Few things cause more public alarm than the notion of the “crazed killer” walking our streets. A common figure in newspaper headlines and current affairs shows, he (occasionally she) is often accompanied by adjectives like “deranged” or “demented”, and portrayed as beyond reason and beyond reform.
Inaccurate portrayal adds to the stigma against people with mental illnesses. It also increases public confusion about the role of the courts, the justice system and the health system.
Criminals need to be held responsible for their actions and punished where appropriate. But people who are covered by the relevant legislation, which in Victoria is the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, are not criminals. They are people with a mental condition that is so severe they do not know or understand that they have committed a crime. And what they require is treatment, not punishment.
These cases, though rare, are complex. The issue of mental impairment arises in only 1% of the criminal cases coming before the Supreme and County Courts in Victoria. However, these cases usually involve very serious offences. Undoubtedly, these actions cause terrible harm to those affected, and legitimate and widespread public concern about community safety.
The defence of mental impairment
Two issues have to be distinguished: whether someone is fit to be put on trial (which relates to their current mental state); and, if they are fit for trial, whether they have a defence of mental impairment (which relates to their mental state at the time the alleged offence took place).
If someone is unfit to stand trial, special court processes apply to determine whether they did the act they are accused of, and what should happen in terms of supervision and treatment.
With someone who is fit to be tried, but who claims that at the time of the offence they were mentally impaired, there are two tests:
1) Did they know what they were doing?
2) Did they know that what they were doing was wrong?
Cases in the first category are rare. It is more common for a defence of mental impairment to be based on the second part of the test.
Persons accused of crimes are presumed by the law to be sane. This presumption can only be displaced by evidence, including specialist medical evidence.
Persons who commit crimes under the influence of alcohol or drugs are not classified by the law as mentally impaired and do not have the defence of mental impairment.
A court decides whether the defence is established or not. In the case of Arthur Freeman, who relied on a defence of mental impairment when he was on trial for murdering his daughter by throwing her off the West Gate Bridge, the jury decided that Freeman knew what he was doing and convicted him of murder. He was sentenced to life imprisonment with a minimum term of 32 years’ imprisonment before eligibility for parole.
In cases where the defence is accepted, the accused is found “not guilty because of mental impairment”. It may be that the defence and the prosecution agree that the accused was impaired, and the judge alone hears the evidence and decides if there should be a verdict of not guilty because of mental impairment. In other cases, often the less clear-cut cases, it is for the jury to decide.
Guilty or not?
If a person is found not guilty because of mental impairment, there is a perception among some sections of the community that they are “free to walk the streets” and have “got away with it”. This is not the case.
The finding has two coercive results: supervision (for community safety) and treatment (to ameliorate or cure the illness).
A person found “not guilty because of mental impairment”, although not a criminal, may be a serious risk to the community. If so, they need to be closely supervised, usually in a secure forensic facility such as Thomas Embling Hospital in Melbourne.
They need treatment for their mental impairment, which may take many years. In some cases, they may never be released from supervision. In other cases, given the right treatment and enough time, people can recover and, through a series of carefully monitored steps, gradually be returned to the community.
A review of the law
The Victorian Law Reform Commission recently reviewed the laws in this complex area. Over a two-year period the commission consulted widely – with victims and their families, community members, police, the courts, and health, disability and legal practitioners, people subject to the law and their families. A tragic aspect of this area of law is that often the victims are family members of the person who has carried out an act of violence against them.
Underpinning the commission’s review were two principles which are sometimes misunderstood.
First, whatever they have done, people covered by this Act are not criminals. They have been found not guilty by the courts. What happens next is therefore not a matter of punishment, but of treatment.
Secondly, this law has to balance two things – the safety of the community, and the rights of the person with a mental condition. Naturally, there are many different points of view about how these things should be balanced, but most people would agree that they are both important.
Overall, the commission found that the law is working well in Victoria, but could be improved in a number of key areas.
One recommendation is that it should always be a jury, not a judge, that decides on a verdict of “guilty” or “not guilty because of mental impairment”. Even in cases where the prosecution and the defence agree that the accused is mentally impaired, the commission considers that matters of this seriousness call for the direct involvement of the community, in the form of a jury.
Another recommendation is for the establishment of a secure place for treatment and supervision of young people and children who have a mental illness or cognitive impairment. At the moment, young people with mental impairments are sent to Parkville Youth Justice Centre, a corrections facility.
The commission also recommended a new medium-security forensic facility for adults. At the moment the only forensic hospital is the high-security Thomas Embling Hospital. A medium-secure facility would provide appropriate flexibility in the system and would relieve pressure on the Thomas Embling Hospital.
And a further recommendation is to give the Magistrates’ Court and Children’s Court more power to deal with cases involving unfitness to be tried and the defence of mental impairment. At present, these matters normally have to be sent up to the Supreme Court and County Court, causing delays and additional costs.
The commission’s other recommendations, and the report as a whole, can be viewed on the Victorian Law Reform Commission website.
All these recommendations aim to protect the community, while respecting the rights of people with mental conditions and helping them to recover. The best way to keep the community safe is by ensuring that people receive the right supervision and treatment.
It is the role of governments to legislate on these matters, of the courts to decide the outcome of cases, and of the justice and health systems to manage supervision and treatment.
However, it is strongly desirable for everyone in the community, whether affected by these matters or not, to develop an understanding of them that is more accurate than the stereotype of the “crazed killer”.