The majority of people with mental health impairment (such as an anxiety disorder, clinical depression, bipolar disorder or psychotic disorder) and/or cognitive impairment (such as intellectual disability, dementia or acquired brain injury) do not commit crimes. In fact, people with these conditions are more likely to be victim of crime themselves.
Please note that the term impairment is used in this section because it is the term used in the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW).
However, there are times when a person with a mental health impairment and/or cognitive impairment comes into contact with the criminal justice system. This section of the Manual provides you with information about how criminal cases are dealt with in the courts in these situations.
A person with a mental health impairment and/or cognitive impairment who comes into contact with the criminal justice system needs a different legal response from people who commit a crime intentionally.
When the criminal offence is a more serious criminal offence, they will generally be dealt with in the higher courts such as the District or Supreme Court. This section of the Manual describes how those higher courts can deal with mental illness in relation to crime. Less serious offences are dealt with by the Local Courts.
If they are found unfit to stand trial, or the act was proven but they are not criminally responsible because of a mental health impairment and/or cognitive impairment, they will be referred to the Mental Health Review Tribunal. The person will become a forensic patient in NSW. Click here for more information.
A correctional patient is a person in custody who has become mentally ill, needs treatment in a mental health facility and has been transferred to a mental health facility. For more about correctional patients, click here.
This section of the Manual has information about:
There are a number of different courts that deal with criminal cases. Summary (less serious) crimes are dealt with in the Local Courts. The Local Court deals with most criminal matters.
Indictable (more serious) crimes are dealt with by two higher courts, the District Court and the Supreme Court. The Supreme Court deals with the most serious crimes. If you are facing criminal charges in the District or Supreme Court, and you plead not guilty, there would normally be a jury present as well as a judge.
Decisions by the Local Court in criminal cases can be appealed to the District Court. Similarly, decisions of the District Court can be appealed to the Supreme Court. The Court of Criminal Appeal hears appeals from the District and Supreme Courts. The High Court of Australia is the highest court of appeal for all New South Wales criminal proceedings, but it can be difficult to get permission to appeal to the High Court.
The Children’s Court of NSW deals with children (aged younger than 18 years old) charged with less serious criminal offences. Children charged with more serious crimes will be dealt with in the Children’s Court of NSW, District Court or Supreme Court depending on the offence and their age when they allegedly committed the offence.
Local Courts deal with the less serious crimes, including traffic offences, and deal with the early stage of trials of more serious crimes.
Local Courts also deal with cases other than criminal cases. For example, they deal with Apprehended Violence Orders, and some civil law matters, such as small debt claims.
Although Local Courts deal with less serious crimes, they are still very formal compared to tribunals such as the Mental Health Review Tribunal.
Each Local Court is controlled by a magistrate, who is the judge in the Local Court. There are formalities (‘etiquette’) in the Local Court that you can read about on the next section.
When you are in court, you should call the magistrate ‘Your Honour’.
The magistrate and other court officers, such as the prosecutor, are likely to call you by your formal title and family name, for example, ‘Mr Jones’ or ‘Mrs Palaos’ or ‘Ms Ng’.
It is also usual for everyone to stand when the magistrate comes into the courtroom and when he or she leaves the courtroom. This is to show respect for the customs of the court. You will also be expected (and asked) to stand if the magistrate speaks directly to you in the court. For more information about court etiquette, click here.
If you have never been to court before, try to go along to your Local Court before your case is being dealt with so you can see what goes on. For a list of where the Local Courts are, click here.
The next page has more about how the Local Courts deal with criminal cases, click here to go to the section.
Local Courts deal with criminal cases in two ways, depending on the seriousness of the crime.
If the crime is less serious, all of the court hearings will take place in the Local Court. You can be found not guilty or found guilty and given a sentence (a penalty). There are no juries in criminal hearings in the Local Court.
If you are alleged (suspected) to have committed a serious crime that will, if you plead not guilty, have to be dealt with in the District or Supreme Court you will first be taken to a Local Court to be formally charged. The Local Court magistrate may also have to decide whether you should be given bail (released back into the community usually on certain conditions) or whether you will have to stay in custody. If you are given bail, you may have to go back to the Local Court and appear before the magistrate several times. This may happen even if you plead not guilty before your case gets sent to the District Court or Supreme Court where a different judge will hear your case.
Sometimes, depending on the crime you are charged with, you can decide whether to have the case dealt with by the Local Court or have it sent to a higher court. In this situation, if you plead not guilty, the trial will have a jury if you plead not guilty. If you plead guilty, you will have a hearing by a single judge who will decide what sentence will be given to you. The Local Court can take into account if you have a mental illness and are facing criminal charges. To find out more, next part of this section.
