The legal process relating to Mental Competence and Fitness to Stand Trial is both involved and complex.

Here is an overview of the Mental Impairment and Fitness to Stand Trial legal process, including the steps involved and terminology used. It is by no means exhaustive and we always recommend that you speak with the relevant DPP Prosecutor or Witness Assistance Officer (WAO) for information specific to your matter.

Mental Impairment / Fitness to Stand Trial Flow Chart (PDF, 394.9 KB)

South Australian law relating to people who have a mental illness and who commit criminal offences is covered under Part 8A (Sections 269A - 269ZB) of the Criminal Law Consolidation Act, 1935.

The legislation specifically deals with:

  • Criminal offenders who are Mentally Incompetent at the time of committing the alleged offence or offences, and
  • Criminal Offenders who are currently Unfit Fit to Stand Trial for the alleged offence or offences.

The ‘State’ has an obligation to protect members of the South Australian community from all criminal offenders including those who are mentally ill or have a mental illness.

This involves ensuring that criminal offenders who have a mental illness (that plays a significant part in the relevant offence) are treated and supervised in an effort to prevent them from committing further criminal offences.

When a person commits a criminal offence, two key elements must be established at law - firstly that the accused person actually committed the criminal act or acts they are charged with (known by the term actus reus - meaning ‘guilty act’), and secondly, that the accused person had a particular intention to commit the criminal act (known by the term mens rea - meaning ‘guilty mind’).

Explained more simply, the court is interested in both what the person did, and what the person’s state of mind was at the time of the alleged offending.

For people who are mentally ill, their mental illness can deprive them of the ability to adequately understand what they are doing or what they have done.

Where this occurs the law can determine that they lacked the necessary level of Mental Competence to commit the offence.

In such circumstances, the court will find the person Not Guilty of the offence or offences.

In addition, a person’s mental state can deprive them of the ability to properly understand the court process.

As a consequence, the court can find the person Unfit to Stand Trial.

According to Part 8A of the Criminal Law Consolidation Act, 1935, the term Mental Impairment is defined as:

(a) a mental illness*; or

(b) an intellectual disability; or

(c) a disability or impairment of the mind resulting from senility.

*Mental Illness is defined as “a pathological infirmity of the mind (including a temporary one of short duration)”.

The term Mental Competence is different to the term Mental Impairment.

According to the legislation, a person is considered Mentally Incompetent to commit an offence if, at the time of the conduct alleged to give rise to the offence, the person is suffering from a mental impairment and, in consequence of the mental impairment -

(a) does not know the nature and quality of the conduct; or

(b) does not know the conduct is wrong; that is, the person could not reason about whether the conduct, as perceived by reasonable people, is wrong; or

(c) is totally unable to control the conduct.

The simple answer to this question is NO.

Part 8A of the Criminal Law Consolidation Act, 1935 does not deal with circumstances where a person is intoxicated by alcohol or affected by other drugs at the time of the alleged offending.

The legislation only applies to persons with a mental impairment.  However there may be circumstances where the question of drug use and mental impairment need to be considered by the court.

Part 8 of the Criminal Law Consolidation Act, 1935 deals with Intoxication.

According to Part 8A of the Criminal Law Consolidation Act, 1935, a person is considered mentally unfit to stand trial on a charge of an offence if the person’s mental processes are so disordered or impaired that

the person is:

  • (a) unable to understand, or respond rationally to, the charge or the allegation on which the charge is based; or
  • (b) unable to exercise (or to give rational instructions about the exercise of) procedural rights (such as, for example, the right to challenge jurors); or
  • (c) unable to understand the nature of the proceedings, or to follow the evidence or the course of the proceedings.

A person’s Fitness to Stand Trial relates to their mental state at the time of the trial.

An accused person can raise a Mental Competence or Unfit to Stand Trial defence at any time that their mental competence or fitness to plead becomes an issue during the criminal court process.

An accused person will normally raise a Mental Competence or Unfit to Stand Trial defence prior to entering a plea to the relevant charges for the first time in the relevant court (or jurisdiction).

