Prosecuting Mental Impairment cases

Court Process for Mental Impairment cases

The Crimes (Mental Impairment & Unfitness to be Tried Act) 1997 applies when the accused person states that:

• they are unfit to stand trial because of a current mental illness or cognitive impairment; or
• they committed the crime but were suffering from a mental impairment at the time the offence.

Although ‘mental impairment’ is not defined in the law, it generally includes someone with a severe mental illness or disorder.

If the court finds an accused person unfit to stand trial or not guilty of the crime because of their mental impairment, they will generally place the person on a Supervision Order. This can be either a Custodial Supervision Order or one served in the community. A person on a Supervision Order is referred to as a Supervised Person.

Before the court places an offender on a Supervision Order, you will be given the opportunity to make a Victim or Family Member Report. For more information see the Victim or Family Member Reports section below.

Victim or Family Member Report

If the accused is prosecuted under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, you can make a Victim or Family Member Report telling the court about the impact of the crime on you.

The process under the Act is different to the standard trial process.

The Court will generally place an accused person on a Supervision Order where the person is either:

• unfit to stand trial on the basis of their current mental illness or cognitive impairment, but has been found to have committed the crime; or
• is found not guilty of the crime because of their mental impairment.

The Court will consider a number of things when making a Supervision Order, including any Victim or Family Member Reports.

You can make a Victim or Family Member Report if you are:

• the victim of the crime
• a family member of the victim of crime
• a family member of the Supervised Person (being the person who committed the crime).

It is your choice whether or not to make a Victim or Family Member Report.

Making a report provides you with an opportunity to express your views about what the Supervised Person has done and the impact of their conduct on you.

Victim or Family Member Reports help the court decide:

• what conditions to include in a Supervision Order
• whether or not to grant a Supervised Person leave of absence from custody during the term of their Supervision Order
• whether to change or cancel a Supervision Order.

If you make a report, the court is required to consider it before making the Supervision Order. The Office of Public Prosecutions has produced a guide, Prosecuting Mental Impairment Matters, which explains the process where a person who is mentally ill or cognitively impaired is prosecuted for a serious offence.

The guide includes a Victim or Family Member Report Form, which you can use to help you make your report. You do not have to use the form, but any report must be written in the form of a statutory declaration, otherwise the court may not accept it.

Victim or Family Member Report