The Criminal Law Consolidation (Mental Impairment) Amendment Act 2017 (SA) amended this area of the law substantially. The amendments:

• limit cases where self-induced intoxication has resulted in mental incompetence;
• provide for matters to be dealt with through fewer reports;
• aim to ensure the paramount consideration for release on licence is the safety of the community; and
• provide for more options for the dispensation of summary and minor indictable matters.

These are cases where a defendant may have been mentally incompetent to commit the offence as charged as a result of mental impairment.

There is a presumption at law that a defendant is mentally competent to commit the offence charged, and if the defence seeks to rebut that presumption, the onus of proof is on the defence, on the balance of probabilities [Criminal Law Consolidation Act 1935 s 269D].

The relevant time is the time of the commission of the offence. If the defendant is charged with an offence that occurred some time ago, at which time they were mentally ill but have since undergone treatment, they may present quite lucidly to the duty solicitor, but may nonetheless be able to pursue a defence of mental incompetence.

As the role of the duty solicitor is limited to referral to more senior legal representation where the question of mental competence has arisen, the following information is only included for the sake of completeness.

Section 269C of the Criminal Law Consolidation Act 1935(SA) provides that a person is mentally incompetent to commit an offence if, at the time of the conduct alleged to give rise to the offence, the person was suffering a mental impairment and in consequence of that mental impairment the defendant:

Sub-section 269C(2) provides that where the trial judge finds, on the balance of probabilities, that the mental impairment at the time of the conduct was substantially caused by self-induced intoxication, the defendant may not be dealt under part 8A, but under part 8 relating to intoxication. Self-induced intoxication includes that resulting from recreational drug use or the combined effect of therapeutic and recreational drug use [ss 269A(2a) and (2b)]. However, sub-section 269C(3) does allow for the court to make an order that a person with a mental impairment caused substantially by self-induced intoxication still be dealt with under the mental impairment provisions of Part 8A of the Act. Such an order would be made when it is in the interests of justice to do so, and after considering whether making such an order would affect public confidence in the administration of justice [see s 269C(3)].

Section 269A of the Act defines “mental impairment” as including a mental illness, an intellectual disability, or a disability or impairment of the mind resulting from senility [see s 269A(1) for definition]. “Mental illness” means a pathological infirmity of the mind (including a temporary condition of short duration) [see s 269A(1) for definition]. In South Australia, a personality disorder is not recognized as a “mental impairment” or "mental illness".

In summary, where the requisite condition exists (that condition being mental impairment) the question raised is whether as a result of that condition at the time of the offence the defendant did not know the nature and quality of the conduct, could not reason about whether the conduct was wrong, or was totally unable to control the conduct. This is a question of fact ultimately decided at trial by the finder of fact (Magistrate, jury or Judge alone).

The Criminal Law Consolidation (Mental Impairment) Amendment Act 2017 (SA) amended this area of the law substantially. Since 27 November 2017, the consequences of a finding of mental incompetence depends somewhat on whether the defendant is charged with summary and minor indictable offences or major indictable offences. The former, less serious offences can now be dealt with under Division 3A, which provides more options for the dispensation of the matter. In either case, the paramount consideration must now be the safety of the community.

In determining whether to release a defendant, either unconditionally or on a licence, the paramount consideration must be to protect the safety of the community [sections 269NA and 269NI].

Summary and minor indictable matters

The possible consequences of a finding of mental incompetence for summary and minor indictable offences are [Criminal Law Consolidation Act 1935 (SA) Division 3A, s 269NB]:

Under section 269P the defendant can apply to the Court at any time during the term of the Division 3A order for a variation of the order.

Major indictable matters

The possible consequences of a finding of mental incompetence for major indictable offences are [Criminal Law Consolidation Act 1935 (SA) Division 4, s 269O]:

In the case of major indictable offences, the Court can only make a supervision order releasing the defendant on conditions of licence once it has obtained at least 1 expert report [see s 269T(2)(a)] and considered the most recently prepared report submitted by the Minister as to the defendant's mental condition, diagnosis, prognosis and treatment plan [see s 269Q and s 269T(b)] and the report on the attitudes of the victim and next of kin [see s 269R and s 269T(2)(c)]. However, where only summary or minor indictable offences are before the Court, it may proceed without ordering an expert report [see Subdivision 3A].

If a defendant who has been released on licence breaches any of the conditions of licence, prosecution can apply to the Court for review of the supervision order under sections 269NDA or 269U of the Act. Having reviewed the circumstances of the breach, including any new reports, the Court has discretion to revoke the order for release on licence and to substitute for it an order committing the defendant to detention, or to vary the existing conditions of licence, or to simply confirm the existing conditions if no variation is necessary.

