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Legislative Assembly for the ACT: 2002 Week 14 Hansard (10 December) . . Page.. 4132 ..

MR STANHOPE (continuing):

You then have to be able to prove that as a result of that mental impairment you could not control the conduct that led to the commission of the offence. The law proposes that a person who proves that they have a mental impairment and proves that they could not control their actions as a result of that mental impairment should not be held criminally responsible for their actions.

This is not analogous to the so-called drunk's defence. This is not analogous to a person who gets drunk or stoned and as a result of their intoxication loses inhibition or loses control and commits an offence, and says, "I should not be held responsible for my behaviour or my conduct, because at the time I was not responsible. I was so impaired by my consumption of an intoxicating substance-drug or alcohol-that I cannot and should not be morally responsible for my behaviour."

There is a significant difference here. This is of a completely different order. This is about a person who comes to the court with a diagnosed, provable mental impairment, somebody who lives with a condition over which they have no control and who says, "As a result of this impairment, this condition, I cannot control my conduct in certain circumstances, and my conduct may lead me to commit an offence."

It is appropriate that we allow that exception, so that the exception would be that a person with a mental impairment did not know the nature and quality of the conduct, was not aware of what they were doing; or that they did not know the conduct was unlawful or wrong, did not have the capacity to make that judgment; or that if they did know the nature and quality of the conduct or if they did know the conduct was wrong, they nevertheless could do nothing to stop it because of their mental impairment.

These are matters that need to be proved. You cannot just rock up in court and say, "I have a mental condition, and I cannot control my conduct."You have prove these things. You have to convince the jury that you have a mental impairment. Then you have to prove that as a result of that you could not control the conduct you engaged in. The court has to be convinced. That is at the heart of every decision in court. You have to prove the elements.

A number of conditions have been drawn to my attention. One is Tourette syndrome, which leads to uncontrollable verbal outbursts, normally associated with foul and offensive language. Some people cannot help it. It is syndrome medical science recognises. There are some people who cannot control their speech, their outbursts or their language.

When my mother developed Alzheimer's, she went through a very aggressive phase. She swore like a trooper at the drop of a hat-outrageously so-committing a public-order offence, but I would like to think that she would have had the benefit of a provision such as this had it ever come to it.

This is quite a reasonable provision. It is in step with what almost every other jurisdiction in Australia does. It is a humane acknowledgment of what some mental impairment leads to.

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