June 15, 2024


The Legal System

The act proven but not criminally responsible defence in New South Wales – Crime

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For the first time a journalist, Damien Carrick was able to
record in the Thomas Embling Hospital, Melbourne’s forensic
healthcare facility.

Of the approximately 130 patients, many individuals within the
facility have killed someone or committed other serious crimes
however are not deemed responsible for their conduct due to the
mental health or cognitive impairment defence

Mr Carrick uncovers that the majority of the individuals within
the hospital were very mentally unwell and diagnosed with a mental
illness that left them not criminally or morally responsible for
the offence, and therefore are treated for their illness rather
than punished for their crime.

The units are either sub-acute or acute, depending on if they
experience active symptoms and severity of the mental or psychotic
illness such as schizophrenia.

Dr Danny Sullivan, Psychiatrist, and Executive Director of
Clinical Services at the hospital state that some patients
generally stay in the facility for 7-8 years however if they are
considered a threat to society this can be much longer.

A small percentage of people do not get released as “we
can’t detain everyone forever and to return people to the
community, what we have to do is very gradually and incrementally
provide increased opportunities for people to interact with
others” Doctor Sullivan stated.

Doctor Sullivan
also revealed that around half of prisoners
will re-offend and return to prison often within a couple of years
after their release therefore these hospitals and necessary to
provide rehabilitation and facilitate reintegration safely into the
community to reduce the risk of reoffending.


Individuals with mental illness are over-represented in the
criminal justice system where
numerous studies
show that the incidence of mental illness
among those people is higher than in the general community.

A person is deemed to suffer a ‘mental health
impairment’ if they have a temporary or ongoing disturbance of
thought, perception, volition, memory or mood, regarded a
significant for clinical diagnostic purposes, and such disturbance
impairs his or her emotional wellbeing, judgement or behaviour.
This definition is reflected in section 4 of the Mental Health and
Cognitive Impairment Forensic Provisions Act 2020 (NSW).

The defence of mental health impairment that detaches criminal
responsibility for a crime applies if a person who has committed a
crime has done so while labouring under a mental health impairment
or cognitive impairment such that he or she did not know the nature
or quality of the act or did not know that it was wrong. According,
to section 28 of the Act, this results in a special verdict of
‘act proven but not criminally responsible’ (also known as
Mc’Naghten defence

Following the special verdict finding, the defendant will either
be released with or without conditions or detained in a mental
health facility for an indeterminate period of time until released
by due process of law (amongst other orders that the court may
impose), under sections 33 and 34 of the Act.

Other than being unconditionally released following a special
verdict finding, the defendant will be referred by the court to the
Mental Health Review Tribunal as a ‘forensic patient’. The
defendant will thereby be continually reviewed by the Tribunal for
his or her continued detention, treatment, care or release
(conditional or unconditional).

The court will rely heavily on reports from psychiatrists, and
psychologists, and utilise expert testimony under the
Evidence Act 1995 (NSW
) to determine if the defence can be
established based on the unique circumstances of the case.

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