Phil Walsh murder case will follow longstanding SA court process on mental illness cases

ANALYSIS: Cy Walsh has denied he murdered his famous father, claiming he was mentally incompetent. What does that mean for the case going forward?

Analysis - Chief Court Reporter Sean Fewster

2 min read

December 11, 2015 - 1:24PM

IT is a narrative flourish seen so often in courtroom dramas and psychological thrillers that it now has a bad name — the so-called “insanity defence”.

Hollywood has made it almost a byword for “get out of jail free”, but the fact is mental incompetence is a serious issue dealt with regularly by the courts.

In South Australia, the legal path through mental impairment is chartered by a 32-part section of the Criminal Law Consolidation Act (1935).

Section 269 provides judges and lawyers with guidelines for everything from how to enter a client’s plea to how they are best sentenced.

Under state law, persons who plead guilty by virtue of mental incompetence still face trial — however those proceedings differ from the norm.

Instead of witnesses, the court hears evidence from psychological and psychiatric experts as to the mental health of a defendant.

Defendants may argue they were incompetent at the time the offence was allegedly committed or that they are not mentally well enough to face an ordinary trial.

Should a court be satisfied of a defendant’s incompetence, it will find the person not guilty but rule it is satisfied the “objective elements” of the offence have “been made out”.

In simple terms, this means a defendant committed the offence as alleged but cannot be convicted because they were unable to appreciate the wrongfulness of those actions.

Notable mental impairment cases include that of Donato Corbo, who shot and killed Luc Mombers and his in-laws before grievously wounding two police officers.

Beverly Eitzen killed her disabled son, Peter, in 2009 while Frank Harton tried to kill his son, Chris, to “spare others the burden of his care”.

The law is not only for murder, however — carjacker Jason Norman Bugg and cannibal attacker Trevor Hugh Giles were each found mentally incompetent.

Defendants found not guilty, by reason of mental incompetence, by a court are subject to what is known as a “limiting term”

That term is a period under mental health supervision equivalent to the jail term a well person would receive.

Limiting terms, which can be for life, are served in a secure facility, in the community or in a combination of both.

The thought of mentally ill offenders being released is a confronting one for the families of victims, and the laws governing their liberty have come under fire from judges.

Yet it remains a fact, uncomfortable for many, that such people are eligible to be considered for release if mental health experts agree they no longer pose a risk to the community.