Where the issue of Mental Impairment or Unfitness to Stand Trial is raised, the Court can order or consider expert psychiatric or psychological reports.

If in the views of the experts it is determined that the person is mentally competent or fit to stand trial, the legal proceedings will proceed in the ‘normal way’.

Where the experts indicate that a person has a Mental Impairment or is Unfit to Stand Trial, the court will deliver its findings and proceed to a determination of the Objective Elements of the offence or offences.

Sometimes, the Mental Impairment or Fitness to Stand Trial reports are contested (disputed). This is commonly the case where there is a difference of professional opinion between the relevant experts. Where this is the case, a court hearing may be held so that the experts who have assessed the person can explain their report findings before the judge in an open court.

The circumstance of every legal case is different. It is therefore only possible to explain the steps and stages involved in Mental Impairment or Unfit to Stand Trial process in a general way.

More specific information is best explained by legal staff involved in prosecuting the case involving you or your family.

The general Steps involved are explained in more detail throughout this document (Refer to Mental Impairment / Fitness to Stand Trial Flow Chart (PDF, 394.9 KB)).

When a person is found Mentally Incompetent or Unfit to Stand Trial they will not be subject to a Trial in the ordinary way.

Where a person has been found Not Guilty of the mental element (mens rea or ‘guilty mind’) of the offences, it is still important for the court to determine if they committed the physical acts (actus rea or ‘guilty act’) that they were charged with. This is known as the Objective Elements of an offence.

Establishing the Objective Elements of an alleged offence will involve a Trial, unless the defence admits that the accused person committed the act or acts they have been charged with (therefore removing with the need for a trial).

Where the Objective Elements are ‘proven’ beyond reasonable doubt the accused person will then be Declared Liable to Supervision.

If the prosecution is unable to establish or ‘prove’ the Objective Elements of the offences, the matter will be dismissed by the court. In such circumstances the accused person will be cleared of all charges.

If it is established that an accused person is Mentally Incompetent or Unfit to Stand Trial the court will make a declaration in those terms (even if the Objective Elements are established (or proven) beyond all reasonable doubt).

This finding by the court can be very difficult for victims and families, particularly where a person is deceased, traumatised or physically injured as a result of the criminal offences.

However, in such circumstances, and providing that the Objective Elements of the offence are proven, a finding made by the court as to Mental Incompetence or Fitness to Stand Trial, does not ordinarily mean that the defendant won’t have restrictions on his or her movements.

Ordinarily, there will be a period of supervision and treatment.

Where an accused person is found to be Mentally Incompetent or Unfit to Stand Trial, and the Objective Elements of the offence(s) are proven, they will then be Declared Liable to Supervision by the court.

When a person is found to be “Mentally Incompetent” or “Unfit to Stand Trial”, the court will deliver findings reflecting either of these decisions.

This language is commonly difficult for victims and families who may view the finding as the defendant ‘getting away with the crime committed’.

The finding however does not mean that the person has not committed the acts that make up the crime. It simply means that the person could not be found guilty of the ‘mens rea’ or ‘guilty mind’ element of the offence. (In the case of Mental Incompetence).

269NA of the Criminal Law Consolidation Act, 1935, recognises the importance of protecting the community and places safety of the community as a paramount consideration.

(1) The paramount consideration of the court in determining whether to release a defendant under this Division, or the conditions of a licence, must be to protect the safety of the community (whether as individuals or in general).

(2) The paramount consideration of the safety of the community outweighs the principle that restrictions on the defendant’s freedom and personal autonomy should be kept to a minimum.

Where a person is found to be Mentally Incompetent or Unfit to Stand Trial, and the Objective Elements of the offence or offences are also established,they will then be Declared Liable to Supervision.

At this stage the court will consider a number of specific reports. These will include:

  • a report from the Minister of Health (or delegate),
  • one or more reports from Psychiatrists or Other Appropriate Experts,
  • and a Victim and Next of Kin Counselling Report.

Based on the reports the court has an option to do one of the following:

  1. Release the Defendant Unconditionally
  2. Commit the Defendant to Detention (in a Forensic Mental Health Facility, or other appropriate secure facility)
  3. Release the Defendant on Licence

The decision about appropriate supervision will be guided by a number of expert and other reports ordered by the court.

