk of the Court in which you have to appear. 3 s 27 Criminal Procedure Act 2004 (WA) 4 s 28 Criminal Procedure Act 2004 (WA) 5 s 32(1)(b) Criminal Procedure Act 2004 (WA) 6 s 31 Criminal Procedure Act 2004 (WA) 7 s 28 Criminal Procedure Act 2004 (WA) 8 s 33(1)(b) Criminal Procedure Act 2004 (WA) 9 s 31 Criminal Procedure Act 2004 (WA) 6

16 In writing: To the Clerk of the Court in which you have to appear To the Investigating Police Officer. There may be a charge for the copies from the Court because you will need to complete a Form 1 Application for the replacement documents. How will I know when I have to go to Court? If you are not under arrest or otherwise in custody, a summons will state the time and place where you are required to attend Court. 10 If you have received a Court hearing notice, it will state the time and place of your Court hearing but you will not have to attend Court. If you have received a Court hearing notice and do not attend Court, you can send in a written plea of guilty or not guilty. If you plead guilty the Court will decide the matter in your absence. If you send in a written plea of not guilty the Court will set a hearing date and issue you a notice of when you have to attend Court for the trial. If you do nothing (do not send a written plea to the Court and do not attend Court), the Magistrate can convict and sentence you in your absence. How many times will I have to go to Court about my charges? The number of times you have to attend Court about your charges will depend on the circumstances and seriousness of your charge(s), and how you plead to the charge(s). You may have to attend Court a number of times before the Court process is finished. What will happen if I do not attend Court when the notice tells me to? If you are late for Court or do not attend at all on the day you are due in Court and you do not send the Court a written plea in time, the Court may determine the charge(s) at the hearing in your absence as follows: the Court may take as proved any allegation in the attached prosecution notice without hearing evidence; OR the Court may decide to summons you to Court or have you arrested and brought before the Court. If the Court finds you guilty in your absence, it may fine you and order you to pay Court costs and the prosecutor s costs. 10 s 32 Criminal Procedure Act 2004 (WA) 7

17 Can I overturn a conviction that is made in my absence? Yes. You can apply to have a conviction overturned if it was made in your absence. This application is made to the Magistrates Court. You apply to have your conviction overturned in these circumstances by lodging a document called, Magistrates Court Application to Set Aside a Decision Made in Absence of a Party also known as a Form 7. You can access and print this document from the Magistrates Court website at and then click Criminal Matters on the left hand side, and click on Form 7- Application to Set Aside Decision. 8

18 Your First Attendance At Court What will happen if I am an involuntary patient detained in a psychiatric hospital on the date of my first appearance? If you are detained as an involuntary patient in a psychiatric hospital: you may be taken to Court; or you may appear by video link; or your psychiatrist may choose to write a medical letter to the Court asking that you be excused from attendance, which you or your lawyer can give to the Court on the date of your first appearance. What will happen when I go to Court? If you do not already have a lawyer you should arrive at Court early and ask to see a Legal Aid duty lawyer. The duty lawyer can assess whether or not you should make an application for Legal Aid. Anyone can help you fill out your application for Legal Aid. If your matter is not finished after your first appearance, the Magistrate will decide or reconsider whether or not you should be granted bail. This means that the Magistrate will decide whether or not you must be detained in a prison or released until your charge(s) is/are decided. You may need to have organised someone to act as your surety for a bail application. A surety is a person who agrees to forfeit a sum of money or some other security if you fail to comply with your bail conditions. If you fail to comply with any condition of your bail, the surety money or any other security supplied by you or others, will be forfeited to the Court. 11 If you do not have a surety, this will not necessarily prevent you being granted bail (but it might). 11 s 35(1) Bail Act 1982 (WA) 9

19 What happens if I am granted bail? If you are granted bail, you will have to agree to: attend your next Court date at the set time; and comply strictly with all your bail conditions. Examples of bail conditions that the Court might apply include that you: live in a particular place; comply with a home detention order; receive treatment from your doctor or psychiatrist; do not contact particular people or enter specified places, which the Court will name (sometimes called protective bail conditions); abide by a curfew (that is, the time each day that you must be back where you are living); and/or put forward a sum of money or some other thing that you will lose if you do not comply with your bail conditions. 12 What happens if I am refused bail? If the Court refuses you bail AND the Court believes you require assessment by a psychiatrist and you are not an involuntary inpatient, the Court can make a Hospital Order. This means that you will be sent to a psychiatric hospital (for up to seven (7) days) for examination by a psychiatrist. (See the Hospital Orders section of this Guide). The Magistrate cannot make a Hospital Order if you are an involuntary patient. If you are refused bail AND the Magistrate does not make a Hospital Order, then the Magistrate will make an order to keep you in custody in a prison. This means that you will stay in prison (or an authorised hospital) to wait for your next Court appearance. If, during your time in prison, you become so mentally unwell that you require treatment in a psychiatric hospital, a psychiatrist can make you an involuntary patient. You can then be moved from the prison and sent to a psychiatric hospital for treatment. 12 Schedule 1 Part D Bail Act 1982 (WA) 10

