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3 Nov 2016

Criminal Law Consolidation (Mental Impairment) Amendment Bill

The Hon. A.L. McLACHLAN ( 16:13 ): I rise to speak to the Criminal Law Consolidation (Mental Impairment) Amendment Bill 2016. I speak on behalf of the Liberal opposition and I indicate that the opposition supports the second reading of this bill. In November 2014, the Sentencing Advisory Council released a report on the operation of part 8 of the Criminal Law Consolidation Act. In consideration of the operation of part 8A of the Criminal Law Consolidation Act, the council considered the following:

  • a test of mental incompetence in section 269C;
  • the fixing of limiting terms; and
  • the supervision of defendants released on licence pursuant to section 269O.

In November 2014, the council completed its report, which made 27 recommendations. The bill before the chamber implements a number of these. I note, however, that one of the significant amendments contained in this bill regarding changes to the mental impairment defence is contrary to recommendations 9, 10 and 11 in the council’s report. I will come back to that later in my remarks.

The bill before us introduces various amendments to the Criminal Law Consolidation Act. It firstly amends section 269C by clearly defining mental incompetence, so that a defendant who invokes the mental impairment defence needs to be totally unable to control his or her conduct; partial inability will no longer be sufficient. It introduces a requirement that community safety is to be the paramount consideration for a court when determining whether to release a defendant on licence. It inserts a new provision that enables a person released on licence to be administratively detained for up to 14 days if future licence breaches are likely, or treatment is required to prevent future breaches.

This is a difficult and vexing issue, as expressed by the shadow attorney, the member for Bragg in the other place. Indeed, I am very uneasy with any formal power of detention—that does not sit comfortably on my shoulders. In the circumstances, the Liberal Party is not opposing the provision. We note the Law Society’s objections. We acknowledge, however, that the objective of the provision is preventative in its characterisation and intent. I ask the minister, in his second reading summing up, to directly address the concerns of the Law Society, and later in my submission I intend to read the Law Society submission into Hansard.

I also ask the minister, in summing up the second reading, for examples of what evidence will be required for such a determination to be made that a future breach is likely, how this is established and what burden of proof will be required. I note the bill sets out a range of extra powers which are available to the police when dealing with a person detained under these provisions. This includes the power to use reasonable force to break into a place in order to take a person into the officer’s care and control. I also note that this provision denies the person subject to such detention the opportunity to be heard in court.

The bill states that the prescribed authority decides where the person shall be detained, or, if no such person exists, a person declared by regulations. I ask the minister: what qualifications would the person envisaged to be invested with such significant powers by way of regulation be required to possess? I also ask: what type of facility will licencees be detained in, given that James Nash House is often at capacity? Will it be an appropriate mental health facility? The bill also inserts new provisions to provide for the continued supervision of a defendant, as, currently, once a limiting term expires they are released unconditionally.

The bill also introduces a greater and more flexible range of options available to the court in the summary jurisdiction. For example, the court will now have the option to dismiss the charge, discharge the defendant unconditionally, adjourn proceedings, remand the defendant on bail, or make any other order the court thinks fit. The number of expert reports required by the court has also been reduced with the aim of reducing complexities and delays in the court process. The bill also provides for the interstate transfer of people who have been released on licence, to enable them to move interstate, or vice versa, to participating jurisdictions.

One of the major areas of reform contained in the bill is the amendment to the mental impairment defence. The mental impairment defence requirements are currently set out in section 269C of the act. This section currently states 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 is suffering from a mental impairment and, in consequence of the mental impairment—

(a) does not know the nature and quality of the conduct; or

(b ) does not know that the conduct is wrong; or

(c) is unable to control the conduct.

The burden of proving that the defendant was mentally incompetent lies with the party advancing that assertion. The council’s review considered the relationship between the mental incompetence defence and the law relating to intoxication, given that there are no provisions in the act specifically addressing the issue of comorbid mental impairment and substance use.

Further to this, the Attorney‑General’s Department conducted a file review of cases where there has been a finding of not guilty on the basis of mental incompetence in the South Australian District and Supreme Courts between 2006 and 2012. A total of 55 cases were reviewed. Statistics revealed that almost a quarter of offenders who have successfully used the mental incompetence defence were suffering from an impairment caused by drug-induced psychosis, or substance abuse or dependence.

It has been asserted in government quarters that this has caused concern that the threshold for this defence has been too low. Perhaps a better way of putting it would be: an opportunity was seen to make another statement on law and order policy. In response to this finding, the bill introduces a new provision that prevents defendants from utilising the mental incompetence defence if it was caused by self-induced intoxication. This applies whether the intoxication occurred at the time of the relevant conduct or any other time before the relevant conduct.

In these circumstances, the defendant would instead be dealt with under part 8’s intoxication provisions. The bill also introduces a definition of ‘intoxication’ into that section, defining it as ‘a temporary disorder, abnormality or impairment of the mind that results from the consumption or administration of a drug’. I note that while some of the recommendations contained in the Sentencing Advisory Council’s report are being implemented by this bill, this amendment considering the mental impairment defence is not one of them. In particular, recommendations 9, 10 and 11 of the report advise that the existing provisions on intoxication and mental impairment should not be amended. The Sentencing Advisory Council’s recommendation 9 states:

The Criminal Law Consolidation Act 1935 should not be amended to prevent people from relying on the defence of mental incompetence when their inability to understand the nature and quality of their conduct, inability to understand that it was wrong, or incapacity for self-control was a consequence of the combined effects of mental illness and a state of self-induced intoxication.

