6 September 2007

Are You Mentally Impaired? If you are, you may be eligible...

| asp
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… to act in a way that is dangerous to yourself and the community without fear of punishment. To find out your eligibility, simply attempt to strangle one of your friends with a piece of cord and contact Police for a referral to your nearest judicial dispensary.

Using this logic, you could probably do anything you want (smash statue of Al Grasby, drive tank through Garema Place and into Legislative Assembly?) and claim that your brain was stuffed that day. Well even if it was, that should be no excuse. What’s the bet that idiot who knocked people over in Civic will try to argue this?

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That much even I know, Jemmy. What worries me is that, in general and in practice, severe consequences (even less predictable ones) are seen as aggravating factors when the same conduct without the consequences would probably never make it to court.

“trying to work out the relevance of consequence to criminality”. It’s whether it could be foreseen or not, and so whether your action could be negligent or endangering, despite lack of intent.

ps – None of my previous post diminishes the relevance of consequence to the victim. It’s just that not every wrong has a wrongdoer and not every injury has a remedy.

The law punishes people because they do something wrong. That requires a wrongful act and a relevant intention. If someone’s mental processes are so disturbed that, for example, he sees another person as an alien attempting to destroy society or whatever, and they take out the “alien” with xtreme prejudice, that is an objectively wrongful act. But the person has no intent and has to be acquitted.

It’s not all that far different from any random act that ultimately causes unexpected harm. Suppose I am allowed the shoot magpies (if only) and take a pop at one, hit it, and it flies into the windscreen of a car whose driver is unsighted and crashes, causing death. Now I might or might not be liable in damages for negligence, but I can hardly be said to have intended to to cause a death or a crash or any form of harm.

Imprisoning offenders for punishment is one thing. Getting off the streets, unless and until treated, people who act dangerously because of their mental states is another. The latter is primarily for protection, and the former is for punishment, with incidental protection.

(I must say I have often driven myself into ever-decreasing mental circles trying to work out the relevance of consequence to criminality. The law deals adequately with attempts, but not so well with, say, a minor assault that leads to disproprtionate consequences for factors unknown to and uncntrollable by the perpetrator).

Too often the excuse used by people too chicken-shit to stand up and take it on the chin.

In this current world of nil consequence, claiming mental impairment is more common than taking asprin for a headache.

Regardless of their condition, the weight of the law should be taken on the ‘body’ responsible for the crime, regardless of if the head was on Mars at the time or not, if anything, for the protection of the general community, and for the individual.

Felix the Cat7:15 pm 07 Sep 07

Asp – you should know not to believe everything you read in the media. As a generalisation they are habitual at not letting the facts get in the way of a good story.

If he was suffering from schizophrenia, then I agree. The right decision was made. Some reports made it sound like he was claiming to be impaired on that day and were vague about the cause.

Having some familiarity with this case, i can say the young man was, and is, suffering from schizophrenia.
The judge made the right call in this case, and indeed the DPP accepted his decision. Nothing would be gained by sending him to jail, except aggravating his mental illness.
He remains detained at a secure mental health facility, not canberra hospital, and will remain there until the mental health tribunal decides he is fit for release.
People are always complaining that our jails are clogged with mentally ill people who are locked up.
Our judicial system gets a lot of decisions wrong, but this was not one of them.

“reason of mental impairment’, aka ‘insanity’”

Mental impairment is not simply insanity by another name. It is a broad term which can cover post-natal depression, the mental effects of drug abuse, automatism and more. Does the person have a genuine mental illness or was it a temporary impairment as reports suggest. Reports say he was impaired “on the day” which implies he is no longer impaired. My point is someone doesn’t suddenly go impaired except in cases of automatism (severe sleep walking) or where they have suffered a trauma to the brain. Neither has been mentioned as a reason. There has to be real reasons. If we all did crazy stuff and tried to say we were impaired on the day, we could get away with all soughts of things.

“verdict of ‘not guilty by reason of mental impairment’, aka ‘insanity’. This verdict has been an established part of English law for hundreds of years”
Well, by hundreds, you surely mean 207 years. The basic defence of insanity has existed since ancient times. And while King Edward did declare that a person was insane if their mental capacity was no greater than that of a “Wild Beast”, this still did not establish it properly in English law. The first time mental impairment was established in English law was with the Criminal Lunatics ACT of 1800. This was followed by McNaughten Rules from the House of Lords in 1843.

“The issue of whether or not someone is ‘insane’ at the time of offending is decided by a jury of laypeople, not the judge.”
This is modern times boomacat. So you should know that very few trials these days use juries. On this occasion “Justice Terry Connolly found that the man was a danger to himself and the community the day of the attack”. My information was that this case was not heard before a jury. Having spent considerable time in the courts, this is the norm especially in a small jurisdiction like the ACT.

“detained in a mental health facility indefinitely, only to be released with the approval of the Mental Health Tribunal.”
Two things here. Firstly, mental health facility too often means Canberra Hospital. That’s where the cops took him this time. Who knows where he is now, probably still there in the nut job dept.
Secondly, the number of nut jobs let out by mental health officials who should not have been is concerning.

This man received the ‘special’ verdict of ‘not guilty by reason of mental impairment’, aka ‘insanity’. This verdict has been an established part of English law for hundreds of years.

To describe this as offending “without fear of punishment” is incredibly ignorant. This person will be detained ‘at her majesty’s pleasure’, in other words, detained in a mental health facility indefinitely, only to be released with the approval of the Mental Health Tribunal. Even if the defendant was released, he/she would be subject to the supervision of the Mental Health Tribunal probably for the rest of their lives.

The issue of whether or not someone is ‘insane’ at the time of offending is decided by a jury of laypeople, not the judge. So to use it as another ‘oh woe is me our judiciary is pathetic’ is incorrect.

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