4.0 - Initial Considerations for Lawyers
In all circumstances, the first and foremost issue should be whether the police and prosecution have adequately made out the facts charged against the defendant. The type of charge is critical to the procedures with which a lawyer can proceed when representing a client.
As well as bearing in mind the classification of the offence according to section 3 of the Queensland Criminal Code Act 1899 (Qld), it is relevant to consider whether the defendant is subject to an Involuntary Treatment Order or a Forensic Order. If the defendant is subject to such an order the process is set out in Chapter 7 Part 2 of the Mental Health Act 2000 (QLD).
However, where a person is not subject to Chapter 7 Part 2, lawyers should not simply dismiss the existence of a mental illness, in particular its possible impact upon the offending behavior and/or the state of mind of the person at the relevant time. It is also important that the lawyer ascertain whether their client is suffering from a disability, other than mental illness and whether the client currently receives any assistance for:
- An intellectual impairment; or
- Acquired Brain Injury.
Where a lawyer is put on notice that there may exist a 'significant relationship' between the actions or omissions that led to criminal charges, and, the possible existence of a relevant disability, the lawyer should invariably seek an adjournment and bail (depending on the circumstances) in order to investigate the matter of the client's mental state and/or cognitive abilities.
A significant relationship is one where, on the balance of probabilities, an expert psychiatric opinion is required to investigate the following issues:
- Whether the defendant is ‘fit for trial'; and/or
- Whether the defendant was deprived of one or more of the three capacities stipulated under section 27 of the Queensland Criminal Code.
Issues such as fitness to plead and unsoundness of mind, although legal issues, depend significantly on assessments of qualified psychiatrists, and it is therefore prudent to adjourn a matter in order to obtain further advice in relation to the process of obtaining a psychiatric assessment and report for the defendant.