20 What can I do if I do not agree with the Magistrate s decision not to grant me bail? You can re-apply to the same Court that refused your bail application and ask the Court to reconsider whether or not bail should be granted. In that application, you will have to satisfy the Court that: a) new facts have been discovered, new circumstances have arisen or your circumstances have changed since bail was first refused; b) you failed to adequately present your case for bail on the previous occasion that bail was refused; or c) if bail was granted subject to a home detention condition, that you have complied with this condition for a month or more. If one of these considerations is satisfied, the Court may grant you bail or vary the conditions of your bail. 13 It would be helpful to have a lawyer make this application for you. You cannot appeal to a higher Court against a Magistrates Court decision to refuse you bail. 14 However, if the decision to refuse you bail was made by a Judge in the District or Supreme Courts, you can apply for leave to appeal against the bail decision to the Western Australian Court of Appeal. 15 This application for leave to appeal must be lodged within 21 days of the date that your bail decision was made. What will happen if I am released on bail and do not attend my next Court date (or breach one of my bail conditions)? If you fail to attend Court, or you fail to appear as soon as practicable, or you breach a protective bail condition, you may be charged with breaching your bail conditions. If guilty, the Court can issue a bench warrant for your arrest, and fine you up to $10,000 and/or imprison you. 16 You may also have to pay the cost of your apprehension by the police following the breach of your bail condition(s). If you give false information for bail purposes, the Court can fine you up to $1,000 and/or imprison you s 15B(4) and s 15B(5) and s 54 Bail Act 1982 (WA) 14 s 7(3)(c) Criminal Appeals Act 2004 (WA) 15 s 15A(2) Bail Act 1982 (WA) 16 s 51 Bail Act 1982 (WA) 17 s 62 Bail Act 1982 (WA) 11

21 What should I do if I miss my Court appearance? If you miss your Court appearance for any reason, you should attend Court as soon as possible afterwards and hand yourself into the police at Court. This will show the Court and police that you are not trying to avoid Court. If you had a genuine reason for not being able to attend Court, such as being ill or because of an emergency, you should bring evidence of this with you when you hand yourself in at the Court. What are the different types of offences? Offences fall into one of the following three categories: 18 Indictable (pronounced indite-able) only offence: the offence is a crime, and there is no specified summary conviction penalty. It must be dealt with on indictment. Examples of indictable offences include murder and armed robbery. Indictable offences can only be heard by a Judge in the District or Supreme Courts. Summary only offence: the offence is a simple offence and can only be dealt with summarily. 19 Examples of summary offences include damaging property, disorderly behaviour in public and trespass. Summary offences can only be heard before a Magistrate in the Magistrates Court. Either way offence: the offence is a crime, but also has a summary conviction penalty. Examples of either way offences include being armed to cause fear, receiving stolen property and fraud. Either way offences can be heard either by a Magistrate in the Magistrates Court, or a Judge in the District or Supreme Court. How does the Magistrate decide whether or not my charges will be decided in the Magistrates Court, or the District or Supreme Courts? When the law provides a choice between an offence being summary or indictable, the Magistrates Court must decide the outcome of your charges summarily unless: i) you or the prosecutor apply for the charges to be tried on indictment (that is, in the District or Supreme Court), before you plead to the charge; or ii) a written law requires that your charge must be dealt with in the District Court or Supreme Court. 18 s 5 Criminal Code Act Compilation Act 1913 (WA) 19 Except under s 32 Sentencing Act 1995 (WA) 12

