Citation

Freckelton I. Int. J. Law Psychiatry 2005; 28(4): 375-404.

Affiliation

Law Faculty and Department of Psychological Medicine, Monash University; Melbourne, Australia.

Copyright

(Copyright © 2005, Elsevier Publishing)

DOI

10.1016/j.ijlp.2004.06.008

PMID

16039342

Abstract

Much research in relation to mental illness and the law has concentrated upon when accused persons are entitled to avail themselves of the defence of not guilty by reason of insanity or mental impairment. However, the decision as to when persons found not guilty by such pleas should be released step by step back into the community involves difficult analyses of the risk of recidivism by persons who have committed serious acts of violence whilst mentally ill. This article analyses some 70 cases heard by the Supreme Court of Victoria in Australia since the jurisdiction to make such decisions has been transferred from the executive arm of government to the judiciary. The jurisprudence generated by the Victorian Supreme Court constitutes Australia's most developed law in relation to prediction of dangerousness. This article evaluates the different and subtle dynamics that have influenced the judges in an increasingly sophisticated way to grapple with the phenomenon of mental illness in deciding when persons who have already killed can safely be released from involuntary detention status within the confines of a forensic psychiatric institution back into the general community.