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NSW Mental Health Defence for Child Abuse Material?

Discussion in 'Criminal Law Forum' started by Leah_m, 18 June 2015.

  1. Leah_m

    Leah_m Active Member

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    Hi all,
    I'm just after some explanation on the process of Criminal Law and The Mental Health Act.

    I reported my partner (at the time, now ex-partner) for possession of child pornography. I am a witness for the police. The police immediately seized all his devices with my permission. When he found out, he checked himself into the local psych ward. He was there for a few months. When he was discharged from hospital he was charged and arrested with 2 counts of child pornogrpahy. He did not enter a plea and has had the case held over until March next year under The Mental Health Act.

    The police officer in charge of the case tells me he is seeking a defence under the Mental Health Act. He also said in March, they will present their case to the magistrate for the mental health defence and if successful he will have no consequences. Police officers agrees with me that it is all very convenient. I believe he may truly be mental ill at the moment or perhaps not, it's impossible to know. To point out the obvious he was just fine until he was busted. A few years prior to all of this he had been off work due to depression, that is the only history of mental illness I am aware of.

    I'm just wondering what people in the know think about this? I'm worried if he gets off, there is nothing to stop him doing it again or even doing worse. How does the system protect the public in these situations?

    Also am I right in assuming there could be two separate issues here? One being defence of the actual crime and then also not being fit to participate in the court process, entering a plea etc?

    Thanks in advance.
     
  2. Tracy B

    Tracy B Well-Known Member

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    Hi Leah_m,

    You are correct, there are two different but connected issues here.

    1. Is your ex partner fit to be tried (including entering a plea)?

    This will look at his mental condition at that moment. Does he understand what a guilty plea is. Does he understand the facts charged against him, and the offence, and is he able to make a voluntary and positive indication whether he is guilty or not. I suspect, given that he committed himself to a mental health specialist, he would be capable of participating in trial, including entering a guilty plea. However, if he raises this issue, then the court may need to adjourn (suspend) proceedings and hold an "on-the-side" hearing to question his soundness of mind and capacity. His unfitness is determined by the civil standard (i.e. balance of probabilities), which is a lower threshold to prove than the criminal standard (i.e. beyond reasonable doubt).

    2. What about raising mental illness as a defence?

    This looks at whether your ex partner was mentally ill at the time of committing the crime. This goes to whether your ex partner could be held responsible under the law for the acts he did. The question is: was he suffering from a mental condition so that he could not have appreciated the nature and quality of the act. The aim of criminal law is not just to protect the public, but also to rehabilitate the accused. If the accused committed a crime but did not appreciate what he was doing because of a mental condition (deterioration, defect in reason, disturbance in the mind) then the correct place for the accused is not detention but medical care. If the defence is accepted, then the court may order your ex partner to admit himself to medical care for some time.

    Note, I say "defence" but in fact, it is not so much a defence as the lack of one of the necessary elements that make up a crime. For a crime to be committed, the accused must be capable of appreciating what s/he did and have acted voluntarily (i.e. out of own volition). If the accused if affected by a mental condition that significantly affects his/her mental capacity, so that if s/he did not know what s/he was doing, then the offence cannot be made out in the first place.
     
  3. Leah_m

    Leah_m Active Member

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    Thank you, that is very helpful. What happens if the magistrate accepts his 'defence' for the crime, can the prosecution appeal that decision?

    What happens in this scenario...If he was sound of mind prior to getting caught, but is now unfit to be tried?

    I'm just trying out different scenarios, due to the fact that I feel he is highly manipulative and this could pan out any number of ways. Clearly, I feel that he knew right from wrong when breaking the law. He certainly had conversations with me about child sexual abuse and his responses were "normal." Police officer feels he has been using the mental health card to his advantage since getting caught. He was admitted to hospital within 12 hours of finding out they seized his computers. But if the courts have delayed things until March, he must have some Docs reporting that he is currently impaired.

    Also when all of this gets addressed, is it likely that I will be called as witness regarding his state of mind when we were together? (I'm really annoyed, although not suprised I haven't been included thus far, because it's all quite ridiculous to say he didn't know what he was doing when committing the offences due to impairment.)

    Thanks, I'm kind of venting about this too!
     
  4. Tracy B

    Tracy B Well-Known Member

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    Hi Leah_m,

    It's good to talk to someone about this. Hope you have a good support network you can turn to.

    As for your questions:

    The prosecution can appeal against a decision if there are grounds for appeal available. Example: if the judge misinterpreted applicable law, if the judge failed to take into account some fact/evidence that the judge was obliged to consider or if there was an irregularity in the criminal process. The prosecution cannot appeal just because they do not like the decision and want another court/judge to retry the case.

    Judges are not blind or ignorant. They are all competent and experienced. Chances are, they have heard the mental health argument over and over from different defendants and can tell when someone is genuinely ill or when they are just using it as a convenient excuse. For example, does your ex husband work? If so, how is he able to hold down employment and do what he does on a daily basis while claiming he is unfit for trial or unable to appreciate the acts he committed. Trust the evidence and the process.

    Whilst your ex husband may be manipulative, judges are some of the smartest and wisest people around (plus, extremely experienced in what they do).

    This will come down to what evidence is available to show that (i) he is unfit to be tried, against evidence showing (ii) he is of sound mind. If he checked himself into a mental health clinic after getting caught, this suggests that he is of sound mind and is aware of what he is doing. It is rare for courts to rule someone incapable of standing trial.

    This depends on the prosecution and their strategy. However, since you first discovered the pornography and you were the one that alerted the police about it, and given you were close with the accused, it would make sense for the prosecution to call you as a witness. You will need to agree to act as a witness.
     
  5. Leah_m

    Leah_m Active Member

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    Thank you Tracy. I'm going to try and not worry about it all now until next year! The current family law situation is completely different pile of poo that will hopefully be sorted out by then. It's gut wrenching that doing the right thing has caused me so much drama. The idealist in me is floored.
     
  6. Leah_m

    Leah_m Active Member

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    Just an update, I had a diagnosis trickle down via family law solicitors (we only just settled yesterday) and they say he is diagnosed as Schizophrenic. I find that quite ludicrous, there was no evidence of that kind of mind disturbance when I was with him. Not even a hint of it. I accept that perhaps the stress of getting caught triggered some kind of psychosis/schizophrenic episode.

    I am now much clearer about what has happened during our relationship and what has happened since. I have had extensive counselling and support. The professionals dealing with me have the opinion that he is personality disordered.

    So I just came back to the forum to posts again and have a little whine. But overall I'm doing great now. Especially since we settled the family law matter yesterday!

    I'll look forward to contributing to the criminal proceedings if I am needed. I'm strong enough to handle it now. It was good it was held over for a year
     

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