Criminal Defence Lawyers for Mental Health Defences

Mental health law is a complex area with over 1 million people in NSW who live with mental illness. Our leading criminal defence lawyers are experts in successfully running mental health defences for minor and very serious criminal offences. They hold a proven track record of getting exceptional results for over 20 years in court experience.

The Mental Health (Forensic Provisions) Act 1990 (NSW) is the law that provides a range of mental health defences in NSW.

Types Of Mental Illness Defences

Section 32 Mental Health Application

A s32 application is usually used for a large range of criminal offences which include assaults, stealing, even drink driving offences. If successful, your charge will be dismissed and you will avoid a criminal conviction. Instead you will be discharged with or without conditions to continue your treatment with your chosen psychologist or psychiatrist.

Your charge will be dismissed, and you will be discharged, if the following elements are satisfied in court, under s32 Mental Health (Forensic Provisions) Act 1990 (NSW):

  • You are suffering a mental illness, development disability or mental condition; and
  • Treatment is available in a mental health facility as an inpatient or outpatient basis; and
  • You are not a harm to yourself, or to members of the public; and
  • There is a treatment plan designed by your psychologist or psychiatrist, which both you and your treatment provider agrees to comply with; and
  • Your psychologist or psychiatrist believes that you can be sufficiently treated to a stable capacity within a 6 month period of time; and
  • The Magistrate believes, even though the seriousness of the offence, it will be more beneficial to you, and the community to discharge, and release you under the s32, and into the care of your treatment provider.

Our Senior Criminal Defence lawyers specialise in s32 mental health applications, holding an exceptional track record in successfully making these applications countless time for over 20 years.

To maximise your chances at succeeding, it is critical to obtain a specialised expert court report from a highly experienced and respected clinical psychologist or psychiatrist to address the above points. Our mental health defence lawyers will carefully guide you to the best suited and experienced psychologist or psychiatrist for your case.

McNaughton Defence

This defence is usually used for serious crimes such as murder and other serious assaults. This defence can be found in s38 Mental Health (Forensic Provisions) Act 1990.

You will be Not Guilty for a serious criminal charge, if you can prove on balance of probabilities, the following 2 elements of this defence:

  • At the time of the alleged offence, you were suffering a mental illness i.e. schizophrenia; and
  • The mental illness caused you to not know the nature and quality of your actions, or if you did, you couldn’t appreciate the wrongness of your actions at the time.

Your charge will be dismissed in court if the above 2 elements are proven. The Court will then deal with you in one of the following ways under s39:

  • You will be released right away without conditions; or
  • You will be released right away with conditions; or
  • You will be detained in a mental health facility or correctional centre.

To be released right away, you must prove on balance of probabilities that the safety of the community and yourself will not be seriously endangered.

If you are detained in a mental health facility by the Courts order, you then go under the care of the Mental Health Review Tribunal who will review your case every 6 months to determine whether it is safe to release you or a continued need to keep you detained.

Sane Automatism Defence

You will be Not Guilty by reason of mental illness if you can produce evidence to raise a reasonable possibility of the following:

  • Your actions were not voluntary i.e. due to dissociation caused by a severe psychological blow, PTSD, or other “external factor” where your reaction was from a healthy mind, and the dissociation was caused by an external factor which was temporary and not prone to recur; and
  • At the time you were unconscious, and didn’t know what you were doing; and
  • The dissociation causing the involuntary action was not due to an underlying mental illness

Your charge will be dismissed if the above are proven in court.

Insane Automatism Defence

You will be Not Guilty by reason of mental illness if you can produce evidence to raise a reasonable possibility of the following elements:

  • Your actions were not voluntary due to a mental illness, for example, your actions were caused by an already underlying unhealthy mind such as schizophrenia and is prone to recur; and
  • The mental illness caused you to not know the nature and quality of your actions, or if you did, you couldn’t appreciate the wrongness of your actions at the time.

Although your charge will be dismissed if the above is proven in court, the Judge is likely to detain you to then be reviewed by the Mental Health Review Tribunal for an indeterminate period of time.

Speak to one of our senior mental health criminal defence lawyers for realistic and practical advice on your best mental health defence, and how to strengthen it early in your case. Our team of senior lawyers know exactly how to maximise your chances at avoiding a criminal record and guide you onto the right path for a healthier you.

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