Mental impairment - WA

The Criminal Law (Mental Impairment) Act 2023 replaces the Criminal Law (Mentally Impaired Accused) Act 1996 from 1 September 2024. The purposes of the new Act are:

• to make provision in relation to criminal proceedings involving persons with mental impairment;
• to provide for special criminal proceedings for persons who are unfit to stand trial;
• to provide for the supervision of persons who, in special criminal proceedings, are found to have committed an offence;
• to provide for the supervision of persons acquitted on account of mental impairment;
• to provide for the safe reintegration into the community of persons supervised under this Act;
• to repeal the Criminal Law (Mentally Impaired Accused) Act 1996 and the Criminal Law (Mentally Impaired Accused) Regulations 1997;
• for related purposes.

Part 3 of the Criminal Law (Mental Impairment) Act 2023 applies to accused who are unfit to stand trial on criminal charges. Division 2 of that Part deals with raising and deciding the question of whether an accused is fit to stand trial on criminal charges. There is a presumption of fitness that can be rebutted if the accused is found to be unable to do one or more of the things listed in s 26, which include:

• understand the nature of the charge;
• give instructions;
• understand the requirement to plead, or the effect of a plea;
• follow the course of a trial; or
• properly defend the charge.

The question of fitness can be raised at any time before or during a trial. Under s 29, the court decides the question of fitness to stand trial on the balance of probabilities and may inform itself in any way it considers appropriate, including with medical evidence.

The Mental Health section of the Full Commentary in the By Lawyers Magistrates Court - Criminal (WA) guide has been updated accordingly.