WA Introduces Law to Improve Criminal Law Treatment of Mentally Impaired Accused

Thursday 20 March 2014 @ 11.36 a.m. | Crime | Judiciary, Legal Profession & Procedure

On Wednesday (19 March 2014) the Criminal Law (Mentally Impaired Accused) Amendment Bill 2014 was introduced into the Western Australian Legislative Assembly by the Shadow Attorney General Mr J R Quigley (the Shadow Attorney). According to the Shadow Attorney's second reading speech, the proposed law is intended to "correct a deficiency in the head legislation, the Criminal Law (Mentally Impaired Accused) Act 1996 - a deficiency that has resulted in many injustices in Western Australia".

Essentially, the amendments proposed by the Bill will require the magistrates and judges making a custody order in respect of an accused who has appeared before them charged with an offence but whom they have found to be mentally unfit to plead or who has pleaded not guilty and been acquitted on the basis of insanity, to require the sentencing judge to fix a finite term to the custody order, the length of which would be equivalent to the period of imprisonment that the court would have imposed for the alleged offence if the accused had been fit to plead and convicted or if the accused had not been acquitted on the grounds of insanity.

Background to the Proposed Law

It was argued by the Shadow Attorney in the second reading of the Bill that the justification for the proposed legislation was that:

". . . the absence of a fixed period or limiting term has caused many injustices, because people who have been put before the court and found to be mentally unfit or acquitted on the grounds of mental unfitness, have then been made the subject of custody orders of indeterminate length, which has seen them held in prison for many years longer than they would have ever been imprisoned had they been convicted of the offence".

There have been several well documented cases of injustice arising as a result of the current legal position for mentally impaired accused, the most documented and recent one being the case of Rosie Anne Fulton which received a lot of publicity on the ABC’s Lateline program. Fulton, a suffer of Foetal Alcohol Syndrome, a mentally impaired person, was presented before a Kalgoorlie court charged with a number of traffic offences. The court concluded that Fulton was mentally unfit to plead, and consequently the court made a custody order of indeterminate length. As was highlighted on national television, Fulton had been held in custody in a WA prison for over 18 months without ever having been convicted of any offence. Had Fulton been fit to plead guilty she would most likely not have received a sentence of imprisonment at all.

The Fulton case sparked wide public comment, as well as comment from the Chief Justice of WA, who as was reported in The Australian as along with other members of the judiciary,  supporting the proposition that custody orders made for mentally unfit people accused of crimes should not exceed in length the period that it would have been appropriate for the person to spend in prison had they been mentally fit and convicted of the offences charged.

The judicial criticism also highlighted another problem with the present law around custody orders of indeterminate length, namely, that lawyers are loath to bring to the court’s attention their client’s mental unfitness because if the accused person raises mental unfitness, the likelihood is that they will be given a custody order of indeterminate length and could languish in prison for years.

Matters not Affected by the Proposed Changes

In his presentation of the Bill, the Shadow Attorney said in his second reading speech:

"The answer to the community’s concerns about the ongoing conduct of mentally unfit accused is therefore secured under the provisions of the Mental Health Act (WA), and not by using the prisons and the criminal justice system to 'warehouse' the mentally ill in our prison system".

To support this, he explains that the changes proposed by the Bill, do not impact upon the court’s capacity to make a hospital order under section 6 of the principal legislation, nor the capacity under provisions of section 6 requiring a person to be transferred to an authorised hospital should they become categorised as an involuntary patient during the term of their custody order.

Further, clause 15 of the amending Bill preserves the position in relation to people who have been released from detention under a custody order, either at the expiration of the custody order or who are enjoying release on conditions, so they can still be declared an involuntary patient at any time; that is, at the expiration of a custody order that has been limited to a certain period of time under these amendments, if a person by reason of their mental infirmity is to be regarded either as a danger to themselves or the public, there are provisions within the Mental Health Act (WA) that provide a person can be taken into custody as an involuntary patient.

Public Response

In a recent article posted to the SBS website, it is reported that Graeme Innes, the Disability Commissioner with the Human Rights Commission, says he is aware of many similar cases to the one of Rosie Anne Fulton, mentioned above, and is calling for an urgent audit of people with intellectual disabilities who are in jail, and is further quoted as saying:

"We were informally advised that there are 20 to 30 people, mainly Aboriginal people, with a disability, who have not been convicted of a crime yet who spend time in prison in Australia. Rosie Anne Fulton is the second of those that we're specifically aware of. Marlin Noble is the first in WA and he spent ten years in prison without being convicted of a crime so we think this is a very serious situation."

Further, the Aboriginal Disability Justice Campaign's Patrick McGee is quoted as saying that people with an intellectual disability often end up in jail because "laws are structured to allow it to happen", saying also:

"We have legislation: it's called Mental Impairment Legislation. When a person with a cognitive impairment comes before court, and the court is aware that there's something amiss with their cognitive status, that triggers an assessment. If the assessment finds that they in fact have an intellectual disability or an acquired brain injury or Foetal Alcohol Syndrome, what happens then is that there is a court definition that they cannot plead; that is, they do not understand whether they are guilty or innocent, and an alternative pathway is provided. That's what happened to Rosie Anne in Western Australia when she was charged with those minor offences. And unfortunately, Western Australia, like the Northern Territory, does not have any resources, that is, accommodation, where treatment or significant benefit is provided, and so she had to go to prison."

In fact, the position results that judges are in a situation where they have to send someone to jail because there are no other options. The article also observes that most of the people with intellectual disabilities who are in jail are in WA and the Northern Territory.

What Next

The legislation is still in its early stages and most likely will take some time to pass through its remaining stages.

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