Decisions as to the appropriate supervision will be dependent on a number of factors including:

  • The nature of the defendant’s mental illness or impairment
  • Whether the defendant is, or would, likely endanger other persons
  • Whether there are adequate resources available for the treatment and  support of the defendant in the community;
  • Whether the defendant is likely to comply with conditions of a licence; and
  • Any other matter the court thinks is relevant.

Once a person is declared Liable to Supervision, the Court will also impose a ‘Limiting Term’.

A Limiting Term is the period for which the person is to be supervised, treated and/or detained and will reflect the length of the sentence the person would have received had they not been declared mentally incompetent or unfit to stand trial.

The rights of victims are expressed across several pieces of legislation. Please speak to the DPP Prosecutor or WAO about these other options.

Where you are a victim of the offences, or the next of kin of a deceased victim, you will be invited to express a view about the Supervision of the Defendant via the Victim Next of Kin Counselling Report (VNOKCR).

As part of the VNOKCR you may be asked to talk about:

  • Your current thoughts or feelings about what has happened;
  • The impact of the offence on you (and members of your family);
  • Any safety or security concerns you may have;
  • Your view about treatment plans or arrangements proposed; and
  • Any other information you think is relevant or important for the court to know

It is important to note that the defendant’s next of kin will also be provided with an opportunity to do the same.

When a VNOKCR is ordered by the court you will be contacted by a Social Worker from the Forensic Mental Health Service who will talk with you and report your views in writing to the relevant court.

Expressing your views in a VNOKCR is voluntary. Sometimes victims decide that they do not want to participate in the preparation of a VNOKCR.

It is your right to say that you no longer wish to have your views communicated to the court or to be advised of any applications made by the person.

When a person is Declared Liable to Supervision and Committed to Detention they will be detained in a Forensic Mental Health Facility (James Nash House), or other appropriate secure facility.

If a person is detained to James Nash House they will be placed in a high, medium or low security ward as appropriate.

All wards are supervised and detained ‘patients’ cannot leave the unit unless approved by the court (or for emergency medical reasons).

As forensic patients stabilise or recover it is not uncommon for them to move from a high security ward to a medium or low security ward as their mental illness is treated and stabilised.

James Nash House also has a number of specific ‘rehabilitation’ wards for patients who are preparing for ‘discharge’ to the community at some stage in the future.

The progress of a person detained in such a facility is carefully managed and monitored by experienced forensic mental health staff.

Once a person is Declared Liable to Supervision, one option available to the Court is to Release the Person on Licence’

Where a person is to be Released on Licence, they are not detained in a Forensic Mental Health facility, and the court will impose relevant conditions that the defendant must abide by.

The legal document spelling out the conditions the defendant is to abide by is known as a ‘Supervision Order’.

Common Licence Conditions in a Supervision Order may include the following:

  • Not to contact victims or their families;
  • To follow all directions as to treatment or medication;
  • To comply with agreed treatment plans;
  • To see their treating psychiatrist on an agreed basis;
  • To be under the supervision of a Community Corrections Officer;
  • To not consume alcohol or other illicit substances;
  • To not enter licensed premises;
  • To submit to random urine drug testing;
  • To not leave the State of South Australia without permission;
  • To reside only at an approved facility or residence;
  • To be of good behaviour (i.e. not commit further offences);
  • To be prohibited from owning a firearm

Failing to abide by these strict conditions may result in the defendant ‘Breaching’ their Licence Conditions.

Where this is the case, the matter may return to the Court.

If the defendant breaches (does not comply with) their Supervision Conditions, the matter may come back before the relevant Court.

In such cases the DPP, Community Corrections Officer and Forensic Mental Health Service will discuss the matter in detail to determine if a breach is required.

If the defendant does not report for agreed appointments or cannot be located (absconds), or their mental state starts to deteriorate, or they again become mentally unwell, an urgent application may be made to the Court by the DPP.

The matter can then come back before the court and appropriate action may be taken.

