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8.4.2 - Checklist: Mental Impairment

Click here to obtain a Word version of this document for adaptation.

[This checklist can be used where mental impairment has been raised by the defence. It is designed to be used along with a checklist outlining the elements of the offence in issue. Details of the specific offence will need to be inserted in the appropriate places.

Where mental impairment has been raised following a finding that the accused is not fit to be tried, references to finding the accused "guilty of [insert offence]" must be changed to "committed the offence of [insert offence]"]

Two matters the defence must prove on the balance of probabilities:

1. That the accused was suffering from a mental impairment at the time s/he did the acts said to constitute the offence; and

2. That when the accused did those acts, the mental impairment affected him/her to such an extent that s/he either:

  1. Did not know the nature and quality of what s/he was doing; or
  2. Did not know that what s/he was doing was wrong.

 

Mental Impairment

1. Has the defence proven, on the balance of probabilities, that the accused was suffering from a mental impairment at the time s/he did the acts said to constitute the offence of [insert offence]?

If Yes, then go to 2.1

If No, then the Accused is guilty of [insert offence]
(as long as you are satisfied that the prosecution has proved
all of the elements of that offence beyond reasonable doubt)

Effect of Mental Impairment

2.1 When the accused did the acts said to constitute the offence, did the mental impairment affect him/her to such an extent that s/he did not know the nature and quality of what s/he was doing?

If Yes, then the Accused is not guilty of [insert offence]
because of mental impairment (as long as you also answered
yes to question 1, and are satisfied that the prosecution has proved
all of the elements of that offence beyond reasonable doubt)

If No, then go to 2.2

2.2 When the accused did the acts said to constitute the offence, did the mental impairment affect him/her to such an extent that s/he did not know that what s/he was doing was wrong?

Consider: Could the accused not reason, with a moderate degree of sense and composure, about whether his/her conduct, as perceived by reasonable people, was wrong?

If Yes, then the Accused is not guilty of [insert offence]
because of mental impairment (as long as you also answered
yes to question 1, and are satisfied that the prosecution has proved
all of the elements of that offence beyond reasonable doubt)

If No, then the Accused is guilty of [insert offence]
(as long as you also answered No to question 2.1, and
are satisfied that the prosecution has proved all of the elements
of that offence beyond reasonable doubt.)

Last updated: 11 December 2012

See Also

8.4 - Mental Impairment

8.4.1 - Charge: Mental Impairment