Mental illness is dealt with in a different way in the Local Court compared to the District and Supreme Courts.
The higher courts can decide that the act is proven but you are not criminally responsible because of a mental health impairment and/or a cognitive impairment or are ‘unfit to stand trial’, and particular processes flow from these decisions.
With criminal cases in the Local Court, the magistrate can ‘divert’ people with mental health issues out of the criminal justice system in two ways.
Firstly, the magistrate can order them to return to the community with or without conditions (for example, to seek appropriate treatment) or into the care of a responsible person. The magistrate makes this sort of order after they are provided with a treatment plan that has been designed for you by a suitably qualified person, who is usually a health care professional. For more information about these orders, click here.
Secondly, the Local Court magistrate could also order that you are referred to a hospital for further assessment if you are considered a mentally ill person or mentally disordered person under the Mental Health Act 2007 (NSW). The magistrate may order that you be discharged into the care of a responsible person on conditions or unconditionally. The Court also has the power to make a Community Treatment Order if it is provided with a treatment plan by a public mental health facility.
If you are ordered to go to a public mental health facility for assessment, and as a result of that assessment, you can become an involuntary patient or be returned to the Local Court if you are not mentally ill under the Mental Health Act 2007 (NSW). For more about these orders, click here.
If your criminal matter proceeds, you can still give the magistrate the details of your mental illness as part of what is called a ‘plea in mitigation’ (that is, the things you want the magistrate to consider before you are sentenced to reduce your sentence). This can include reports from health care professionals and a range of community mental health services. This sort of information might also be included in a pre-sentence report (usually prepared by the Community Corrections Offices (previously known as the Probation and Parole Service), which is sometimes requested by the magistrate before you are sentenced. The Court can also take a range of other issues into account before sentencing you, some of which may be related to your mental illness, for example, your social circumstances. You should discuss anything you think may be relevant with your lawyer so that they are able to put any relevant information before the Court.
The Local Court can make diversionary orders so that people with a mental health impairment or cognitive impairment charged with certain offences are not convicted (found guilty). Instead, they are ‘diverted’ out of the criminal justice system and into the care, treatment, support and supervision they need.
A magistrate can order that you return to the community:
If you agree to the conditions, no conviction is recorded. This order used to be called a ‘Section 32 order’.
The magistrate can make this kind of order if they decide it would be more appropriate for you to be diverted out of the criminal justice system. Before making this kind of order, the magistrate will consider factors such as:
You can ask for this diversionary order at any time during court proceedings, even before you need to tell the court whether you think you are guilty or not guilty. You should try to have a lawyer to represent you if you want to make this sort of application. For information about how to find an appropriate lawyer, click here.
The lawyer is unlikely to prepare a treatment plan. They are more likely to arrange for the plan to be prepared by a mental health professional.
A treatment plan includes the programs, services or treatments or other support that you need to address your mental health impairment or cognitive impairment. It could include the following information:
If the magistrate is satisfied that the treatment plan is appropriate, that you understand the plan, and are willing to keep to the plan, he or she will discharge you (let you go) on the condition that you keep to the plan. You should ask your lawyer for a copy of the plan as soon as possible.
If you don’t keep to the plan in the twelve (12) months after the order is made, this will be treated as a breach of the court order. You can be brought back to court and be dealt with for the original criminal offence you were charged with. If this happens, it may be difficult for you or your lawyer to convince the magistrate to continue with the order. If the magistrate won’t let the order continue, he or she will then hold a hearing into the criminal charge. If you are found guilty, you could be fined, put on a bond or sent to jail to serve a period of time in jail for the offence.
Sometimes, a Local Court magistrate may consider a someone a mentally ill person or mentally disordered person under the Mental Health Act 2007 (NSW). In this situation, the magistrate can divert them out of the criminal justice system by ordering that they have a mental health assessment. This order used to be called a ‘Section 33 order’.
If you are in this situation, the Local Court magistrate can order you to be taken to a public mental health facility for an assessment. This is not a voluntary process and you can be taken for the assessment even if you don’t want to go.
When a hospital assesses you under this kind of order, the ordinary assessment processes under the Mental Health Act 2007 (NSW) apply and your rights and obligations are exactly the same.
If at least two doctors (one of whom must be a psychiatrist) decide that you are not mentally ill or mentally disordered under the Mental Health Act 2007 (NSW), then you will be sent back to the Local Court and again have to appear before a magistrate.
