Justice Action

Forensic prisoners

Are denied the usual 'beyond reasonable doubt' provisions of usual criminal defendants. Special hearings operate on standards of evidence more akin to the 'balance of probabilities' used in civil cases.

Are denied the sentence mitigating provisions available to criminal defendants, such as early guilty pleas or expressions of remorse.

Are effectively sentenced to terms in the upper range of what is usually applied to those found guilty of equivalent offences

Are not usually able to engage in plea bargaining

Are denied normal appeals against conviction or sentence, as well as special reviews of conviction under legislation such as Part 13A of the Crimes Act.

Are not eligible for parole, home detention or work release.

Are often subjected to continued restrictions even after completion of the 'sentence', such as transfer to a secure hospital ward or community treatment orders Are sometimes popularly vilified in the same way as convicted criminals but are denied the presumption of reform (e.g. convicted killers like Mark 'Chopper' Read or armed robbers like Bernie Matthews can demonstrate they have become law abiding, responsible citizens - but former forensic prisoners like Peter Kocan are popularly seen as nutjobs for life).

Are often perceived to have 'gotten off on a technicality' or rorted the system - even if they have served more time than they would have if convicted

Are doubly stigmatised as both 'criminals' and 'lunatics' (i.e. criminally insane). Although forensic prisoners are not notionally being punished, but rather 'detained for the protection of themselves and the community', forensic prisoners are effectively punished more harshly than convicted prisoners.

Forensic prisoners

Suffer greater levels of abuse by other prisoners, prison officers and even 'therapists'

Progress slowly, if at all, through the security classification system

Have more trouble than most in complying with prison regulations or lodging official complaints over treatment

Are often forcibly administered stupefying and potentially harmful medications for prison management rather than therapeutic reasons

Are often denied therapies that have helped them in the past (e.g. group therapies such as GROW, religious or spiritual retreats, companion animals, access to preferred counsellors, etc)

Are more likely to be segregated - especially due to excessively cautious assumptions of suicide risk

Suffer greater trauma at being separated from family, carer and community support and have greater difficulty in re-establishing such connections on release

Suffer greater uncertainty regarding the duration of their imprisonment

Can be detained beyond their sentence due to perceived risk of reoffending (even organised crime bosses who will almost certainly reoffend are released at the end of their sentence).

Are denied natural justice in that they are not imprisoned for what they have done, but rather for what some people believe they may do

Most of the suggestions for legislative review are little more than window dressing attempting to hide the increasingly obvious fact that the adversarial trial is a pre-enlightenment, elitist medieval anachronism that is incompatible with a modern, multicultural democracy. The fact is that adversarial trials serve no-one except for the tiny expert elite who are trained in their arcane rituals. Youth courts, drug courts, family courts and (in some jurisdictions) mental health courts are all threadbare patches covering the most egregious abuses of an inherently abusive system, as are procedural modifications relating to competency and mental illness. The categories which might make a defendant eligible for diversion inevitably have arbitrary cutoff points and are as likely to be abused by a well resourced, slightly impaired defendant (e.g. Alan Bond or Dan White (of the Twinkies Defence)) as used by a disadvantaged and seriously impaired one. On the other hand, people like Graham Mailes - with an IQ allegedly less than 60 - can be denied such provisions by perverse decisions from the bench and subjected to the full force of our 'justice' system (see http://www.abc.net.au/rn/backgroundbriefing/stories/1999/62011.htm).

Each offence is as unique as the people caught up in it and any attempt to trim it to fit a legalistic straight jacket is inherently abusive an unjust. Where should we send a 17 year old Aboriginal alleged offender with dual diagnosis? A drug court? A juvenile court? A mental health court? A special Koori court? All four? Sequentially or in joint sitting? Should someone with a transient drug induced psychosis be sent through the same process as someone with AIDS related dementia? Should people whose mental illness allegedly caused them to offend be treated the same way as someone who offended for perfectly 'rational' reasons but is too mentally ill to understand the legal process?

Contrary to the DSM-IV classification system, mental illness is not a series of discrete categories that everyone can be definitively included into or excluded from. Most of us can be determined to fit in one or more categories at different times in our lives depending on our changing internal states, the environment in which we are operating and the cultural norms through which our beliefs and actions are viewed. Its not so long ago that homosexuals were considered to be mentally ill and these days, kids who don't like school are often pathologised as suffering from ADHD (or worse, Oppositional Defiance Disorder, if they don't do what the teacher or doctor tells them to).

