1. Fitness for trial

Updates and background for this project (Digest)

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• Introduction
• When and how the question of fitness arises
• The meaning of fitness to be tried
• The role of the Mental Health Review Tribunal
• Procedures ancillary to the determination of fitness
• Fitness in local courts

1.2 The common law continues to govern the test of fitness to stand trial in NSW. However, Part 2 of the Mental Health (Forensic Provisions) Act 1990 (NSW) (“the MHFPA”) contains provisions applying to fitness determinations and the consequences of such determinations in criminal proceedings in the Supreme and District courts. Part 3 of the MHFPA makes separate provision in relation to Local Court proceedings for diverting defendants who appear to have a mental illness, developmental disability or other mental condition away from the criminal justice system in appropriate circumstances.⁶ Consequently, this chapter applies only to proceedings in the Supreme and District courts.⁷

1.3 This chapter examines five principal issues:

• when and how the question of fitness arises during a trial;
• the meaning of fitness to be tried;
• the forum for determining fitness;
• the procedures for determining fitness; and
• whether or not fitness procedures should be adopted in the Local Courts.

1.4 A defendant is presumed to be fit to be tried unless and until a question as to his or her fitness is raised.⁸ That question may be raised by any party to the proceedings, or by the court.⁹ At common law, the court has a duty to consider the question of the defendant’s fitness if there is material before it that raises the issue, even if neither the defence nor the prosecution asserts that the defendant is unfit.¹⁰ Additionally, a legal practitioner may have an ethical obligation to raise the issue of fitness, even contrary to the client’s instructions, as part of the overriding duty to the court.¹¹

1.5 While it is preferable to raise the question before arraignment, it may be raised at any time during the proceedings,¹² including at sentencing,¹³ or retrospectively on appeal.¹⁴ If a question of fitness is raised, the court must hold an inquiry into the defendant’s fitness,¹⁵ unless the question is not raised in good faith,¹⁶ or the court discharges the defendant.¹⁷ A question is raised in good faith unless “no reasonable jury, properly instructed, could find that the accused was not fit to be tried”.¹⁸ The court may decide not to conduct a fitness inquiry and instead discharge the defendant if the trivial nature of the charge or offence, the “nature of the person’s disability” or any other matter render it inappropriate to inflict any punishment.¹⁹

1.6 A judge sitting alone²⁰ determines the question of the defendant’s fitness on the balance of probabilities²¹ . The judge must give reasons for his or her decision.²² While the defendant must be represented by a legal practitioner unless the court otherwise allows, the inquiry is not conducted in an adversarial manner and no party bears the burden of proof.²³

1.7 The question of fitness is not determined once and for all: the fact that a question of fitness has been raised in the proceedings does not preclude the question of the defendant’s fitness being raised again later in the same proceedings.²⁴

Issue 6.1

Should the MHFPA expressly require the court to consider the issue of fitness whenever it appears that the accused person may be unfit to be tried?

The Presser standards

1.8 The MHFPA does not define fitness to be tried. At common law, a person is fit to plead if he or she is sufficiently able to comprehend the nature of the trial so as to make a proper defence to the charge.²⁵ In R v Presser, Justice Smith developed the common law test by identifying “minimum standards” that the accused must meet before he or she was considered to be mentally fit to stand trial within the meaning of the then Crimes Act 1926 (Vic).²⁶ The Presser “standards” are now applied throughout Australia to determine whether the accused person’s cognitive or mental health impairment renders him or her unfit for trial, including for the purposes of the MHFPA.²⁷

1.9 The Presser standards require that the accused be able to:

• understand the offence with which he or she is charged;
• plead to the charge;
• exercise the right to challenge jurors;
• understand generally the nature of the proceeding as an inquiry into whether he or she committed the offences charged;
• follow the course of proceedings so as to understand what is going on in a general sense;
• understand the substantial effect of any evidence that may be given against him or her;
• make a defence or answer to the charge;
• where the accused is represented, give necessary instructions to counsel regarding the defence, and provide his or her version of the facts to counsel and, if necessary, the court; and
• have sufficient mental capacity to decide what defence he or she will rely on and to make that known to counsel and the court.²⁸

1.11 The minimum standards set out in Presser do not require that the accused be conversant with court procedure or understand the law governing the case.³⁰ Nor do they require that the accused have sufficient capacity to make an able defence or to act wisely in his or her best interests.³¹ As the Court of Criminal Appeal has pointed out, to set the test at some such level would be inappropriate.³²

Are the Presser standards sufficient?

1.12 In other jurisdictions, considerations distinct from, or additional to, the Presser standards are relevant to determining a defendant’s fitness for trial. We seek views as to whether the following issues should supplement the Presser standards:

• the ability to make rational decisions;
• the ability to participate effectively in proceedings; and/or
• deterioration under the stress of trial.

