Managing mental health issues is a difficult and complex task. Often people come to the attention of the police and they may end up being charged with offences such as public nuisance, assaulting police, failing to comply with directions or other charges.
If you, or a loved one, has a mental illness and are charged with a criminal offence, it is important to obtain legal advice from an experienced criminal lawyer, as there are means of having charges dismissed under the Mental Health Act 2016 (‘MHA’).
More serious offences generally need to be heard in the District or Supreme Court and where there are mental health issues involved, they are referred to the Mental Health Court.
Simple offences can be dismissed by a Magistrate. In general terms, simple offences are charges that are resolved in the Magistrates Court.
Under the MHA, a Magistrate may dismiss a simple offence if reasonably satisfied on the balance of probabilities that the defendant:
See below under ‘Powers of the court upon dismissal’ for further court powers if a Magistrate dismisses the charges based on mental health.
‘Unsoundness of mind’ is defined as a state of mental illness such that the person charged was completely deprived of the capacity to:
In practical terms, this means that the person charged will have to obtain a psychiatric report – either privately or through the ‘Court Liaison Service’ – stating that they were of unsound mind at the time they committed the offence. On the basis of such a report, the person’s lawyer then submits to the Magistrate that the charge should be dismissed.
Fitness for trial is not defined by the MHA or the Criminal Code, however, the case law indicates that to be fit for trial, a person must be capable of understanding the proceedings at their trial so as to be able to make a proper defence.
The decision involves consideration of whether the person:
Once again, in order to submit for the discontinuation of a simple offence on this basis, an expert report will be necessary. Anyone charged with an offence can discuss with their lawyer how best to obtain a report.
If a Magistrate dismisses a charge under the MHA, the person is discharged and the criminal process ends.
The court does, however, have the power to make an ‘examination order’ which authorises a doctor to examine the person, without the person’s consent, to decide whether to:
The examination order may also direct a person to attend an inpatient health unit. This is because the purpose of the MHA is to divert people with mental illness from the criminal justice system while at the same time, protecting the public.
If you, or a loved one, are charged with a criminal offence and there are mental health issues, you should consult an experienced criminal practitioner as soon as possible.
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This article is of a general nature and should not be relied upon as legal advice. If you require further information, advice or assistance for your specific circumstances, please contact Gilshenan & Luton, Criminal Lawyers Brisbane and Sunshine Coast, Queensland.