22 If an application is made to hear the case in a Superior Court, the Magistrate can only allow this to happen if the Magistrate decides that: the circumstances of your offence are so serious that if you were convicted of the offence the Magistrates Court would not have the power to punish you adequately; your charge forms part of a series of alleged offences you committed during a course of conduct and you must be tried for one or more of these other offences in a higher Court; you have a co-accused who is to be tried for the same offence in a higher Court; your charge forms part of a course of conduct during which other offences were said to have been committed by you and others, and you or one of the others is to be tried in a higher Court for one or more of those other offences; or the interests of justice require that your charge is dealt with in a higher Court. To make its decision about which Court your charges will be heard, the Magistrates Court may require information from the prosecutor and may hear submissions from both you or your lawyer, and the prosecutor. The Court may adjourn the proceedings to think about its decision once it has heard from both sides or the Court may decide at the time of the hearing. Once the Magistrates Court has made its decision about where your charges will be heard, the decision is final and you cannot appeal against this decision. If the Magistrates Court convicts you of your charges summarily, it can: send you to a higher Court for sentencing where heavier sentences can be made; or sentence you to the penalties available to the Magistrates Court. If I am found guilty will the Court punish me more harshly because I have a mental illness/impairment? No. The Court is required to take into consideration your mental illness/impairment and it is possible that this will result in a more lenient sentence being imposed (than if you did not have a mental illness/impairment) See Krijestorac v The State of Western Australia [2010] WASCA 35; R v Verdins [2007] VSCA

23 If I am found not guilty because the Court found that I had an unsound mind at the time I committed the offence, what will happen to me? Under the MIA Act, if you are found not guilty of an offence/crime because you had an unsound mind at the time of the offence/ crime, the following rules apply: In a Magistrates Court (or the District or Supreme Court) if your offence is not listed in Schedule 1 of the MIA Act, the Court may decide to: (i) Release you unconditionally, if it considers it is just to do so; To reach this decision the Court will look at: - the nature of your offence and the circumstances under which you committed the offence; - your age, character, health, mental condition and prior history; and - the public interest (ii) Or make: - a conditional release order (CRO); - a community based order (CBO); - an intensive supervision order (ISO); or - a Custody Order. The Court cannot make a CBO, CRO or ISO unless the order could have been made if you had been found guilty of the offence. If you breach a CBO, CRO or ISO and it is cancelled, the Court must then make a Custody Order (see the Custody Orders section in this Guide). In the District Court or Supreme Court, if your offence/crime is listed in Schedule 1 of the MIA Act, the Court must make a Custody Order. (See the Custody Orders section in this Guide). 14

24 Can I Recover My Legal Costs If I Successfully Plead An Unsound Mind At The Time Of My Offence/Crime? No. Where Can I Be Detained Under The MIA Act? There are a number of hospitals in Western Australia which are authorised by the Government to keep patients with a mental illness against their will. These are called authorised hospitals. The most secure authorised hospital in Western Australia is the Frankland Centre. You can be sent to the Frankland Centre by a Hospital Order or a Custody Order. If a Custody Order is made against you, you can be detained in an authorised hospital, a declared place 21 or a prison. At the date of writing this Guide, there is no declared place built in Western Australia. If you are a young offender you may be kept in a detention centre. 22 How Can I Be Detained If I Am Accused Of A Crime And I Have A Mental Impairment? There are three ways that you can be detained under the MIA Act: a Hospital Order, a Custody Order or remanded in custody. 21 There are currently no declared places built in WA 22 In WA available detention centres are Banksia Hill Detention Centre or Rangeview Remand Centre 15

25 Hospital Orders What is a Hospital Order? A Hospital Order is an order made by a Court that you must be sent to a hospital for a psychiatric assessment. It is the present policy of the WA government that an assessment of a person under a Hospital Order must be undertaken at the Frankland Centre. A Hospital Order can only be made if: you have been refused bail; AND the Magistrate or Judge suspects on reasonable grounds that: - you have a mental illness that requires treatment; AND - this treatment is required to protect your (or someone else s) health or safety, or to prevent you causing serious damage to property; AND - you have refused treatment or your illness stops you being able to agree to treatment, BUT a Hospital Order cannot be made if you are an involuntary patient (either in hospital or on leave from hospital or on a Community Treatment Order). 23 Given that the Court is prohibited from making a Hospital Order if you are an involuntary patient. If you are: charged with an offence; AND you are on a Community Treatment Order or on Leave from an Authorised Hospital; AND you believe that bail might not be granted, you should speak to your treating psychiatrist about whether or not he or she wants to revoke your Community Treatment Order or withdraw your leave of absence, and admit/readmit you to hospital before your first appearance. If the Court does not grant you bail, the Court will be required to send you to prison if you are an involuntary patient. Often, the Court will ask that a mental health nurse (when one is available to the Court) examine you before deciding whether or not to make you subject to a Hospital Order. 23 s 5(5) Criminal Law (Mentally Impaired Accused) Act 1996 (WA) 16

