In July 2018, an Adelaide man, Jai Penning, viciously stabbed Ms Ferguson, a cleaner in a shopping centre. Ms Ferguson was stabbed multiple times in the back and across the neck, she accrued multiple serious injuries including an ear to ear neck laceration.
Mr Penning was diagnosed with treatment-resistant schizophrenia, and at the time of the attack, he was under the influence of multiple drugs including cocaine, methamphetamine, and ecstasy.
Mr Penning was found not guilty by reason of mental illness and is currently remaining at the mental health facility James Nash House. The Court is set to make orders regarding Mr Penning’s long-term future sometime on September 2020.
What is the Mental Illness defence in NSW?
The Mental Illness defence is a complete defence for a range of indictable offences, including murder and attempted murder.
This defence is established both in case law and in statute under s38 Mental Health (Forensic Provision) Act 1990 (NSW):
“If… evidence [is given] on the trial of the person for the offence that the person was mentally ill, so as not to be responsible, according to law, for his or her action at the time when the act was done or omission made, then, if it appears to the jury before which the person is tried that the person did the act or made the omission charged, but was mentally ill at the time when the person did or made the same, the jury must return a special verdict that the accused person is not guilty by reason of mental illness.”
This defence is rarely used as the legal threshold for “mental illness” under criminal law is much higher than the psychological threshold due to the application of the M’Naughten Rules. For example, not all severe diagnosed mental illnesses meet the “mental illness” defence threshold.
Key elements of the Mental Illness defence
The onus is on the accused to prove the elements of the Mental Illness Defence:
- A person, on trial for an offence/s,
- At the time of the alleged act/omission,
- Suffered from a defect of reason due to being mentally ill, and
- Did not appreciate the nature or quality of the act he/she was going, or
- Did not know his/her actions were wrong
Consequences of a successful Mental Illness defence
If the defendant successfully proves the Mental Illness defence, the judge must give an explanation to the jury of the practical consequences of successfully proving the mental illness defence. Contrary to popular belief, the person does not get to “walk away free” after a verdict of not guilty by mental illness.
The Judge will declare a specific verdict the defendant is not guilty by reason of mental illness. Following a special verdict, the Court may request an independent expert report on the condition of the person and the potential risk of endangerment of any member of the public if the person is released.
If the Court finds that the person is a risk to the public, they are required to detain the person either in a mental health facility, correctional centre or other places deemed appropriate by the Court. However, the Court, if they find that there is no risk, is also able to release the person conditionally or unconditionally. This decision must be reported by the Court Registrar to the Mental Health Review Tribunal.
The Mental Health tribunal will then do an initial review the person’s case and make an order regarding their care, detention, treatment, or release. These orders are based on the tribunal’s assessment of the risk the person poses to themselves or any member of the public as well as whether a less restrictive kind of care is available to the person.
If you are looking to plead guilty or to explore your options regarding your charge/s, Pannu Lawyers is able to advise you of your rights and assist you at every step of the criminal investigation & trial process. Pannu Lawyers extensively practice in Criminal Law and regularly appear at Courts throughout New South Wales such as Blacktown Local Court, Mt Druitt Local Court, Parramatta Local Court & District Court, Burwood Local Court, Downing Centre Local Court & District Court, and Penrith Local Court. If your matter is at Blacktown Court, we are conveniently located within a walking distance from the Blacktown Local Court. Call our office on 02 9920 1787 to discuss your matter in a confidential manner.
The above information is intended as general information and is not intended to be relied on as legal advice.