The magistrate may also make a Community Treatment Order, which involves compulsory treatment in the community. For more about Community Treatment Orders, click here.
If you are in custody, the Justice Health Court Liaison Service (found at the larger Local Courts) can help you to get the information you need to give to the magistrate to convince him or her to this type of order.
A forensic patient is someone who has been charged with a serious criminal offence and has been found:
If you are a forensic patient, the Mental Health Review Tribunal will review your situation regularly.
Forensic patients may be detained in forensic facilities, or they may also be released into the community, under supervision and reviewed by the Mental Health Review Tribunal.
At any time after the police charge a person with a criminal offence, questions may be raised about whether a person is ‘fit to be tried’ for committing that offence. This is not about the accused person’s physical fitness. ‘Fitness to be tried’ is about a person’s mental or intellectual capacity to participate in a criminal justice process.
Fitness will depend on many factors, such as a person’s ability to understand what will happen in the court process, to communicate their version of what happened and to tell their legal representatives how they want to be represented. Fitness to be tried may be affected by a person’s mental health impairment.
The question of whether or not you are fit to be tried is usually raised when you go before a magistrate in a Local Court in order to be charged with an offence. However, this issue can be raised at any time either by the prosecuting lawyer or by your lawyer, or by the court itself. If there is a question about whether or not you are fit to be tried, a special hearing (court proceeding) will be held before a judge.
The court will conduct this part of the criminal process as an inquiry, rather than as an adversarial process. If the judge decides you are fit to be tried, an ordinary criminal trial will then take place.
The judge may decide that you are not fit to be tried but you may become fit to stand trial within twelve (12) months. In this situation, you may be able to be released from custody on bail and your case will be reviewed by the Mental Health Review Tribunal. If you want to be released on bail, you should tell your solicitor before the court hearing so an application can be made. For more about this, click here.
If the Judge decides that you are unfit to stand trial and you will never become fit, you will be tried as soon as possible in a special hearing after the Director of Public Prosecutions approves. For example, sometimes a person with a cognitive impairment that cannot be treated, such as dementia, may not become fit to stand trial.
If the court decides that you are unfit to stand trial, they will then decide whether you might become fit within twelve (12) months.
If the course decides that you will not become fit within twelve (12) months, you will have a special hearing. Click here for more information.
If the court decides that you might become fit within this timeframe, the court will refer your matter to the Mental Health Review Tribunal.
The Tribunal will consider if you are likely to become fit to stand trial in the next twelve (12) months after the court date. The Tribunal will consider the reasons why you were not fit to be tried at the time that the court made its decision and decides whether your condition is likely to change. For example, you could have been unfit to stand trial because of a relapse of a serious mental illness, but the medication and treatment you have received since that time means that your mental health has stabilised. In these cases, you may be likely to become fit to stand trial.
If the Tribunal decides that you are fit to stand trial, you will go straight to a criminal trial if the Department of Public Prosecution decides to continue with the trial.
If the Tribunal decides that you will not become fit to be tried within twelve (12) months, you will not go to an ordinary criminal trial. The Mental Health Review Tribunal notifies the Director of Public Prosecutions and the court, who will decide whether or not to take your matter further. If they do, the court will hold a special hearing to decide on whether or not you are guilty. For more about special hearings, click here.
Where a court and the Mental Health Review Tribunal have decided you are not fit to be tried, a criminal conviction is not recorded. This is the case even if you are found to have committed the offence at a special hearing.
Special hearings are similar to criminal trials that are held by the District Court or Supreme Court when a person is unfit to stand trial. The court processes can be modified to help the person participate.
Special hearings are usually held by a judge, unless an election for a jury is made by the accused, a legal practitioner representing the accused, or the prosecutor.
The court may allow the person who is unfit to stand trial not to appear in the special hearing if the court thinks it is appropriate in the circumstances and the person or their lawyer agrees.
If you have to go to a special hearing before a court, a lawyer must represent you, unless you decide you don’t want one. Your lawyer will be able to give you advice about whether or not you should ask to have a jury involved in the special hearing.
A special hearing is not recorded as a criminal trial, and one of four verdicts (legal decisions) can result from a special hearing:
If you are found not guilty, you will be acquitted (allowed to go free), just like in an ordinary criminal trial.
A person with a mental health impairment and/or cognitive impairment may be found to have committed an act but did have the mental state to be criminal responsible for their actions. People in this situation may need treatment, supervision and care. The name of the verdict (legal decision) of ‘act proven but not criminally responsible’ because of a mental health impairment and/or cognitive impairment reflects this complex situation.
