Representing Mentally Ill and Intellectually Disabled Clients in QLD

4.3 - Initial options at court

 

There are a number of options open to the defendant at the first Court appearance (a 'mention'):

  • The defendant can plead guilty to the offence, in which case the Magistrate will usually sentence the defendant immediately, and thus finalise the charges; or
  • The defendant can plead not guilty, at which point the Court will set the matter down for hearing. The defendant may then be released on bail upon such an application; or
  • The defendant can seek an adjournment, in which case the Court will allow a brief period for the defendant to address the reasons for the adjournment. In these cases, an application should be made for an adjournment. The client will either be remanded in custody or granted bail.  In the event that the defendant fails to return to Court on the next Court arranged date, the Court may issue an arrest warrant. Upon arresting the defendant, he/she will be met by a further charge, 'Failure to Appear', and may not be granted bail again until the charges are finalised.  (This charge is commonly evidenced in a disabled person's criminal history and can simply emanate from the disability itself, in particular the cognitive ability of the person and/or the episodic nature of their mental illness)

Given the often ambiguous and complex nature of diagnosing a relevant disability, it is often most prudent to attempt to adjourn the matter in order to obtain sufficient information to consider:

  • whether the client has a defence or is fit for trial; or
  • whether the matter should be referred to the Mental Health Court; or
  • to make an adequate submission in mitigation. 

Investigations on behalf of a client could include, but are not limited to:

  • obtaining the QP9 and criminal history, if any, from the prosecution; 
  • obtaining letters from treating doctors detailing the client's condition;
  • Freedom of Information applications to the Medico-Legal Department of the relevant Acute Mental Health Unit in order to acquire the client's mental health history;
  • private psychiatric reports;
  • psycho-social reports from psychologists; and
  • character references and details of any social supports in place for the client from relevant social workers and advocates or others.

Lawyers should advise and assist their clients to apply to Legal Aid Queensland in order to seek funding for a psychiatric assessment and report. If the report contains information to the effect that there may be on the balance of probabilities, a significant relationship between the alleged offence and criminal behaviour, lawyers should refer the issue to the Mental Health Court for determination - where the client is charged with an indictable offence.

In all cases where there is a disability - of any level, lawyers should contact an advocacy service immediately in order to put social support services in place for the client, and, therefore commence addressing the underlying issues in relation to the client's behaviour and needs. 

These support services will be invaluable to the lawyer and the client in any subsequent bail application, and if necessary, to submissions made in mitigation of sentence.