Recommendation 10 states:

The Criminal Law Consolidation Act should not be amended to prevent people from relying on the defence of mental incompetence when their mental illness was caused by the use of intoxicants, but is not permanent, prolonged, persistent, protracted or enduring.

Recommendation 11 states:

The existing provisions on intoxication and mental impairment in the Criminal Law Consolidation Act should be retained without change.

I question the point of asking the leaders in the field who make up the Sentencing Advisory Council, only then to ignore their advice.

The members of the Sentencing Advisory Council are as follows: the Hon. Kevin Duggan, former Supreme Court judge, as its chair; Peter Alexander, community representative; Ms Liesl Chapman SC, representative of the Bar Association of South Australia; Ms Linda Williams, Assistant Commissioner of SAPOL, representative of South Australia Police; Ms Stacey Carter, representative of the Law Society of South Australia; Mr Jonathon Rice, community representative; Ms Roseanna Healy, community representative; Commissioner Mr Michael O’Connell, Representative of the Commissioner for Victims’ Rights South Australia; Ms Caroline Mealor, Deputy Chief Executive (Legal), representative of the Attorney-General’s Department; Mr Ian Press, Managing Prosecutor, representative of the Director of Public Prosecutions; Ms Frances Nelson QC, Expert Member, Presiding Member of the Parole Board of South Australia; Greg Mead SC, Expert Member, Senior Solicitor, Legal Services Commission of South Australia; Mr Ian Leader-Elliott, Expert Member, Emeritus Fellow, Adelaide University School of Law, Adjunct Professor, University of South Australia Law School.

In my view, it is just another demonstration by this government that law and order politics trumps the judgement, counsel, wisdom and advice of leaders in our society who are closer to the problems affecting our citizens and have the solutions which the government benches ignore. In the circumstances, I ask the minister in summing up the second reading to address directly why the government has not followed the advice of the council. In particular, what objections does the government have with the reasoning of the council on this issue? As I have indicated, I also request the minister deal directly in the summing-up with the concerns raised by the Law Society. The Law Society in its correspondence with the Attorney-General, dated 30 May 2016, and signed by David Caruso, the President, is as follows:

3. The Part 8A statutory regime, however, means that persons found to be mentally incompetent or unfit to stand trial are not arbitrarily and indefinitely detained and such persons are subject to review during the limiting term. As such, Part 8A provides a degree of certainty and protection to defendants and the community.

4. The Society supports the introduction of an alternative regime for summary and minor indictable offences. The current requirement to order three reports in respect of defendant’s charged with minor matters is often a lengthy and unnecessary process. The Society welcomes the introduction of options for the Court in these types of matters.

It goes on at paragraph 5:

5. An option that would be beneficial to all parties is if the Courts could have regard to previous reports. An accused person may be on a licence pursuant to Part 8A of the Act and offend again. This can happen soon after the person is released on licence. Rather than the time and expense of compiling a further three reports, the Courts ought to be able to have regard to and rely on those reports previously received.

The letter goes on in further paragraphs to criticise the 14-day detention, which I have already addressed in my submission. I would like to go to paragraph 9, titled Self-Induced Intoxication, which is the area I would specifically like the government to address:

9. The Society does not support the introduction of s 269C(2) that would preclude those found to be mentally incompetent but whose conduct was caused (wholly or in part) by self-induced intoxication, from being dealt with under Part 8A of the Act.

10. The most fundamental reason that the Society i s opposed to this amendment is because ‘Drug Induced Psychotic Disorder’ is a recognised medical condition pursuant to the Diagnostic and Statistical Manual of Mental Disorders (DSM-5).

11. A further reason why a restriction on self-induced intoxication o ught to be avoided is because the medical evidence suggests that it is often difficult for a psychiatrist to be certain of a diagnosis because methylamphetamine and cannabis use can induce a psychosis that can present in a very similar way to schizophrenia.

12. The overriding consideration is that a person should not be guilty of a criminal offence if he/she is not mentally competent to commit the offence.

13. The Society does not support the creation of a definition for the ‘self-induced’ use of drug (s 269A). The voluntariness or otherwise of a state of intoxication add a layer of complexity which inappropriately and unfairly detracts from the principal issue of mental incompetence as a consequence of mental illness. A person who is mentally incompetent to commit an offence should not be precluded from such a finding because of ‘self-induced’ drug use. To do so would expose an accused to the grave injustice of a guilty verdict in circumstances where they are mentally incompetent to commit the offence.

14. The question for the Court is causation and persons who fall in this category should not be prevented from advancing the mental impairment defence.

15. Drug use is a serious issue in our community. However, the criminal law is not the vehicle to deal with this problem. The criminal law must be concerned with an individual’s culpability.

The Liberal Party will support the second reading of the bill. I alert the government that I may have further questions at the committee stage.

See full session on Hansard

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