If this is the verdict of the court as a result of the special hearing, you will be held as a forensic patient in a forensic hospital or facility, unless you are given conditional or unconditional release to live in the community.
This verdict replaces a previous verdict of ‘not guilty by reason of mental illness.
A limiting term will be given in the special hearing if it is found, on the limited evidence available, that the person committed the offence or an alternative offence. The court will decide whether a sentence of imprisonment would have been given if the hearing had been a normal trial.
If so, the court will give “a limiting term” or other penalty, which must be the best estimate of what the court would have imposed if there had been a normal trial and conviction.
If the court decides that it would not have imposed a sentence of imprisonment, the court may impose any other penalty or make any order it might have imposed or made if the defendant had been found guilty of the offence in an ordinary trial of criminal proceedings.
In deciding on a limiting term or other penalty, the court must take into account that, because of the defendant’s mental health impairment and/or cognitive impairment, the person may not be able to demonstrate mitigating factors for sentencing (factors that would lead the judge to give a shorter sentence) or make a guilty plea so that they can receive a discount on their sentence. The court may apply a discount that would apply to their sentence. The court must take into account periods of the defendant’s custody or detention related to the offence.
If you are given a limiting term, you will become a forensic patient and you will regularly be reviewed by the Mental Health Review Tribunal.
Limiting terms do not have a parole and non-parole period. Limiting terms are an estimate of the whole sentence which would have been imposed.
At the end of a limiting term, you will no longer be a forensic patient and you will be released. However, if you are still a mentally ill person under the Mental Health Act 2007 (NSW), the Tribunal may make you an involuntary patient and deal with you in the same way as any other person who is mentally ill under that Act.
At the end of a limiting term, the Minister for Mental Health or the Attorney General also have the power to seek an extension of forensic status. If this happens, this matter will be heard in the Supreme Court. If an extension is granted, you will continue to be a forensic patient.
The Mental Health Review Tribunal review forensic patients every six (6) months. At these reviews, the Tribunal will consider factors such as whether the person has a mental illness and whether care, treatment and control are necessary to protect them or others from serious harm.
The Tribunal will be made up of three (3) members:
Mental Health Review Tribunal will normally read reports and hear perspectives from the forensic patient and their treating psychiatrist. Depending on the forensic patient’s situation, the Mental Health Review Tribunal may also hear information from other health professionals such as psychologists or nurses; the forensic patient’s family, the Minister for Mental Health, Attorney General and/or registered victims.
When the Tribunal reviews a forensic patient’s case, it can make orders about their:
After a review, the Tribunal also has the power to make a request of the Ministry of Health, the Commissioner of Corrective Services, Department of Communities and Justice and any other agency responsible for the detention, care or treatment of a forensic or correctional patient. Those agencies must try their best to respond to a request from the Tribunal.
The review period can be extended to twelve (12) months if there have not been changes since the last review, need to change existing orders and earlier reviews may be damaging to the patient.
The Mental Health Review Tribunal also has the power to terminate a person’s status as a forensic patient.
The Tribunal can order the conditional or unconditional release of a forensic patient if it is satisfied there is enough evidence that:
The Tribunal requires the report of an independent psychiatrist, who is not currently treating the forensic patient, before granting conditional or unconditional release. The Minister for Mental Health and registered victims (if they exist in the person’s matter) will be informed of their application for conditional or unconditional release. These applications require a lot of preparation and notice to the Tribunal and relevant parties.
If a forensic patient is granted conditional release, their case will continue to be reviewed by the Tribunal every six (6) or twelve (12) months. The conditions may include regular meetings with a case manager and psychiatrist, taking certain medications at specified dosages and/or refraining from certain behaviour (such as using illicit substances).
Normally, conditional release will be granted before unconditional release. When unconditional release is granted, the person stops being a forensic patient.
The Tribunal cannot order a person’s release if they are on remand (being held in detention) waiting for a hearing about whether or not they are fit to be tried.
Victims can participate in Tribunal reviews in certain situations, and this is to reflect the impact on victims. There are different types of victims:
The Specialist Victims Support Service (SVSS) provides advice and support to victims, including people victims of forensic patients. SVSS notifies people on the Victims Register, if they want, of when Tribunal reviews of the relevant forensic patient are happening. They can attend on the victim’s behalf as an observer if the victim wants to know what is decided but does not wish to attend.
Registered victims can make submission if the forensic patient’s is seeking leave or release. A victim can apply for a non-association order or place restriction order. A non-association order is an order that the forensic patient cannot contact the victim or members of the victim’s family. A place restriction order is an order that the forensic patient be prohibited or restricted from visiting particular places (for example, where the victim lives or works).