1.13 The standards articulated in Presser look to the defendant’s understanding of various matters relating to the proceedings and to some associated functional skills, such as the ability to instruct advisers. They do not expressly refer to the capacity of accused persons to make rational decisions in the light of the understanding that they do have. In contrast, the legislative definition of unfitness in South Australia does incorporate such references. It provides:

A person is mentally unfit to stand trial on a charge of an offence if the person’s mental processes are so disordered or impaired that the person is –

(a) unable to understand, or to respond rationally to, the charge or allegations on which the charge is based; or

(b) unable to exercise (or to give rational instructions about the exercise of) procedural rights (such as, for example, the right to challenge jurors); or

(c) unable to understand the nature of the proceedings, or to follow the evidence or the course of the proceedings.³³

1.15 A focus on the accused person’s rationality is also apparent in the fitness tests adopted in some European jurisdictions. For example, courts in Jersey determine fitness by reference to factors that equate to the Presser standards, and to “the ability of the [defendant] to … make rational decisions in relation to his participation in the proceedings (including whether or not to plead guilty), which reflect true and informed choices on his part”.³⁷ That approach is intended to ensure that the defendant is able to participate effectively in the proceedings, as required by the guarantee of a fair trial in the European Convention on Human Rights.³⁸

1.16 Justice Smith intended that the Presser standards should be applied in “a reasonable and commonsense fashion”, not in “any over-literal sense”.³⁹ The standards are articulated in terms that are capable of allowing courts to take into account, in determining the defendant’s understanding or capacity, his or her ability to make rational decisions in relation to participation in the trial proceedings.⁴⁰ However, this is not explicit. A defendant who cannot make rational decisions in relation to participation in the proceedings may nevertheless be able to satisfy the minimum standards set in Presser; for example, where he or she understands the indictment but insists on making an irrational answer to it.⁴¹ Our preliminary view is that this is unsatisfactory because it sets the requirements for a fair trial too low.

1.17 We would, therefore, propose two alternative legislative reformulations of the Presser standards. One is to add a general requirement that the accused should be able to make rational decisions in relation to his or her participation in the trial before being considered fit for trial. The other is to amend relevant individual standards to indicate the need for rational decision-making in respect of those standards, along the lines of the South Australian legislation set out above.⁴² It is important to note that, since a “rational” decision does not have to reach any predetermined standard, the addition of this requirement would not affect the present law that the accused need not act in his or her best interests or with an understanding of the law applicable to the case.⁴³

Effective participation in proceedings

1.18 An alternative approach may be to subsume the Presser standards into a general principle that the accused should be able to “participate effectively” in the trial before being considered fit. The Scottish Law Commission has pointed out that the “idea of effective participation captures the notion of full or rational appreciation by the accused of the proceedings”.⁴⁴ The Law Commission argues that this justifies recasting the fitness test in terms of a general principle that the accused should be able to participate effectively in the proceedings, followed by a non-exhaustive list of standards (resembling those set out in Presser) that would have to be met for the defendant to be considered competent.

1.19 While the concept of a general principle supported by non-exhaustive standards is attractive, this proposal is not without some disadvantages. First, the “effective participation test” runs the risk of over-inclusiveness. For example, the European Court of Human Rights has held that a young person, so intimidated by the experience of a public trial that he was unable to consult or cooperate with his lawyers for the purpose of giving them information about his defence, was unable to participate effectively in the criminal proceedings and thus was denied a fair trial.⁴⁵ It might also be arguable that an accused person lacks the capacity to participate effectively in the trial by reason of poor educational attainment or a disadvantaged social background.

1.20 Secondly, even if the effective participation test were restricted to contexts where the accused person’s cognitive or mental health impairment is in issue, its application would be uncertain. In particular, effective participation may require a level of knowledge or competence on the part of the accused that goes beyond rational participation.

Deterioration under the stress of trial

1.21 In the United States, courts must consider whether the defendant “is sufficiently stable to enable him [or her] to withstand the stresses of the trial without suffering a serious prolonged or permanent breakdown”,⁴⁶ as well as the defendant’s capacity to refrain from irrational behaviour during trial. Clinical factors that are relevant in this regard include “the defendant’s tendency towards violence, the presence and extent of acute psychosis, suicidal depression, regressive withdrawal, and organic deterioration”.⁴⁷

1.22 In a similar vein, the Mental Health Act 2000 (Qld) provides that fitness for trial means that a person is fit to plead, to instruct counsel and to “endure” the trial, “with serious adverse consequences to the person’s mental condition unlikely”.⁴⁸

1.23 Arguably, the Presser standards can currently accommodate deterioration under the stress of the trial. In Kesavarajah, the High Court made it clear that the standards are applied having regard to the length of the trial.⁴⁹ This means that the court does not judge the accused person’s fitness solely by reference to his or her condition immediately before the commencement of the trial, but, where relevant, takes into account the condition in which the accused will be, or is likely to be, during the course of the trial. The rationale is that “[t]here is simply no point in embarking on a lengthy trial with all the expense and inconvenience to jurors that it may entail if it is to be interrupted by reason of some manifestation or exacerbation of a debilitating condition which can affect the accused’s fitness to be tried”.⁵⁰ Further, if the defendant’s condition does deteriorate during the trial, the question of fitness can always be raised again at that stage.⁵¹

1.24 We raise for consideration the issue as to whether deterioration during the course of a trial should be specifically articulated as a criterion for determining fitness for trial.

