The ‘Act Proven But Not Criminally Responsible’ Defence in New South Wales


For the first time a journalist, Damien Carrick was able to record in the Thomas Embling Hospital, Melbourne’s forensic healthcare facility.

Of the approximately 130 patients, many individuals within the facility have killed someone or committed other serious crimes however are not deemed responsible for their conduct due to the mental health or cognitive impairment defence.

Mr Carrick uncovers that the majority of the individuals within the hospital were very mentally unwell and diagnosed with a mental illness that left them not criminally or morally responsible for the offence, and therefore are treated for their illness rather than punished for their crime.

The units are either sub-acute or acute, depending on if they experience active symptoms and severity of the mental or psychotic illness such as schizophrenia.

Dr Danny Sullivan, Psychiatrist, and Executive Director of Clinical Services at the hospital state that some patients generally stay in the facility for 7-8 years however if they are considered a threat to society this can be much longer.

A small percentage of people do not get released as “we can’t detain everyone forever and to return people to the community, what we have to do is very gradually and incrementally provide increased opportunities for people to interact with others” Doctor Sullivan stated.

Doctor Sullivan also revealed that around half of prisoners will re-offend and return to prison often within a couple of years after their release therefore these hospitals and necessary to provide rehabilitation and facilitate reintegration safely into the community to reduce the risk of reoffending.


Mental health and Cognitively Impaired Offenders

Individuals with mental illness are over-represented in the criminal justice system where numerous studies show that the incidence of mental illness among those people is higher than in the general community.

A person is deemed to suffer a ‘mental health impairment’ if they have a temporary or ongoing disturbance of thought, perception, volition, memory or mood, regarded a significant for clinical diagnostic purposes, and such disturbance impairs his or her emotional wellbeing, judgement or behaviour. This definition is reflected in section 4 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW).

The defence of mental health impairment that detaches criminal responsibility for a crime applies if a person who has committed a crime has done so while labouring under a mental health impairment or cognitive impairment such that he or she did not know the nature or quality of the act or did not know that it was wrong. According, to section 28 of the Act, this results in a special verdict of ‘act proven but not criminally responsible’ (also known as the Mc’Naghten defence).

Following the special verdict finding, the defendant will either be released with or without conditions or detained in a mental health facility for an indeterminate period of time until released by due process of law (amongst other orders that the court may impose), under sections 33 and 34 of the Act.

Other than being unconditionally released following a special verdict finding, the defendant will be referred by the court to the Mental Health Review Tribunal as a ‘forensic patient’. The defendant will thereby be continually reviewed by the Tribunal for his or her continued detention, treatment, care or release (conditional or unconditional).

The court will rely heavily on reports from psychiatrists, and psychologists, and utilise expert testimony under the Evidence Act 1995 (NSW) to determine if the defence can be established based on the unique circumstances of the case.

By Alyssa Maschmedt and Jimmy Singh.

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