The registered victim may also request that the Mental Health Review Tribunal not disclose their submission to the forensic patient. The Mental Health Review will agree to this request if they believe it is fair to do so. The Tribunal may provide an edited version of the victim’s submission (for example, certain names or addresses may be edited) to the forensic patient’s lawyer. The victim will be told that the Mental Health Review Tribunal will do this.
SVSS is part of the government body Victims Services. For more information about SVSS, click here.
Forensic patients have a right to be represented free of charge by the Mental Health Advocacy Service when they are being reviewed by the Mental Health Review Tribunal. As a forensic patient, you can choose instead to have a private lawyer represent you, but you will have to pay for them yourself. The Mental Health Review Tribunal also has the power to permit a person who is not a lawyer to represent you.
A correctional patient is a person in custody who has become mentally ill, needs treatment in a mental health facility and has been transferred to a mental health facility.
The Director-General of the Ministry of Health (or a delegate) can order the transfer of a person in custody to a mental health facility.
The Mental Health Review Tribunal will review a person in who is in custody and who has been ordered to be transferred to a mental health facility, but who has not been transferred yet. The Tribunal will also regularly review the correctional patient after they are transferred. The Tribunal reviews the patient to see if they are mentally ill and whether they should continue to be detained in a mental health facility.
The Tribunal can also make an order that a person in custody receive mental health treatment in the general population of a correctional centre. These orders are called forensic community treatment orders.
Correctional patients are normally reviewed every six (6) months, unless this review period is extended to twelve (12) months.
The Mental Health Review Tribunal has the power to grant leave to forensic patients at a regular review or on separate application from a regular review. There are specific matters the Tribunal must consider before it grants leave and there are different types of leave that can be granted.
The Director-General of NSW Health may grant leave for forensic patients in emergencies or special circumstances, such as to attend a family funeral. The Director-General of Corrective Services may grant such leave for correctional patients. If you are a forensic or correctional patient and the Director-General has refused an application for leave, you can appeal against this decision to the Mental Health Review Tribunal.
If you are a correctional patient in the prison system, including the prison hospital in Long Bay Correctional Centre, your visits are regulated like visits to other prisoners.
If you are a forensic patient in a forensic hospital such as the Long Bay Forensic Hospital or Morisset Hospital, you can have visitors. However, the hospitals can restrict who visits you if they decide that a particular visitor is disruptive, a threat to security or their visits are having a negative effect on your recovery. This can mean an outright ban on that person visiting, or it might mean that there is supervision by hospital staff of any visits by that person.
To visit the Long Bay Forensic Hospital, you will need to prove your identity and there is a list of items you cannot take into the Hospital on a visit.
You should get legal advice before you plead guilty or not guilty to a criminal charge in the Local Court or make any other decision when you have been charged with a criminal offence.
The magistrate will usually agree to at least one adjournment (delay in the hearing) to give you time to get legal advice before he or she requires you to indicate whether you are pleading guilty or not guilty.
Legal advice and some representation is available for criminal matters from Legal Aid NSW. Legal Aid NSW has Duty Solicitors in Local Courts. LawAccess gives limited, over-the-phone information on all legal problems and can also refer you to a lawyer. This is also a free service.
If you are Aboriginal or Torres Strait Islander person, you can also contact the Aboriginal Legal Service NSW/ACT (ALS).
Legal Aid NSW and the Aboriginal Legal Service generally provide free advice and representation, subject to their guidelines. Legal Aid NSW often asks for an amount of money as a contribution to the cost of the legal services, but this will depend on your financial and other circumstances.
If you can afford to, you can also choose to pay for legal advice and representation through a private, criminal lawyer. You can contact the Law Society of NSW to find one in your local area.
Some Community Legal Centres have lawyers who represent people (for free) in criminal cases, and most provide free legal advice (usually on particular days of the week).
If you are homeless or at risk of being homeless, and are facing a criminal charge in a Local Court in Sydney or its suburbs, you can contact the Homeless Persons’ Legal Service for free legal advice and representation.
It is strongly advised that you get an experienced criminal lawyer if you want to make an application for a diversionary order, even if you do have help from your usual treatment team or the Court Liaison Service. If you are in custody, Legal Aid NSW will usually provide free representation.
You should ask your lawyer about diversionary options. Diversionary options are rehabilitation, treatment or intervention programs for people facing criminal charges in court to address their underlying problems, such as mental illness, homelessness, extreme poverty or substance use issues.
Updated February 1, 2021