Issue 6.2

Do the Presser standards remain relevant and sufficient criteria for determining a defendant’s fitness for trial?

Should the test for fitness to stand trial be amended by legislation to incorporate an assessment of the ability of the accused to make rational decisions concerning the proceedings?

If so, should this be achieved by:


(a) the addition of a new standard to the Presser formulation, or

(b) by amendment of relevant standards in the existing formulation?

As an alternative to the proposal in Issue 6.3, should legislation identify the ability of the accused to participate effectively in the trial as the general principle underlying fitness determinations, with the Presser standards being listed as the minimum standards that the accused must meet?

Should the minimum standards identified in Presser be expanded to include deterioration under the stress of trial?

Should the minimum standards identified in Presser be altered in some other way?

1.25 If the court finds the defendant fit to be tried, the criminal proceedings against him or her commence or continue in the ordinary way.⁵² However, if the defendant is found unfit, the court must refer the defendant to the Mental Health Review Tribunal (“MHRT”).⁵³ The defendant then becomes a “forensic patient”.⁵⁴ Pending a decision of the MHRT, the court may adjourn proceedings, grant the defendant bail, remand the defendant in custody or may make any other order that the court considers appropriate. Except for the purpose of taking those actions, proceedings against the defendant must not be recommenced or continued.⁵⁵

1.26 On receipt of the reference from the court, the function of the MHRT is to determine, as soon as practicable, whether the person will, during the period of 12 months after the finding of unfitness, become fit to be tried for the offence. The determination is made on the balance of probabilities.⁵⁶

1.27 If the MHRT finds that the person will not become fit to be tried within 12 months, it must notify the court and the Director of Public Prosecutions (“the DPP”) of its determination.⁵⁷ The court must, as soon as practicable, conduct a special hearing⁵⁸ unless the DPP advises that no further proceedings will be taken against the defendant.⁵⁹ If the DPP so advises, the court must order that the defendant be released.⁶⁰

1.28 Alternatively, if the MHRT finds that the person will become fit to be tried within 12 months from the date of the court’s finding of unfitness, it must also determine whether or not the defendant has a mental illness or a “mental condition for which treatment is available in a mental health facility” and whether the defendant objects to being detained in a mental health facility.⁶¹ The MHRT must notify the court of its determination.⁶² The court may then grant the defendant bail or, if the MHRT has determined that the defendant has a mental illness or mental condition, may order that the person be detained in a mental health facility or other place for a period not exceeding 12 months.⁶³ The defendant continues to be a forensic patient.⁶⁴

1.29 As soon as practicable after the court order for bail or detention is made, the MHRT must again review the defendant’s case and determine whether the person has become fit to be tried; and whether the safety of the defendant or of any member of the public would be seriously endangered by the defendant’s release.⁶⁵ If the MHRT is of the opinion that the person has become fit to be tried, it must notify the court and the DPP.⁶⁶ If the MHRT is of the opinion that the defendant remains unfit, but that his or her release would not seriously endanger the safety of the defendant or any member of the public, it must order the defendant’s release.⁶⁷

1.30 The MHRT must conduct a similar review of the defendant’s case at least once every six months.⁶⁸ The MHRT must notify the court and the DPP if it finds either that the defendant has become fit, or that the defendant has not and will not become fit within the relevant 12 month period.⁶⁹

1.31 If the court is notified that the defendant has become fit, the court must hold a further inquiry into the defendant’s fitness unless it is advised by the DPP that no further proceedings will be taken against the person, in which case the Minister for Health must release the person.⁷⁰ If the court finds the defendant fit, criminal proceedings may be commenced or continued in the ordinary way.⁷¹ If the court finds the defendant unfit, and he or she has been an inmate in a correctional facility or a forensic patient in a mental health facility for a period in excess of 12 months, the court must conduct a special hearing. For defendants who have been detained for less than 12 months, the court may conduct a special hearing, or order that the defendant be returned to custody.⁷²

1.32 If the court receives notification from the MHRT that the defendant will not become fit within the relevant 12 month period, the court must, as soon as practicable, hold a special hearing unless the DPP advises that no further proceedings will be taken against the defendant in respect of the offence charged (in which case the defendant is released).⁷³

A simplified procedure?

