In Western Australia, the Criminal Law (Mentally Impaired Accused) Act 1996 outlines the policies and procedures to be followed in criminal proceedings against people with a mental impairment who are deemed of ‘unsound mind’ or ‘unfit to stand trial’.

Under the Act, people who are of ‘unsound mind’ can be acquitted of a crime because at the time of the alleged offence they experienced some form of mental impairment which deprived them of the capacity to control or understand the implications of their actions.  To be found not guilty on the grounds of unsoundness of mind, the court must be satisfied beyond reasonable doubt that the person committed the acts making up the elements of the offence.

In contrast, people who are deemed ‘unfit to stand trial’ are considered unable to follow the course of the trial and, overall, not to be in a position to properly defend themselves. There is no trial.  While a court must have regard to the strength of evidence it is never proved beyond reasonable doubt that they actually did the acts in question.

If not unconditionally released, a person deemed to be of either unsound mind or unfit to stand trial will be placed on a ‘custody order’ until they can re­‐enter the community without posing an unacceptable risk.  This results in the person being detained indefinitely in a prison, a juvenile detention centre or an authorised hospital. The legislation also refers to the option of a ‘declared place’ but after 17 years, no such places have been declared.

For people held on a custody order re-entry into the community is usually a graduated process that can take a number of years depending on individual circumstances. Subject to assessments of risk, the person will be provided increasing amounts of freedom from their place of custody until they are released.

As of January 2013, 63 people had received a custody order under the Act since its inception.  Twenty six of these people were currently being held in custody.

Page last updated: June 9, 2014
Mentally impaired accused on ‘custody orders’: Not guilty, but incarcerated indefinitely