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Prosecution Guidelines

Chapter 8. Mental illness

Issues regarding mental illness may arise at any stage in criminal proceedings.

Published 29 March 2021

8.1 Introduction

Issues regarding mental illness may arise at any stage in criminal proceedings. The purpose of this Chapter is to set out some of the different ways in which mental illness may be considered in commencing and conducting a prosecution.

8.2 The decision to prosecutre

Guideline 1.2 sets out some of the factors that may be taken into account in determining whether to prosecute. These include the accused’s mental health, alongside factors such as the seriousness of the offence. Ordinarily, mentally disordered people should not be prosecuted for trivial offences that pose no threat to the community.

8.3 Diversion of matters dealt with in the Local Court or Children’s Court

Where the issue of diversion from the criminal justice system to the health system is raised in the Local Court or the Children’ s Court, the prosecutor should assist the court with submissions regarding the nature and circumstances of the offence, the nature and extent of the accused’s condition and the availability of relevant health services.

8.4 Fitness and special hearings

A fitness hearing may be conducted in the District Court or the Supreme Court to determine whether the accused is fit to be tried. The question of whether the accused is fit to be tried is usually raised by the defence. However, where there is an obvious fitness issue and it is not raised by the defence, it should be raised by the prosecution. The prosecutor may seek an independent medical assessment.

In determining whether a matter should proceed to special hearing, the principles regarding the decision to prosecute in Guideline 1.2, as well as the requirement for consultation with the victim and officer-in-charge, as set out in Chapter 5: Victims and witnesses, apply.

Consideration should also be given to whether there has been any change in the available evidence since the finding of unfitness and whether, and to what extent, the accused will have been detained by the time a special hearing would be heard.

8.5 Agreeing to the entry of a special verdict

There may be matters where the availability of a special verdict is supported by experts retained by both the defence and the prosecution. Nevertheless, the approval of the Director or a Deputy Director should be obtained prior to a prosecutor agreeing that a court should enter a special verdict.