1.33 The above discussion highlights the complexity associated with determining a defendant’s fitness. Referring an unfit defendant back and forth between the court and the MHRT involves duplication resulting in delay and expense. It also increases stress for defendants, victims and other people connected with the case.⁷⁴ We suggest that duplication could be minimised by assigning certain functions exclusively to either the court or to the MHRT.

1.34 In most other Australian jurisdictions, the question of fitness is determined exclusively by the court.⁷⁵ In Western Australia, the question of fitness is determined by the presiding judicial officer.⁷⁶ If the defendant is found, on the balance of probabilities, to be unfit, the presiding judicial officer must determine whether the defendant is likely to become fit within six months.⁷⁷ If so, proceedings may be adjourned for up to six months,⁷⁸ after which the defendant is presumed to remain unfit.⁷⁹ If the defendant is unlikely to, or has not, become fit within six months, the court, “without deciding the guilt or otherwise of the accused”, must quash the indictment or committal and must either release the person, or make a custody order.⁸⁰ In cases before the District and Supreme Courts, the making of those orders does not preclude the accused being indicted or tried at a later date.⁸¹ In courts of summary jurisdiction, the orders are a bar to further prosecution.⁸²

1.35 In Queensland, a specialist Mental Health Court investigates issues concerning fitness to be tried, as well as the defences of “unsoundness of mind” and diminished responsibility.⁸³ If the Mental Health Court finds a person unfit to be tried, it must make a determination as to whether that unfitness is temporary or permanent.⁸⁴ The court then decides what order(s) to make in respect of the person.⁸⁵ Criminal proceedings are discontinued in respect of people found permanently unfit for trial, or who remain unfit for trial up to the statutory time limit.⁸⁶ The Mental Health Court does not displace the ordinary criminal process, but dovetails with it.

1.36 There are advantages to the court being the final arbiter of fitness to be tried. Fitness is a legal concept, not a medical diagnosis, and has legal, not clinical, implications. A finding of unfitness has the effect of removing the defendant from the ordinary criminal justice process. Taking this view, it would appear that a finding of unfitness should be made exclusively by a court, with input from expert witnesses as appropriate, rather than by the MHRT. Moreover, since a question of fitness may arise in the course of a trial, it would be more convenient for the question to be resolved in the forum in which it arises. Submissions to a recent review asserted that current court-based procedures work well in practice, especially since fitness has come to be determined by a judge alone.⁸⁷

1.37 On the other hand, decisions about the subsequent management of the person involve considerations about the person’s clinical needs, possible recovery, risk management and placement in an appropriate community setting or facility. These decisions relate to the particular expertise of the MHRT in the area of mental health and in the protection of the community.⁸⁸ Accordingly, it may be more appropriate that such decisions be made by the MHRT than by a court.⁸⁹

1.38 On that basis, we propose that the current procedure for determining fitness should be streamlined as follows:

(1) A defendant should be presumed to be fit to be tried, unless and until a question of fitness is raised in good faith, by the defence, prosecution or the court.

(2) If a question of fitness is raised, the court should hold a fitness inquiry. Unfitness must be established on the balance of probabilities, but no party bears the onus of proving it and the fitness hearing should be conducted in a non-adversarial way.

(3) If the person is found to be fit, the trial continues in the ordinary way.

(4) If the person is found to be unfit, then:

(a) the court may adjourn the proceedings for a specified period of time⁹⁰ if the court considers that the person is likely to become fit during that period, and it would be in the interests of justice to delay resolution pending that possibility; or

(b) the court may hold a special hearing.

(c) In either case, the person would be referred to the MHRT as a forensic patient. The MHRT would periodically review the person’s case, including a determination as to whether or not the person has become fit to be tried. The MHRT would make orders as to whether the person should be detained or released into the community, with or without conditions. Any court order for bail or remand would have effect only until the MHRT considered the person’s case and made its determination.

(6) If the person is still unfit to be tried at the end of the adjournment period, or if, on a review, the MHRT finds that the person will not become fit to be tried during the adjournment period, the MHRT would notify the court and the DPP of its finding. The matter would return to court and the special hearing procedure would be followed.⁹²

1.39 The Commission’s proposal would draw upon the expertise of both the court and the MHRT, and eliminate the duplication that arises when both the court and the MHRT are each required to determine the same issue on the basis of similar evidence. It would also avoid determinations with a foregone conclusion, for example, the current requirement that the MHRT must determine whether or not a person who has a relatively permanent impairment (such as an intellectual disability) will become fit within 12 months before a special hearing can take place.⁹³ Further, an unfit defendant could be removed more swiftly from the criminal justice system and into the forensic mental health system where he or she could be appropriately managed according to clinical and risk management (rather than punitive) principles.⁹⁴

1.40 We seek views as to whether this proposal improves upon the current procedure, or if another method of determining fitness should be adopted.

Issue 6.7

Should the procedure for determining fitness be changed and, if so, in what way?

What should be the role of:

(a) the court; and

(b) the MHRT

in determining a defendant’s fitness to be tried?

