magistrates court
court diversion program

Introduction | Program outcomes | Program Description 
Program Management | Program Staff | Program Location    
Key Features | Program Steps | Contact Details

Introduction

The Magistrates Court Diversion Program has been operating since June 1999. It commenced as a pilot and in June 2001 the Government made a commitment to fund the program on a recurrent basis following an independent evaluation by the Office and Crime Statistics and Research (www.ocsar.sa.gov.au) that found that the program was having a positive impact on reducing re-offending. The Court was initially called the Mental Impairment Court but over time this name has been used less and less and both the Court and the Program are now known simply as the Magistrates Court Diversion Program.

Eligible individuals are adults who have been charged with certain minor or summary offences to be heard in the Magistrates Court of South Australia, and who have impaired intellectual or mental functioning arising from:

·         mental illness

·         intellectual disability

·         a personality disorder

·         acquired brain injury, or

·         a neurological disorder including dementia.

For information about the number of participants in the Program and the nature of their mental impairment, the charges they faced and the Court outcomes, please refer to the CAA Annual Report.

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Program Outcomes

The Program aims to achieve the following outcomes for people with a mental impairment   

1)  To prevent further offending behaviour by providing access to early assessment and interventions that address mental health or disability needs of defendants and their offending behaviour.  

2)  Provide assistance to the court in the identification and management of people with a mental impairment in the court system. 

3)  Provide a diversion option in the Magistrates Court, for people who may otherwise plead a mental impairment defence under section 296 of the Criminal Law Consolidation Act (1935). 

The following broader outcomes are also anticipated:

•             the development of best practice techniques in dealing with mentally impaired persons, specialised court based personnel with in-depth knowledge of court processes, mental impairment, service providers and treatment regimes who can advise on the management of people with an impairment;

•       simplified and streamlined processes for dealing with people with a mental health and/or disability issue who come before the court;

•       improved interface between health and justice systems, leading to shared outcomes for persons with a mental impairment and increased understanding of each sector and their systems;

•            collection of data that will allow determination of trends and projections, and the impact on demand for services;

•            incentives and opportunities for support services to respond pro-actively to issues impacting on their clients involved in the justice system; and

•       a greater understanding amongst service providers, and the public generally, of the needs of people with a mental illness or disability who have committed an offence, and issues impacting on the behaviour leading to that offence.

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Program Description 

The Program provides an opportunity for eligible individuals to voluntarily address their mental health and/or disability needs and any offending behaviours, while legal proceedings are adjourned for approximately 6 months. During this time the program staff link the individual to relevant services in the community and monitor their progress. By facilitating the involvement of community based service providers in addressing the behaviours arising from impaired intellectual or mental functioning, which are linked to the offending, the program improves the responses of both the criminal justice system and the health and disability service system.

The person’s involvement and progress is reported back to the court and the Magistrate, police and defence lawyers may use this information in dealing further with the case.

The Magistrate reviews the individual every two months to reinforce and reward compliance with treatment regimes and lifestyle changes and to take alternative action if the interventions are not working or if the individual is not complying with the interventions. The Magistrate may excuse the defendant from appearing in court for their reviews; however, all participants are required to appear for a final determination at the end of the adjournment period.

At the final hearing, the Magistrate makes a determination taking into account the participant’s involvement in the Program.  Depending on the nature of the offences, the Magistrate may dismiss the matter or convict without penalty. However the fact that a person has performed badly or has failed to make satisfactory progress is not relevant to the sentencing process. (Section 10(6) Criminal Law (Sentencing Act) 1988).

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Program Management

Representatives from the criminal justice system and the Department of Health provide input into the program policy and development through participation on the Steering Committee, which is chaired by the Deputy Chief Magistrate, Dr Andrew Cannon. A Service Providers Operations Group, which includes court personnel, police, lawyers and a range of service providers from the health and disability sector, is also convened quarterly to share information and problem solve issues as they may arise.

An information management system has been developed to:

• assist the staff in managing participants as they move through the Program; and  
  
• gather data for Program evaluation and performance monitoring.  

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Program Staff

The Program employs a number of court-based personnel.

The Intervention Programs Manager holds responsibility under the Bail Act (S 21B) and the Criminal Law Consolidation Act for the general oversight of the Program and co-ordinates the implementation of various court orders. Ms Sue King currently holds this role and she has delegated her functions to the program staff that are organised into two teams: the Clinical Advising team and the Clinical Liaison team.

• There are four Clinical Advisors in the Clinical Advising team; they are psychologists with expertise in forensic and general psychological assessment. They undertake assessments of persons referred to the program and provide reports and expert advice to the Court regarding an individual’s suitability for the program and their needs. They also develop an intervention plan for the individual and that plan forms the framework for the involvement of the Clinical Liaison team.  There is a Co-ordinating Psychologist who supervises the work of the team.  
  
• There five Clinical Liaison Officers in the Clinical Liaison team and they have mainly a social work or related human service background. A Clinical Team Leader leads this team and they are responsible for linking individuals with relevant services and maintaining good working relationships with service providers to ensure they understand the aims of the program and allow access to the services they provide.  
  
• There are also 1.5 Administration Officers to support the Program staff.

