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The NSW Government has improved victims’ opportunities to be involved in criminal cases involving people
with cognitive and mental health impairments.
An Act has been passed by in parliament to improve the forensic mental health system for victims. As a result:
The new legislation will give victims a stronger voice and better protect their rights and safety while maintaining the fair treatment of people with cognitive and mental health impairments in the justice system.
These reforms are important, as the current system treats victims of forensic patients differently to victims in normal criminal proceedings. For example, the current system does not allow victims to make a victim impact statement (VIS) where the accused person is found not guilty by reason of mental illness, or found unfit to be tried and acquitted of the offence at a special hearing. In contrast, if the defendant is convicted in normal criminal proceedings for various offences of personal violence, the victim is entitled under the Crimes (Sentencing Procedure) Act 1999 to make a VIS to the court before sentencing.
The reforms allow victims of persons found not guilty by reason of mental illness or unfit to be tried and acquitted of the offence at a special hearing, to submit a VIS to the court where the offence:
The reforms also improve the current system by giving victims of forensic patients greater access to information about Tribunal processes involving forensic patients, and provide more avenues for victims to participate in Tribunal proceedings.
The new legislation implements changes to more effectively acknowledge victim experiences, give them stronger safety protections, expand opportunities for their engagement with the criminal justice and forensic mental health systems, and better balance the interests of victims, communities and patients.
These changes build on the recommendations of the NSW Law Reform Commission reports on people with cognitive and mental health impairment in the criminal justice system and the report of the 2017 Review of the Mental Health Review Tribunal in relation to forensic patients. These reports involved extensive consultation with victims, health and disability agencies and the legal profession.
This reform is expected to:
Under the reforms, victims will have the right to submit a VIS to the court, if, had the defendant been convicted in normal criminal proceedings the victim would have been entitled under the Crimes Act (Sentencing Procedure) Act 1999 to make a VIS, and:
The court must pass the VIS to the Tribunal, who then consider it when reviewing a forensic patient's order and any applications for leave or release.
The opportunity for victims to make impact statements acknowledges the harm experienced by them and gives them a greater voice in the justice process. It will also bring greater consistency to how victims are treated across the justice system.
The reforms make clear that the Charter of Victims' Rights applies to victims under the Mental Health (Forensic Provisions) Act 1990.
Registered victims of forensic patients will also be given access to information regarding the Tribunal proceedings of the forensic patient.
The Tribunal oversees the care of forensic patients and makes decisions regarding their management and treatment. The Tribunal may release forensic patients into the community on temporary leave or conditional or unconditional release where appropriate. The Tribunal can to impose electronic monitoring as a condition of a forensic patient's leave or conditional release.
The new legislation will include a provision allowing the limiting term given to a forensic patient to be paused if they are unlawfully absent from a mental health facility or other place where they are detained. Currently a limiting term may expire while a forensic patient is unlawfully absent.
In addition, the Tribunal will be able to make an order to revoke the conditional release of a person who has been apprehended after breaching a condition of their release.
More information about the role of the Mental Health Review Tribunal is available on their website.
The new reforms will give the courts greater discretion to inform their decisions regarding a forensic patient.
The changes enable a court to obtain a report by an independent psychiatrist about a person found unfit to plead and not acquitted, or found not guilty by reason of mental illness, before determining what orders to make or whether the release of the person is likely to seriously endanger the community. The reforms also allow a court to seek submissions from designated carers and principal care providers to inform their decision regarding the release of a person found unfit to stand trial and not acquitted, or found not guilty by reason of mental illness.