1.41 We seek views as to whether the existing or proposed procedures could be enhanced by giving courts the additional powers to:

• order assessment reports in relation to a defendant before conducting a fitness inquiry; and
• enter a finding of unfitness by consent; and
• substitute a verdict where unfitness is successfully raised on appeal.

1.42 In Consultation Paper 5 (“CP 5”), Chapter 5, we discuss whether or not the court should have a general power to order reports and assessments on a defendant’s mental state at any time during the proceedings, including the determination of fitness.⁹⁵

Consent orders

1.43 In South Australia, the Northern Territory and Tasmania, legislation provides that if the defence and prosecution agree that the defendant is unfit, the court may enter a finding to that effect.⁹⁶ In cases where the defendant’s unfitness is not in dispute, those jurisdictions are thereby able to avoid the delays and expense of conducting a fitness inquiry that would be, effectively, a foregone conclusion.⁹⁷

Issue 6.9

Should provision be made for the defence and prosecution to consent to a finding of unfitness?

1.44 If a person is convicted of an offence and appeals on the ground that he or she was, or may have been unfit at the time of the trial, the conviction must be quashed and a new trial ordered. In some such cases, the person is still unfit at the time of the appeal and is likely to remain so. The quashing of the person’s conviction and the subsequent retrial in such cases consists of a special hearing which almost invariably reaches the same conclusion as the trial – the person is not acquitted of the offence.⁹⁸ Given that the purpose of the special hearing is to provide the unfit accused with the chance of being acquitted, in a manner as similar as possible to an ordinary trial, it may seem superfluous to require a special hearing in cases where the ordinary trial process has resulted in a conviction.

1.45 The Criminal Appeal Act 1912 (NSW) could be amended to provide that the Court of Criminal Appeal may quash the conviction and substitute a finding that “on the limited evidence available”, the accused person “committed the offence charged” or “committed an offence available as an alternative”.⁹⁹ The provision could require the Court to be satisfied that there is no reasonable possibility of any other finding if a special hearing were to be held, and/or that the parties consent to the order. The Court of Criminal Appeal might also require ancillary powers, for example, a power to ascertain whether or not the defendant is presently fit.¹⁰⁰

Issue 6.10

Should the Criminal Appeal Act 1912 (NSW) be amended to provide for the Court of Criminal Appeal to substitute a “qualified finding of guilt” in cases where a conviction is quashed due to the possible unfitness of the accused person at the time of trial?

Summary proceedings

1.46 In Consultation Paper 7 (“CP 7”), we discuss the procedures that apply in the Local Court in circumstances where a magistrate determines that it would be more appropriate to discharge a defendant, or divert him or her into a treatment facility rather than proceed with a criminal justice response. These diversionary provisions, contained in part 3 of the MHFPA, apply to the Local Court in lieu of fitness proceedings, which are confined to the District and Supreme courts.

1.47 The inapplicability to the Local Court of the fitness procedures that currently apply in the Supreme and District Courts may be justified because the cost and other burdensome aspects of those procedures, which may be appropriate for serious offences, would be disproportionate in relation to minor offences. However, while expediency in summary matters is beneficial, it may be that provisions additional to the current diversionary procedures are required to deal with unfit defendants in the Local Court. This may be particularly the case given the fact that the jurisdiction and caseload of the Local Court has been expanded in the past decade, with the result that it now regularly determines relatively serious cases, and deals with the vast majority of criminal matters in NSW.¹⁰¹

1.48 The Commission proposes that, in addition to the changes to the existing diversionary procedures recommended in CP 7, a simplified fitness procedure should be introduced in the Local Court. Such a procedure could, at the least, empower the magistrate to:

• order a psychological or psychiatric assessment of the defendant;
• determine the question of fitness;
• determine whether the defendant should be acquitted, or discharged pursuant to the existing diversionary measures, which would operate in parallel; and
• order that the defendant become a forensic patient, that is, subject to the supervision of the MHRT.¹⁰²

Should fitness procedures apply in Local Courts? If so, how should they be framed?

1.49 It would seem that a magistrate has no authority to commit an unfit accused for trial,¹⁰³ since it is an essential principle of criminal law that the accused is physically present, and able to comprehend the facts and circumstances being alleged against him or her, at a committal hearing.¹⁰⁴ Further, the diversionary mechanisms in MHFPA do not apply to committal proceedings.¹⁰⁵ Technically this means that, in the case of an unfit accused, the Crown ought to proceed by way of ex officio indictment.¹⁰⁶

1.50 In practice, the fitness issue is not raised at committal hearings. It will generally be in the interests of the accused to allow the hearing to proceed so as to provide an opportunity not only for early discharge,¹⁰⁷ but also to screen and test the evidence. The issue of fitness can subsequently be raised at trial. Although the committal of an unfit accused is a nullity, this does not – once the indictment has been presented or filed – affect the validity of the trial itself.¹⁰⁸

