Law Reform Commission of Western Australia
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Project 69 - The criminal process and persons suffering from mental disorder

Project No. 69

Commenced: 1976
Completed: 1991

The insanity defence had been criticised for failing to provide a practical rule, causing confusion for juries and leading to erratic results. Some commentators had proposed that it be abolished whilst others recognised that the defence is essential to the moral integrity of the criminal law and although requiring reformulation, should remain.

Terms of Reference

In December 1976, the Commission was asked to consider:

  1. to what extent and on what criteria the law should recognise mental disorder or abnormality in a person accused of a criminal offence as a factor affecting his liability to be tried or convicted;
  2. whether there is any need for the continuance of the power in s 662 of the Criminal Code Act Compilation Act 1913 (WA) ... ; 
  3. what procedures should be provided for reviewing the situation of persons who have been ordered to be detained or kept in custody because of their mental condition ... ; 
  4. to consider whether it is desirable for there to be a judicial investigation as to the guilt or innocence of an accused person ... ; 
  5. whether courts of summary jurisdiction require any powers beyond those in Mental Health Act s 36 to permit them to deal fully with accused persons ... ; 
  6. whether it is desirable that the prosecution and defence should be obliged to exchange, before trial, all expert reports ... ;  
  7. whether the courts should have power to obtain psychiatric reports ... ; and
  8. to review Division 6 of Part IV of the Mental Health Act ... . 


The Criminal Law (Mentally Impaired Defendants) Act 1996 (WA) and the Mental Health (Consequential Provisions) Act 1996 (WA) implemented a number of the Commission’s recommendations. The Mentally Impaired Defendants Act established the Mentally Impaired Defendants Review Board, provided that courts should determine whether a defendant should be the subject of a custody order and outlined the criteria and procedure for fitness to stand trial. The Consequential Provisions Act redefined mental illness in the Criminal Code 1913 (WA) and amended the procedure for mental fitness to stand trial and the consequences for an acquittal on account of unsoundness of mind in the Criminal Code. 

Last updated: 31-Jan-2017

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