In appropriate cases, a Supervision Order may be revoked and the defendant detained. In other cases stricter conditions may be imposed to increase the level of supervision.

The DPP Prosecutor and / or Witness Assistance Officer (WAO) will keep you informed and up to date about Mental Impairment and Fitness to Stand Trial proceedings.

Once a defendant is Declared Liable to Supervision and Limiting Term is set, staff from the Forensic Victim Register (FVR) will continue to update you about future matters or court proceedings (please note you must register with the FVR for this to occur).

Where you require information about the accommodation, supervision and treatment of a person who has been Declared Liable to Supervision, the Social Workers at James Nash House (Forensic Mental Health Service) or staff from the FVR should be able to assist you.

You can choose not to have continued involvement and updates if this is your wish.

Some families prefer to nominate a ‘family spokesperson’ who can advise on matters as they occur, make decisions for the family or provide their views on behalf of the family.

Once a Supervision Order has been made, it may effectively be the end of the matter until the Limiting Term (period of supervision) expires.

During the period of the Limiting Term, the DPP will receive ongoing Annual Reports. If these reports contain any information of concern, the matter can be called back before the court to explore the concerns raised.

A defendant may apply to Vary Their Supervision Order, and can apply to do so at varying intervals. Where this is the case, you have a right to continue to be informed of any developments or changes if, and where, they occur.

This can be very distressing for victims and families when they are attempting to ‘move on’ from what has happened to them.

Victims and families commonly find it difficult when a defendant is applying for greater ‘freedoms’ or a ‘relaxing’ of their supervision conditions.

It is important that you inform the DPP Prosecutor, Witness Assistance Officer or staff at the FVR where you feel you need a temporary or permanent break from being contacted about outcomes and developments.

Throughout the term of the supervision period (Limiting Term), the defendant may apply to vary their supervision conditions for a number of reasons.

A defendant may apply to be allowed to do certain things they currently cannot, for example:

  • Attend relevant programs
  • Attend local facilities or conveniences on a supervised or restricted basis
  • Be allowed overnight stays at the place of an approved relative or friend
  • Travel interstate for specified reasons

A person may also apply to vary their accommodation arrangements, for example:

  • From a closed detention ward to a open detention ward
  • To be released into appropriate community accommodation
  • To reside with appropriate family or friends.
  • To some other appropriate and / or agreed arrangement

Where the supervision conditions are varied or altered for a specific reason (i.e. interstate travel) arrangements are put in place to ensure the person is adequately supervised and / or monitored.

Where a defendant applies to Vary Their Supervision Order the court will again order relevant reports including an updated Victim Next of Kin Counselling Report.Where this is the case, you will again have an opportunity to express your views about the changes to the supervision conditions proposed.

Emotional Impact

It is important not to underestimate the emotional impact of the legal process.

It is not uncommon to find the mental impairment and unfit to stand trial legal processes frustrating, confusing, overwhelming and exhausting. It is important that victims and families are well supported throughout the legal process.

Delays & Adjournments

The process of the court determining whether a person is mentally incompetent or unfit stand trial is commonly lengthy and is likely to involve ongoing adjournments while reports are being written, conditions determined and appropriate supervision arrangements decided.

Please remember that delays can occur as is important for the court to act cautiously and decisively in such matters.

It is not uncommon however for victims and family members to become frustrated with delays, adjournments and the length of time it can take to resolve such matters.

Media Involvement

Where a crime has been committed by a person with a mental illness that has resulted in serious injury or death to a person, it is not uncommon for the media to take an interest and report on particular developments or outcomes.

Victims and family members should be mindful of media involvement and make an early decision about responding (or not responding) to the media in the event you are approached.

If you decide to speak with the media, keep in mind that courts have strict rules which prevent you from talking about most aspects of a case (i.e. evidence) whilst the proceedings are ongoing.

Expiry of the Supervision Order

It is important to remember that a defendant’s Limiting Term (supervision period) will expire at some point (unless a limiting term of Life was set). If you anticipate that this will provide additional stress and uncertainty, there are always people ready to support you in either emotional or practical ways. During this process you are not alone.