Last updated 1 May 2020
Who can make a reference to the Mental Health Court?
- reference by the chief psychiatrist in relation to a serious offence (s 101)
- reference by a person who is charged with a serious offence, by their lawyer or the Director of Public Prosecutions (s 110)
- reference by the Magistrates Court in relation to a person charged with an indictable offence (s 175)
- reference by the Supreme Court or the District Court in relation to a person charged with an indictable offence (s 183).
There are different requirements, depending on who is making the reference.
Note that references by the chief psychiatrist, the person who is charged or their lawyer, or the Director of Public Prosecutions can only be made in relation to a serious offence as defined.
However, a reference can be made by the Magistrates, District or Supreme Court in relation to any indictable offence, even if it is not a serious offence.
Also, a reference cannot be made in relation to a Commonwealth offence.
Reference by the chief psychiatrist
The chief psychiatrist may make a reference to the Mental Health Court in relation to a person charged with a serious offence only if satisfied that:
- the person may have been of unsound mind when the serious offence was allegedly committed or may be unfit for trial and
- having regard to the report and the protection of the community, there is a compelling reason in the public interest for the person’s mental state in relation to the serious offence to be referred to the Mental Health Court.
Reference by the person charged, their lawyer or the Director of Public Prosecutions
The person charged with a serious offence, their lawyer or the Director of Public Prosecutions may make a reference to the Mental Health Court provided they have reasonable cause to believe that the person:
- was of unsound mind when the offence was allegedly committed (or of diminished responsibility if the charge is murder) or
- is unfit for trial.
Reference by the Magistrates Court
The circumstances in which a Magistrates Court can make a reference to the Mental Health Court are described above under Magistrates Court Powers.
Reference by the District Court or Supreme Court
The circumstances in which a District or Supreme Court can make a reference to the Mental Health Court are described above under District and Supreme Court Powers.
Suspension of criminal proceedings
If a reference is made to the Mental Health Court of a person’s mental state in relation to an offence, the criminal proceedings are suspended until the Mental Health Court has made a decision on the reference or the reference is withdrawn (ss 616, 618 Mental Health Act). The suspension of the proceedings does not prevent a court from making decisions about bail or various procedural steps being taken including the discontinuation of the proceedings.
Applications to withdraw a reference
An application can be made by a person who made the reference to withdraw that reference. The Mental Health Court may refuse the application only if it considers that withdrawing the reference would be contrary to the interests of justice (ss 125–128 Mental Health Act).