1.51 The recently enacted Criminal Case Conferencing Trial Act 2008 (NSW) (“the Criminal Case Conferencing Trial Act”) applies to specified indictable offences in respect of which a committal proceeding is to be held at either the Downing Centre or the Central Local Court.¹⁰⁹ The Act, subject to certain exceptions,¹¹⁰ requires the magistrate to order a pre-trial case conference between the prosecutor and the accused person’s legal representative for the purpose of determining whether the accused is willing to plead guilty to the offence(s) charged and for certain other procedural purposes.¹¹¹ The Act provides incentives, in the form of sentencing discounts, to plead guilty at an early stage.¹¹² The accused person’s legal representative must obtain instructions from his or her client before participating in the conference.¹¹³

1.52 The magistrate, on the application of either party, may order that no conference be held if satisfied that “exceptional circumstances exist that would make it impossible or impracticable to hold the conference or that it would be highly unlikely that the holding of the conference would achieve the purpose [of the conference]”.¹¹⁴ If an accused person is unfit to be tried and unable to give instructions,¹¹⁵ that might amount to “exceptional circumstances” such that a conference would not be required and, indeed, could not be held.¹¹⁶ However, if the accused person’s legal representative raised the issue of the accused person’s fitness in respect of the case conference, the magistrate would have no jurisdiction to hold a committal hearing.

1.53 Preliminary submissions received by the Commission indicated that there may be a need for a magistrate, on a committal hearing, to have a power to order an assessment of the accused person.¹¹⁷ The DPP expressed the view that, in cases where the fitness of the accused person to be tried is an issue, “it would be advantageous to all parties to have the matter raised as early in the proceedings as possible”.¹¹⁸

1.54 Legislation could provide for powers to be conferred on a magistrate so that, if there is sufficient evidence to put the accused person on trial for the offence, fitness procedures could be set in motion at that stage. In CP 5, we discuss whether there should be a general power in all courts to order a psychiatric, psychological or other expert assessment of an accused person.¹¹⁹ That power could be exercised by the magistrate during or after the committal hearing. Additionally, if the responsibility for determining a question of fitness is to be conferred solely on the MHRT,¹²⁰ the magistrate, if satisfied that there is a real and substantial question as to the accused person’s fitness to be tried, could refer the person directly to the MHRT for a determination of fitness.

1.55 Alternatively, if the power to determine the question of fitness is to remain with the court,¹²¹ and if a power is conferred on the Local Court to deal with questions of fitness,¹²² the magistrate could determine the question of fitness at the committal hearing. If fit, the accused person would be committed to stand trial or be sentenced. If unfit, the accused person could be committed to a special hearing, or interim orders could be made to allow time for the accused person to become fit if that is a possibility.

Issue 6.12

Should legislation provide for the situation where a committal hearing is to be held in respect of an accused person who is or appears to be unfit to be tried? If so, what should be provided?

2. Eg, R v Mailes (2001) 53 NSWLR 251.

3. Eg, R v Sexton (2000) 116 A Crim R 173 (inoperable heart disease, risk of stress-induced heart attack if required to stand trial), cited in R v Mailes (2001) 53 NSWLR 251, [170] as an example of “the ambit of conditions which may warrant a finding of unfitness to stand trial”.

4. See, eg, Ebatarinja v Deland & Ors (1998) 157 ALR 385 (deaf mute Aboriginal youth unable to communicate except by hand gestures for simple needs held unfit to stand trial). See also R v Willie (1885) 7 QLJ (NC) 108 (four Aboriginal defendants discharged because no interpreter available to communicate the charge to them).

5. R v Cummings [2006] 2 NZLR 597, [37].

6. See Consultation Paper 7 (“CP 7).

7. This chapter also applies only to the procedures for determining fitness to stand trial, and not to fitness at earlier stages of the criminal justice process, eg, fitness for interview during police investigations.

8. Eastman v The Queen (2000) 203 CLR 1, [86].

9. Mental Health (Forensic Provisions) Act 1990 (NSW) (“MHFPA”) s 5.

10. Eastman v The Queen (2000) 203 CLR 1, [84]-[87] (Gaudron J), [172], [177]-[179] (Gummow J), [282] (Kirby J), [294]-[296], [300]-[301] (Hayne J), [333] (Callinan J). Gleeson CJ and McHugh JJ dissented on this point: [41], [46]-[48], [102], [166]-[167]. See also Kesavarajah v The Queen (1994) 181 CLR 230. But contrast R v Riley (Unreported, NSW Supreme Court, Mathews AJ, 2 May 2008).

11. Eastman v The Queen (2000) 203 CLR 1, [297] (Hayne J), but contrast [373] -[374] (Callinan J); see, eg, R v Zhang [2000] NSWCCA 344 (question of fitness raised by prosecution).