26 What will happen to me under a Hospital Order? While you are detained under a Hospital Order, you must be assessed by a qualified psychiatrist, who will decide whether or not you should be made an involuntary patient detained in an authorised hospital. A psychiatrist has the power to make you an involuntary patient detained in an authorised hospital if he or she is satisfied that: you have a mental illness that requires treatment; AND you need treatment to protect your own health and safety (this includes your financial safety and your reputation), or the safety of other people or to prevent serious damage to property; AND you have refused treatment or, because of the nature of your illness you cannot agree to treatment; AND adequate treatment cannot be provided to you in another place, which is less restrictive of your freedom. What happens when my Hospital Order ends? Your Hospital Order cannot last for more than seven (7) days. After seven (7) days (or less) you must be returned to Court (or you might appear in Court by video link from your hospital or be excused from appearing if you are too ill to appear) where the Court will decide what orders to make. If you have been made an involuntary patient after being assessed by a psychiatrist, you will stay in or be returned to the psychiatric hospital, rather than being detained in prison. If you are refused bail and you have not been made an involuntary patient after being assessed by a psychiatrist, you will be taken to prison. This is called being remanded in custody. You will stay in custody in the prison at least until your next Court appearance. What are my rights under a Hospital Order? While you are detained under a Hospital Order you have the right to be: received into an authorised hospital for examination within seven (7) days of the referral being made; 24 assessed by a psychiatrist; and brought before the Court on the date set by the judicial officer which must not be more than seven (7) days after the date on which the Hospital Order was made s 36 (2) Mental Health Act 1996 (WA) 25 s 36 (1)(b) Mental Health Act 1996 (WA) 17

27 Custody Orders What is a Custody Order? A Custody Order can be made when you have been found by a Court: to be mentally unfit to stand trial; or not guilty of the offence/crime you are charged with by reason of your unsound mind at the time that the offence/crime was committed. Making you subject to a Custody Order means that you will be kept in an authorised hospital, a declared place, a detention centre (if you are a young offender) or a prison, until you are released by an order of the Governor. There is no time limit to a Custody Order in WA it means indefinite detention at the Governor s pleasure. When can I raise the issue of being mentally unfit to stand trial? The issue of whether or not you are mentally fit to stand trial may be raised at any time before or during your trial by the Court, the prosecutor, you or your lawyer, 26 and can be raised more than once. What happens if I am found mentally unfit to stand trial? Summary Offences (Magistrates Court) If the Court is satisfied that you will not become well enough to stand trial within six (6) months of finding that you are mentally unfit to stand trial, 27 the Court must make an order dismissing the charge without deciding your guilt, and either release you or make you subject to a Custody Order. 28 If the Court is not satisfied that you will be well enough to stand trial within six (6) months, the Magistrate may adjourn your hearing for up to six (6) months. 29 If at any time during or at the end of the six (6) months the Court finds you are not well enough to stand trial, the Court must make an order dismissing the charge without deciding your guilt and either release you or make you subject to a Custody Order s 11(1) Criminal Law (Mentally Impaired Accused) Act 1996 (WA) 27 s 16(2)(a) Criminal Law (Mentally Impaired Accused) Act 1996 (WA) 28 s 16(5) Criminal Law (Mentally Impaired Accused) Act 1996 (WA) 29 s 16(3) Criminal Law (Mentally Impaired Accused) Act 1996 (WA) 30 s 16(4) and s 16(5) Criminal Law (Mentally Impaired Accused) Act 1996 (WA) 18

