Court: Mental Impairment
Mental Impairment Defence
Mental impairment defence: A viable mental impairment defence may be available if a person, at the time of engaging in the conduct constituting the offence, they were experiencing a mental illness that had the effect that: they did not know the nature and quality of the conduct; or they did not know that the conduct was wrong (if they could not reason with a moderate degree of sense and composure about whether the conduct as perceived by reasonable people was wrong)
In Victoria, this is detailed in the CRIMES (MENTAL IMPAIRMENT AND UNFITNESS TO BE TRIED) ACT 1997
Fitness to stand trial
A person is unfit to stand trial for an offence if their mental processes are so disordered during the trial that they are unable to:
- understand the nature of the charge;
- enter a plea to the charge and exercise the right to challenge juror or the jury;
- understand the nature of the trial;
- follow the course of the trial;
- understand the substantial effect of any evidence that may be given in support of the prosecution; or
- give instructions to their legal practitioner
In Victoria, this is detailed in the CRIMES (MENTAL IMPAIRMENT AND UNFITNESS TO BE TRIED) ACT 1997
Impaired mental functioning, whether temporary or permanent ("the condition"), is relevant to sentencing as detailed by Supreme Court of Victoria - Court of Appeal in R v Verdins; R v Buckley; R v Vo [2007] VSCA 102 (23 May 2007).
It states that it is relevant in at least the following six ways:
1. The condition may reduce the moral culpability of the offending conduct, as distinct from the offender's legal responsibility. Where that is so, the condition affects the punishment that is just in all the circumstances; and denunciation is less likely to be a relevant sentencing objective.
2. The condition may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served.
3. Whether general deterrence should be moderated or eliminated as a sentencing consideration depends upon the nature and severity of the symptoms exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of sentence or both.
4. Whether specific deterrence should be moderated or eliminated as a sentencing consideration likewise depends upon the nature and severity of the symptoms of the condition as exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of the sentence or both.
5. The existence of the condition at the date of sentencing (or its foreseeable recurrence) may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health.
6. Where there is a serious risk of imprisonment having a significant adverse effect on the offender's mental health, this will be a factor tending to mitigate punishment.
Neuropsychological Assessment and Mental Impairment
A neuropsychological assessment can be extremely useful to consider both fitness to stand trial and also mental impairment defence. A neuropsychological assessment can directly assess a person's cognitive fuctioning to determine if they have sufficient cognitive ability to enter a plea to the charge and exercise the right to challenge juror or the jury;
understand the nature of the trial;
follow the course of the trial;
understand the substantial effect of any evidence that may be given in support of the prosecution; or
give instructions to their legal practitioner.
The neuropsychological assessment can also consider, if, at the time the person was engaging in the conduct constituting the offence, if they were experiencing a mental illness. Secondly, the neuropsychological assessment can consider if there is a 'disease of the mind', did it have the effect that: they did not know the nature and quality of the conduct. While a person may actually understand that a behaviour is wrong, they still may have a mental impairment defence. Specifically, a neuropsychological assessment may demonstrate that the person could not reason with a moderate degree of sense and composure about whether the conduct as perceived by reasonable people was wrong.
A neuropsychological assessment can also provide provide expert opinion if there is evidence that there is brain dysfuction that is relevant towards reducing moral culpablity as detailed in Supreme Court of Victoria - Court of Appeal in R v Verdins; R v Buckley; R v Vo [2007] VSCA 102 (23 May 2007):
(a) impairs an offender's ability to exercise appropriate judgment;
(b) impairing the offender's ability to make calm and rational choices, or to think clearly;
(c) making the offender disinhibited;
(d) impairing the offender's ability to appreciate the wrongfulness of the conduct;
(e) obscuring the intent to commit the offence; or
(f) contributing (causally) to the commission of the offence.
When a forensic neuropsychological assessment (or any neuropsychological assessment for that matter) is conducted, it is always independent. The test result findings, interpretation and conclusions are detailed in a report. The clinical neuropsycholgist has a professional, legal and ethical obligation to provide information to the court that is accurate and impartial.
Forensic Neuropsychology is a specialist area of neuropsychology and requires a high level of expertise. In many cases a neuropsychologist can be requested to give evidence in a court of law. This can be important to assit the court further understand the results, findings and conclusions based on the neuropsychological assessment and the neurpsychologists expert opinion.
Neurodynamics provides tailored a neuropsychological assessment service that can assist with determining wheather a person is fit to stand trial or if they have a mental impairment defence. Please contact us if you require assistance in this area.
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