The best hope for a criminal justice system that is actually 'just' is to make exceptions from the adversarial trial system for everyone (except, perhaps, for lawyers who consider it their natural environment). The best substitute currently available is conferencing based on restorative justice principles, which - at their best - special tribunals and courts mimic in their functioning. The community members involved in such conferencing are as well equipped as any court or 'expert' to determine issues of capability and culpability from their own life experiences, empathy and imagination. They will find more points of consensus than will usually be allowed in an adversarial trial and will be more likely to find a form of redress that best fits the needs of the stakeholders and the wider community. This should apply regardless of whether or not the defendant (or victim, or witnesses) might be classifiable as insane.

However, no such humane and rational option is currently on the table.


The abolition of executive discretion over the release of forensic prisoners is obviously open to abuse and should be abolished (as doubtless it will be). But to pretend that doing so is all that is required to render the MHRT just and free of political influence is naive in the extreme.

The MHRT will continue to be unduly influenced from Macquarie Street, albeit less obviously, because:

The government controls appointments to the tribunal

Tenure on the tribunal has been progressively reduced from five years to one year by the current government

Although remuneration has increased, so has workload while the number of members has stayed the same and real resources have dropped

Tribunal members - especially the president - generally have political patrons and move in the same circles as ministers

The MHRT currently vetoes far more applications for release of forensic prisoners than the minister does (according to a presentation Duncan Chappell made to the Law Society in February 2004) and although it must notionally give its reasoning on request, as often as not the reasons are hidden in psychiatric reports that are not released to the prisoner due to 'potentially negative therapeutic impact'. Presumably the MHRT believes that to be locked up for reasons and duration unknown has a positive therapeutic impact. Combined with the inability of forensic prisoners to appeal MHRT decisions, this lack of transparency offers a perfect opportunity for ambitious bureaucrats to exercise their 'discretion' in a manner more calculated to gain political favour than to provide just or 'therapeutic' outcomes for forensic prisoners. This is already the case with several other allegedly independent NSW tribunals, commissions and watchdogs.

Although the judiciary is not immune to political and media manipulation (just check Michael Finnane's decisions) the remnants of Westminster separation of powers leave it better able to resist than government appointed tribunals. Judicial decisions are also more transparent and appealable than MHRT ones.

The best answer of those currently on the table would be to:

Abolish vetoes by ministers or governors

Sentence forensic prisoners to maximum terms no greater than those that would apply upon being convicted of the least serious offence consistent with their alleged actions and with the sort of discounts usually applied to those who plead guilty and show remorse

Set a 'minimum' term that would normally be consistent with a non-parole period for such a sentence

Those 'unfit for trial' should be eligible for six monthly reviews by the MHRT. If found fit for trial they should be tried as normal offenders with appropriate discounts for time served.

Those deemed 'innocent due to mental illness' or otherwise held because they are considered dangerous (rather than as punishment) should also receive six monthly reviews by the MHRT with a view to release if considered no longer dangerous

Those made forensic prisoners while serving a sentence should be eligible for judicial re-determination of sentence, with the possible role of the prison regime in their psychological deterioration taken into account

All MHRT decisions should be fully transparent - including clinical assessments

A body should be set up and funded to find suitable accommodation and support for forensic prisoners who may be nearing the end of their sentence

Shortly before expiration of the 'non-parole' period (and every six months thereafter), forensic prisoners should become eligible to apply to the Supreme Court to be released. The MHRT should have no further jurisdiction over them. SC decisions should be subject to usual transparency and appeal

Forensic prisoners should be released unconditionally upon completion of 'maximum' sentence ñ with every effort made to assist their reintegration into the community. Any risk assessments should be carried out in the context of a community setting, not the dysfunctional one that prevails in NSW prisons. Civil commitment proceedings will be more than sufficient for those still deemed to be at risk after release

Alleged victims of forensic prisoners should have a reduced role in influencing sentencing and receiving compensation from the prisoner (as opposed to the state) in keeping with the reduced culpability and criminality of forensic prisoners.

Families and carers should not be considered 'victims' if they have not been offended against. If they consider themselves 'victims', the simple answer is to butt out of the forensic prisoner's life.
To do otherwise would be to increase conflict between forensic prisoners and their families/carers and increase the potential for future oppression and offending. It also would have a 'potentially negative therapeutic impact'.

There should also be many changes made to prison and secure hospital regimes applying to forensic prisoners and also to the roles of psychiatric and psychological experts in court, tribunals and prisons. But these considerations seem to be outside the scope of the current review.