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Mental Health and Cognitive Impairment
This defence is available to anyone who suffers from a mental health or cognitive impairment as outlined by sections 4 & 5 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW).
Section 28 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) outlines the relevant steps in successfully claiming mental health and cognitive impairment as a defence.
A person is not criminally responsible for an offence if, at the time of carrying out the act constituting the offence, the person had a mental health impairment or cognitive impairment, or both, that had the effect that the person—
(a) did not know the nature and quality of the act, or
(b) did not know that the act was wrong (that is, the person could not reason with a moderate degree of sense and composure about whether the act, as perceived by reasonable people, was wrong).
If successful, the court may enter a special verdict of an 'act proven but not criminally responsible' (s 31 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW)).
This occurs when the defendant and prosecutor agree that the evidence satisfactorily established a defence of mental health or cognitive impairment.
The outcome of this verdict can be any of the following:
(a) An order that the defendant be remanded in custody until a further order is made under this section,
(b) An order that the defendant be detained in the place and manner that the court thinks fit until released by due process of law,
(c) An order for the unconditional or conditional release of the defendant from custody,
(d) Other orders that the court thinks appropriate.
Mental Health & Cognitive Impairment: Practices
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