28 If an order is made dismissing your charge(s) you cannot again be charged or tried again for that offence. 31 If you have been found mentally unfit to stand trial, the Magistrate can make a Custody Order only if the offence you have been charged with is one for which you could have been sentenced to a term of imprisonment. 32 The Magistrate must take note of the following facts when deciding whether or not to make you subject to a MIA Custody Order: 33 the strength of the evidence against you; AND the nature and circumstances of the offence you are charged with; AND your character, past history, age, health and mental condition; AND the public interest. If a Magistrate (including where a Magistrate has heard an indictable offence) 34 orders you to be released or orders you to be detained under a Custody Order because you are not well enough to stand trial you cannot again be charged or tried for the offence. 35 Indictable Offences (Supreme Court and District Court) If the Judge is satisfied that you will not become well enough to stand trial within six (6) months of finding that you are mentally unfit, 36 the Judge must make an order dismissing the charge without deciding your guilt, and either release you or make a Custody Order. 37 If the Judge is not satisfied that you will be well enough to stand trial within six (6) months, the Judge may adjourn your hearing for up to six (6) months. 38 If at any time, during or at the end of the six (6) months, the Court finds that you are not well enough to stand trial, the Court must make an order dismissing the charge without deciding your guilt and either release you or make a Custody Order s 16(8) Criminal Law (Mentally Impaired Accused) Act 1996 (WA) 32 s 16(6) Criminal Law (Mentally Impaired Accused) Act 1996 (WA) 33 s 16(6) Criminal Law (Mentally Impaired Accused) Act 1996 (WA) 34 s 16(1) Criminal Law (Mentally Impaired Accused) Act 1996 (WA) 35 s 16(8) Criminal Law (Mentally Impaired Accused) Act 1996 (WA) 36 s 19(1)(a) Criminal Law (Mentally Impaired Accused) Act 1996 (WA) 37 s 19(4) Criminal Law (Mentally Impaired Accused) Act 1996 (WA) 38 s 19(2) Criminal Law (Mentally Impaired Accused) Act 1996 (WA) 39 s 19(3) and s 19(4) Criminal Law (Mentally Impaired Accused) Act 1996 (WA) 19

29 If an order is made by a Judge in the District or Supreme Courts dismissing your charge(s), you may be formally charged and tried for the offence when you are later found fit to stand trial. 40 If you have been found mentally unfit to stand trial, the Judge can make a Custody Order only if the offence you have been charged with is one for which you can be sentenced to a term of imprisonment. 41 The Judge must take note of the following when deciding whether or not to make a Custody Order: 42 the strength of the evidence against you; AND the nature and circumstances of the offence you are charged with; AND your character, past history, age, health and mental condition; AND the public interest. The Court must be satisfied that you will not become well enough to stand trial within six (6) months of making the finding that you are mentally unfit. If the Court is not satisfied that you will be well enough to stand trial within six (6) months, the Court may adjourn your hearing for up to six (6) months after making the finding. If your hearing is adjourned, after six (6) months the Court must either release you or make a Custody Order. If a Judge in the District or Supreme Courts orders that you are to be released or orders you to be detained under a Custody Order because you are not well enough to stand trial, you may be formally charged and tried for that crime when you are later found to be fit to stand trial 43 When can I be found not guilty by reason of my unsound mind? You may be found not guilty by reason of unsound mind if: you are fit to stand trial, BUT at the time you committed the offence, you were suffering from a mental impairment, which meant that you could not: 40 s 19(7) Criminal Law (Mentally Impaired Accused) Act 1996 (WA) 41 s 19(5) Criminal Law (Mentally Impaired Accused) Act 1996 (WA) 42 s 16(6) Criminal Law (Mentally Impaired Accused) Act 1996 (WA) 43 s 19(7) Criminal Law (Mentally Impaired Accused) Act 1996 (WA) 20

30 - understand what you were doing; and/or - control your actions; and/or - know that you should not have done what you were charged with. If you are acquitted of the charges against you on the basis of your unsound mind for offence(s) heard in the Magistrates Court, the Magistrate can make a Custody Order only if he or she is satisfied that it is not safe for you to be released. Given the serious nature of a Custody Order, law reform should be considered that prohibits magistrates from making Custody Orders. For serious crimes identified in a special list in the MIA Act, 44 which are heard in the District or Supreme Courts, the Judge must make a Custody Order if you are acquitted on the basis of your unsound mind of one of the crimes in the special list. What happens if a Custody Order is made against me? If a Custody Order is made against you, the Mentally Impaired Accused Review Board (MIARB) (not your doctor) must decide (within five (5) days) where you will be sent and detained. You will be detained in: an authorised hospital (only if you have a mental illness capable of being treated, treatment is required, you have refused treatment, and treatment can only be satisfactorily provided in a hospital); OR a declared place; 45 OR a detention centre (if you are under 18); OR a prison. 44 Serious offences identified in Schedule 1 Criminal Law (Mentally Impaired Accused) Act 1996 (WA) include: murder; manslaughter; unlawful assault causing death; attempt to murder; disabling in order to commit indictable offence etc; acts intended to cause grievous bodily harm or to resist or prevent arrest; grievous bodily harm; wounding and similar acts; acts or omissions, with intent to harm, causing bodily harm or danger; assaults occasioning bodily harm; assaults with intent; serious assaults; indecent assault; aggravated indecent assault; sexual penetration without consent; aggravated sexual penetration without consent; sexual coercion; aggravated sexual coercion; incapable person: sexual offences against; sexual servitude; conducting business involving sexual servitude; deceptive recruiting for commercial sexual services; kidnapping; deprivation of liberty; stalking committed in circumstances of aggravation; stealing a motor vehicle, aggravated by reckless or dangerous driving; robbery; assault with intent to rob; criminal damage; wilfully lighting a fire or causing a fire to be lit under such circumstances as to be likely to injure or damage a person or property; and dangerous driving causing death, injury etc 45 No declared place has been built in WA 21