12. MHFPA s 7(1).

13. Wills v The Queen (2007) 173 A Crim R 208, [51]-[81].

14. The appellate court must quash the conviction unless it is satisfied that, had the question been raised at trial, the trial court would have found that the accused was fit to stand trial: see Eastman v The Queen (2000) 203 CLR 1; R v RTI (2003) 58 NSWLR 438; R v Rivkin (2004) 59 NSWLR 284, [297]-[301]; R v Henley [2005] NSWCCA 126, [4], [13]-[15]; R v Kirkwood [2006] NSWCCA 181, [7]-[15]; Wills v The Queen (2007) 173 A Crim R 208; Robinson v The Queen [2008] NSWCCA 64; R v Zhang [2000] NSWCCA 344.

15. MHFPA s 10(1).

16. MHFPA s 10(2). The threshold is also referred to as a “real”, “genuine” or “real and substantial” question as to fitness: see Ngatayi v The Queen (1980) 147 CLR 1, 9; Eastman v The Queen (2000) 203 CLR 1, [296], [319]; R v Tier [2001] NSWCCA 53, [1]-[6], [69]-[72]; R v Mailes (2001) 53 NSWLR 251, [173]-[181], [224].

17. MHFPA s 10(4).

18. Kesavarajah v The Queen (1994) 181 CLR 230, 245.

19. MHFPA s 10(4).

20. MHFPA s 11(1). At common law, a jury had to be empanelled for the purpose of determining whether or not the defendant was fit to plead or fit to be tried: see discussion in R v Mailes (2001) 53 NSWLR 251, [112]-[132].

21. MHFPA s 6.

22. MHFPA s 11(2).

23. See MHFPA s 12; Eastman v The Queen (2000) 203 CLR 1, [294].

24. MHFPA s 7(2).

25. See R v Pritchard (1836) 7 C & P 303, 173 ER 135; Ngatayi v The Queen (1980) 147 CLR 1, 6-7; Kesavarajah v The Queen (1994) 181 CLR 230, 245.

26. R v Presser [1958] VR 45, 48, now reduced to statutory form in Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) s 6. See also R v Robertson (1968) 52 Cr App R 690.

27. See especially R v Mailes (2001) 53 NSWLR 251, [144]-[151]; R v Sexton (2000) 116 A Crim R 173, [50]-[58]. And consider Crimes Act 1900 (ACT) s 311; Criminal Code Act 1983 (NT) s 43J; Criminal Law Consolidation Act 1935 (SA) s 269H; Criminal Law (Mentally Impaired Accused) Act 1996 (WA) s 9; Criminal Justice (Mental Impairment) Act 1999 (Tas) s 8.

28. See R v Presser [1958] VR 45, 48.

29. Research in England has revealed that, in practice, psychiatric reports most commonly focus on the ability of the accused to understand the course of the proceedings and to instruct a lawyer: R Mackay, B Mitchell and L Howe, “A Continued Upturn in Unfitness to Plead – More Disability in Relation to the Trial under the 1991 Act” [2007] Criminal Law Review 530, 536.

30. Ngatayi v The Queen (1980) 147 CLR 1, 8-9; R v Mailes (2001) 53 NSWLR 251, [148].

31. Ngatayi v The Queen (1980) 147 CLR 1, 8-9; R v Presser [1958] VR 45, 48.

32. In R v Rivkin (2004) 59 NSWLR 284, the Court of Criminal Appeal noted that interpreting the Presser standards to require the accused to act in his or her best interests “might invite invidious comparisons between accused of different intellectual backgrounds or personalities. It could also invite a fruitless search for a hypothetical accused with the capacity, intellectual or otherwise, which might equip him or her with the ability to conduct a defence at a predetermined level of skill”: [299].

33. Criminal Law Consolidation Act 1935 (SA) s 269H (emphasis added). The legislative restatements of the Presser standards in other Australian jurisdictions do not attempt to rewrite those standards in any significant respect.

34. Dusky v United States, 362 US 402 (1960).

35. See generally discussion and references cited in AP Wilkinson and AC Roberts, “Defendant’s Competency to Stand Trial” 40 American Jurisprudence Proof of Facts 2d 171 (online edition, 25 September 2007), §4.

36. Wilkinson and Roberts, §4.

37. Attorney-General v O’Driscoll [2003] JLR 390, 402-03, discussed in R D Mackay, “On Being Insane in Jersey Part Three – the Case of Attorney-General v O’Driscoll” [2004] Criminal Law Review 291, 294-96.

38. Convention for the Protection of Human Rights and Fundamental Freedoms, opened for signature 4 November 1950, 213 UNTS 222, art 6(1) (entered into force 3 September 1953). In the United States the unfitness test relates to a person’s due process right to a fair trial: see Pate v Robinson 383 US 375 (1965); Drope v Missouri 420 US 162 (1975).