Where the Court makes a supervision order (as distinct from an order for unconditional release) the specified term (“limiting term”) must not exceed the term of imprisonment that the Court would have imposed if the defendant had been found guilty and sentenced to imprisonment (suspended or to be served) [see s 269O(2)].

Supervision orders are governed by Chapter 2 Part 2 of the Uniform Special Statutory Rules 2022 (SA).

There is a presumption at law that a person is mentally fit to stand trial, and if the defence seeks to rebut that presumption, the onus of proof is on the defence on the balance of probabilities [see Criminal Law Consolidation Act 1935 (SA) s 269I].

The relevant time for determination of whether the defendant is mentally unfit to stand trial is the present. It is concerned with the defendant’s mental state at the time of trial rather than (as is the case with mental incompetence) at the time the offence was committed. A defendant may have been mentally competent at the time the offence was committed, but have since become mentally unfit to stand trial. It is not unusual for an expert to be of the opinion that the defendant was mentally incompetent at the time of the offence and is also mentally unfit to stand trial at the time of trial.

The issue of whether a defendant is fit to stand trial does not arise until the time of trial itself and is therefore not the domain of the duty solicitor. However, the following information is provided for completeness.

Section 269H of the he Criminal Law Consolidation Act 1935 (SA) provides that a person is mentally unfit to stand trial on a charge for an offence if the person’s mental processes are so disordered or impaired that the person is:

Fitness to stand trial raises the questions of whether a defendant can understand:

A defendant need not understand all of the legal formalities, but must be able to follow what is happening in court.

Note that the cause of mental unfitness is not restricted to mental illness, as is the case with mental incompetence. As well as cognitive or intellectual impairments, the cause may be a physical one (eg a deaf and dumb defendant who cannot communicate in sign language and cannot be taught to do so; or a person suffering a physical illness, where the pain itself, or the pain-relieving medication required to control it, so affect the person’s mental processes that the person is unable to meaningfully follow and understand the trial proceedings).

The possible consequences of a finding of unfitness to stand trial are the same as to those relating to mental incompetence to commit the offence, see above.

Where there is expert evidence that a defendant is unfit to stand trial, the Court may adjourn proceedings for up to 12 months if the expert is of the opinion that there is a reasonable possibility that the defendant will regain the necessary capacity within that time. This can be an unfortunate provision from the point of view of the defendant, because if there is no suitable accommodation and mental health support available, he or she may remain in custody during that time. Moreover, that custody may be in the Yatala Labour Prison, the Adelaide Women's Prison or the Adelaide Remand Centre, due to the chronic lack of beds at James Nash House.

Nonetheless, there is provision under s 269X as well as under the Bail Act 1985 (SA), for bail to be granted during the period of the adjournment where there are sufficient community resources and accommodation available to a defendant.

Where a defendant who may be mentally incompetent or mentally unfit has no prospect of being released on bail, the duty solicitor should ask the Court to make an order pursuant to s 269X(1)(b), which provides that a defendant is to be committed to custody, in which case the defendant will be detained as if the defendant had been remanded in custody awaiting trial or sentence. This is excluding any period that a defendant is detained as an involuntary inpatient at a treatment centre under the Mental Health Act 2009 (SA). The defendant will be in the custody of the Chief Executive (as per Correctional Services Act 1982 (SA)), who may give such directions as to the custody, supervision and care of the defendant as they consider appropriate [s 269X(3)]. If at any time during the detention, the designated officer is satisfied that the defendant is not being detained in an appropriate form of custody, the designated officer may determine an appropriate form of custody and that determination is sufficient authorisation for the defendant in that alternative form of custody [ s 269X(5)]. A designated officer is the office of Clinical Director, Forensic Mental Health Services (Department of Health and Wellbeing), and must consult with the CE and take into account any representation made to the designated officer by the CE in determining an appropriate form of custody [Criminal Law Consolidation (General) Regulations 2021 (SA) reg 15].

As with defendants who are subject to a supervision order on the grounds of mental incompetence, mentally unfit defendants who are either committed to detention or released on conditions of licence can apply to the Court at any time during the limiting term to vary the conditions of licence [see s 269P], and prosecution can apply to the Court at any time for review of the supervision order under s 269U where there are allegations that the defendant has breached, or is at risk of breaching, any condition of the licence.

One aspect of fitness to stand trial is fitness to instruct. The question of whether a person is fit to instruct rationally may arise for the duty solicitor, particularly in relation to persons in custody. Defendants who have managed to attend the Court themselves at the appropriate time may be reasonably cognisant of their circumstances, but people arrested and brought to the Court from custody may be in a disturbed condition due to the stress of incarceration and may, at least temporarily, lack competence to instruct. For further information see Role of Duty Solicitor chapter.