The duty solicitor does not act in these matters beyond seeking an adjournment or remand or applying for bail, given the complex nature of Commonwealth offences and sentencing provisions. For reference only, the relevant legislative provisions affecting mental health issues are as follows:
A person who is charged before a court of summary jurisdiction with Commonwealth offences and who is suffering from a mental illness or impairment at the time the matter comes before the Court for determination may be dealt with under section 20QB of the Crimes Act 1914 (Cth). For example, the Court has power to dismiss the charge and discharge the person if it considers this would be more appropriate than dealing with a defendant otherwise according to law [see s 20BQ].
In more serious summary court matters where the Court is not persuaded that it is appropriate for the defendant to be dealt with under s 20BQ of the Crimes Act 1914 (Cth), questions of mental competence to commit the offence and mental fitness to stand trial are first determined under the relevant provisions of state legislation (Criminal Law Consolidation Act 1935 pt 8A - see above) and, where the defendant is found to be mentally incompetent or mentally unfit, subsequent orders for disposition come under the relevant Commonwealth provisions [see Crimes Act 1914 (Cth) ss 20BS-20Y].
Sectyion 7.3 of the Criminal Code Act 1995 (Cth) also sets out the Commonwealth provisions regarding the defence of mental impairment. These are very similar to the provisions of part 8A of the Criminal Law Consolidation Act 1935. The significant differences are that:
- under the Criminal Code Act 1995 (Cth), the prosecution can only raise the issue of mental impairment if the Court gives leave; and
- under the Criminal Code Act 1995 (Cth) “mental impairment” is defined to include “senility, intellectual disability, mental illness, brain damage and severe personality disorder”.
Unfitness to be tried [see Crimes Act 1914 (Cth) ss 20B - 20BH]
Acquittal because of mental illness [see ss 20BJ - 20BP for procedure on indictment]
Sentencing alternatives [see Crimes Act 1914 (Cth) ss 20BS - 20BY]