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Program Location

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Key features of the Magistrates Court Diversion Program

·         The program is at its most effective when an individual is referred as early as possible and ideally at the time charges are laid.

·         Referral to the Program can be made by the individuals themselves or by an interested third party such as a police officer, solicitor, case manager, guardian, Magistrate, Police Prosecutor, service provider or any other party with a genuine interest their welfare.

·        To be accepted onto the Program an individual must have a mental impairment and have been charged with a summary or minor indictable offence. There needs to be a causal link between the impairment and the offending. 

·         Participation on the program is voluntary and the persons referred have the court procedures and treatment and justice options fully explained prior to proceeding with an assessment.  The person’s legal representative can be present if this is requested.

·         If the person consents, they undergo a preliminary assessment of their functioning carried out by one of the Clinical Advisors employed by the court. The Clinical Advisor also gathers relevant pre-existing reports to determine whether the person has a mental impairment.

·         A preliminary report containing recommendations with regard to eligibility and mental health or disability needs is given to the Magistrate.

·        The Magistrate will use the report to decide whether to accept a person onto the Program and whether to adjourn the court proceedings for a period that will allow the person to undergo an intervention program. 

·        There is no formal requirement to plead guilty to any offence, to be accepted onto the Program.  However, the Court needs to know that the objective facts are not under dispute nor likely to be contested.

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Program Steps

  Referral Process

·        For all participants, referral is activated at the Magistrates Court hearing at which s/he first appears after having been charged with an offence(s). The individual’s solicitor, police, the Magistrate, Police Prosecutions, a guardian or other person known to the individual or the individual themself, may initiate the referral. 

·        Referrals may also be made by workers from agencies that provide treatment or supports to the individual.  Where the individual is referred by Mental Health Services, individuals assessed by Assessment and Crisis Intervention Service (ACIS) to require detention under the Mental Health Act, will be transferred to an approved treatment facility rather than be referred to the Program.

·        The person, or person’s guardian, is required to consent to assessment and participation in the Magistrates Court Diversion Program and to the exchange of information between treatment and service providers.  If consent is not given, the person will be referred to the normal court process where any defence may of course include the Mental Impairment Provisions (Part 8A) of the South Australian Criminal Law Consolidation (Mental Impairment) Amendment Act 1995, in relation to his or her mental competence to commit a criminal offence.

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Court Process

·        Once the referral is activated (a Referral Form is completed at time of the hearing), the court procedures are explained to the individual, along with the options available to them for the handling of their court matters and for their access to treatment through participation in the Program.  The individual’s legal representative may be present at this discussion if requested.

·        If the individual consents to proceed with the Program, then a preliminary assessment is arranged.

·        If the individual does not consent to proceed with the Program, his/her matters are returned to the normal court process.  The individual retains the option of pursuing a defence through Section 269 of the Criminal Law Consolidation Act.

·        A preliminary assessment is conducted by a Clinical Advisor who is a registered psychologist.  The purpose of this assessment is to identify whether the individual has a mental impairment and to outline his/her treatment needs.  The Clinical Advisor will liaise with service and treatment providers and with other Program staff, in order to develop a Program Plan, which follows from the preliminary assessment. 

·        The individual then appears before a Magistrate.  The Magistrate, the individual’s legal representative and Police Prosecutions are provided with a copy of the report.

·        The preliminary assessment will indicate whether the individual has a mental impairment and whether involvement in the Program would be beneficial. The Magistrate considers the preliminary assessment report and recommendation and decides whether to accept the person onto the program and to adjourn the court proceedings to allow the person to obtain treatment in accordance with the Program Plan.

·        If the preliminary assessment shows that the individual does not have a mental impairment and/or the Magistrate does not deem him/her eligible for the Program, their matters are returned to the normal court process.  The individual retains the option of pursuing a defence through Section 269 of the Criminal Law Consolidation Act.

Treatment and Review Process

·        Eligible participants are then assigned a Clinical Liaison Officer who will support and advise participants and service providers, and liaise with them in regard to service provision and the participant’s progress.

·        Regular court reviews are held (usually approximately every two months) which the participant attends.  Program staff provide a written report on the participant’s progress and success in treatment.  There are usually two court reviews.

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Finalisation

·                    At the second review the Magistrate will  decide when to require the participant to return to Court to finalise the matters. A final hearing is usually set about two months following the second review (six months from commencement on the program).    At this hearing, Program staff provides another written report, which summarises the participant’s involvement and progress throughout their time with the Program.

·                    Depending on the progress made and the nature of the offences, the Magistrate may dismiss the matter or convict without penalty. Other sentences may involve a fine or a bond.  However the fact that a person has performed badly or has failed to make satisfactory progress is not relevant to the sentencing process. (Section 10(6) Criminal Law (Sentencing Act) 1988.

·                    If the matter is not dismissed or some sort of penalty is likely, the individual retains the option of pursuing a defence through Section 269 of the Criminal Law Consolidation Act.

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Contact details

Magistrates Court Diversion Program
Adelaide Magistrates Court
260-280 Victoria Square
PO Box 6115 Halifax Street
Adelaide SA 5000
Phone: 61 8 8204 8611
Fax: 61 8 8204 8620
E-mail: MCDP@courts.sa.gov.au

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