31 If you were detained in an authorised hospital when your Custody Order was first made, you will remain there until the MIARB makes its decision. Whether or not you were an involuntary patient at the time of your detention, you are not entitled to be released from the hospital until the MIARB decides that you can be released. 46 If you were not detained in an authorised hospital when your Custody Order was made, you will be detained in prison or a detention centre until the MIARB makes its decision about where you are to be detained. Within eight (8) weeks of the commencement of your Custody Order, the MIARB must review your Custody Order and it must submit a written report to the Attorney General. After that first review, the MIARB must review your Custody Order at least once every twelve (12) months thereafter. The MIARB report must recommend whether or not the Governor should be advised to release you. 47 The MIARB may change the place where you are held on your Custody Order at any time. Who must the MIARB tell that I am on a Custody Order? As soon as practicable after your Custody Order is made, the MIARB must give you a copy of any report they make about you and, on your request, to your lawyer and/or guardian. 48 If the MIARB recommends that the Governor should be advised to release you, the MIARB is required to give a copy of the report to the Commissioner of Police and the Director of Public Prosecutions. 49 The MIARB must give a copy of your release order to you, and on your request to your lawyer and/or your guardian, the Commissioner of Police and the Director of Public Prosecutions. 50 The MIARB is required to notify the Office of the Public Advocate that you are a mentally impaired accused on a Custody Order. 51 The Public Advocate is required to investigate whether or not you need an administrator of your estate; and it can take other actions it considers appropriate, which could include the appointment of a legal representative for you s 25 (3) Criminal Law (Mentally Impaired Accused) Act 1996 (WA) 47 s 33 (3) Criminal Law (Mentally Impaired Accused) Act 1996 (WA) 48 s 34 (1) Criminal Law (Mentally Impaired Accused) Act 1996 (WA) 49 s 34 (2) Criminal Law (Mentally Impaired Accused) Act 1996 (WA) 50 s 36 Criminal Law (Mentally Impaired Accused) Act 1996 (WA) 51 s 98(1) Guardianship and Administration Act 1990 (WA) 52 s 98(2) Guardianship and Administration Act 1990 (WA) 22

32 How does the MIARB decide whether or not the Governor should release me from my Custody Order? In making the decision about whether or not to release you from your Custody Order, the MIARB must take note of the following factors: 1. the degree of risk that your release poses to the personal safety of people generally and/or any particular individual; 2. the likelihood of your compliance with the conditions of your release; 3. the extent to which your mental impairment may improve from treatment, training or any other measure; 4. the likelihood that you can take care of your day to day needs, obtain appropriate treatment and resist serious exploitation; 5. the least restriction of your freedom of choice and movement to protect your health and safety or any other person s health or safety; and 6. any statements received from any victims. The MIARB can recommend a leave of absence (see the Leave of Absence section of this booklet). A valid MIARB order must be signed by two (2) of its members. Can I appeal against a Custody Order made by a Judge or Magistrate? Custody Order made by Magistrate because of an acquittal based on your unsound mind or because you are unfit to stand trial If you are acquitted of a less serious charge on account of your unsound mind or because you are unfit to stand trial, and a Custody Order is made against you, you may apply for review of that decision to the Supreme Court within 28 days of the Order if: the Judge or Magistrate made an error of law or fact, or of both law and fact; the Judge or Magistrate acted without or in excess of the Court s jurisdiction; the Custody Order is excessive, 53 or there has been a miscarriage of justice. 54 The permission of the Supreme Court (called leave ) must be given before the Court will hear your appeal s 8 (1)(a) Criminal Appeals Act 2004 (WA) 54 s 8 (1)(b) Criminal Appeals Act 2004 (WA) 55 s 9 (1) Criminal Appeals Act 2004 (WA) 23