39. See R v Presser [1958] VR 45, 48.

40. See discussion in R v Minani (2005) 63 NSWLR 490 (accused must be able to understand what election of trial by judge-alone involved). See also Re CER [2004] QMHC 27, [274] (defendant found unfit to be tried due to incapacity to provide counsel with rational instructions). And consider R v Friend [1997] 2 All ER 1011 (whether the defendant “can understand and reply rationally to the indictment is obviously a relevant factor”).

41. See, eg, R v Cumming [2006] 2 NZLR 597; Eastman v The Queen (2000) 203 CLR 1.

42. See [1.13].

43. See [1.11].

44. Scottish Law Commission, Report on Insanity and Diminished Responsibility, Scot Law Com No 195 (2004) [4.14].

45. T v United Kingdom and V v United Kingdom (2000) 30 EHRR 121, developing Stanford v United Kingdom (Series A282-A) (1994). See also SC v United Kingdom (2005) 40 EHRR 10.

46. People v Picozzi, 106 AD2d 413, 414; People (of the State of New York) v Morton, 173 AD2d 1081, 1083 (1991, 3d Dept).

47. See generally Wilkinson and Roberts, §5.

48. Mental Health Act 2000 (Qld) s 10, sch 2. In R v House [1986] 2 Qd R 415, 422, Connolly J said: “Just what is meant by ‘serious adverse consequences to his mental condition’ is far from clear. No doubt anyone’s mental condition is likely to be adversely affected by the ordeal of a criminal trial. Whether an adverse consequence can be serious without being permanent is something which remains to be determined”. See also R v Sarracino [1988] 2 Qd R 707, 710.

49. Kesavarajah v The Queen (1994) 181 CLR 230, 246-47 (Mason CJ, Toohey and Gaudron JJ). Compare at 249 (Deane and Dawson JJ dissenting).

50. Kesavarajah v The Queen (1994) 181 CLR 230, 246.

51. See [1.7].

52. See MHFPA s 13.

53. The subsequent process is summarised in a flowchart in Appendix X.

54. MHFPA s 42.

55. See generally MHFPA s 14.

56. MHFPA s 16(1).

57. MHFPA s 16(3)-(4).

58. See ch 2 for a discussion of the special hearing procedure.

59. See MHFPA s 19(3). The DPP must notify the Minister of Police of its decision not to proceed with the matter: s 19(3).

60. MHFPA s 20.

61. MHFPA s 16(2). “Mental condition” is defined: MHFPA s 3. See also discussion in Consultation Paper 5 (“CP 5”), [4.17]-[4.18].

62. MHFPA s 16(3).

63. MHFPA s 17. The court may order that the person be detained in a hospital only if the MHRT has determined that the person does not object to being so detained: s 17(3). The court’s registrar must notify the MHRT of the terms of the court order: s 17(4).

64. MHFPA s 42.

65. MHFPA s 43, 45(2).

66. MHFPA s 45(3).

67. MHFPA s 43, 47(1).

68. MHFPA s 46(1).

69. MHFPA s 45(3).

70. See MHFPA s29.

71. MHFPA s 30(1).

72. MHFPA s 30(2).

73. See MHFPA s 19(1), 19(3), 20.

74. The Hon Greg James QC, Review of the New South Wales Forensic Health Legislation, Report (August 2007), [6.9] (“the James Report”).

75. Crimes Act 1900 (ACT) pt 13; Criminal Code Act 1983 (NT) pt IIA; Criminal Law Consolidation Act 1935 (SA) pt 8A; Criminal Justice (Mental Impairment) Act 1999 (Tas) pt 2; Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic); Criminal Law (Mentally Impaired Accused) Act 1996 (WA). The Crimes Act 1914 (Cth) does not provide a procedure for determining fitness, which follows the procedure of the State or Territory where the matter is being tried: Kesavarajah v The Queen (1994) 181 CLR 230.

76. Criminal Law (Mentally Impaired Accused) Act 1996 (WA) s 12.

77. Criminal Law (Mentally Impaired Accused) Act 1996 (WA) s 19(1).

78. Criminal Law (Mentally Impaired Accused) Act 1996 (WA) s 19(1)(b), (2). Successive adjournments may be ordered but the total adjournment period cannot exceed six months: s 19(2).

79. Criminal Law (Mentally Impaired Accused) Act 1996 (WA) s 10(2).

80. Criminal Law (Mentally Impaired Accused) Act 1996 (WA) s 16(5), 19(4). A custody order is an indefinite order that the person be detained in an “authorised hospital”, a “declared place”, a detention centre, or a prison, as determined by the Mentally Impaired Accused Review Board, until released by the Governor: Criminal Law (Mentally Impaired Accused) Act 1996 (WA) s 38(1). See ch 7 and 8 for a discussion of the orders that may be made following a finding of unfitness.

81. Criminal Law (Mentally Impaired Accused) Act 1996 (WA) s 19(7).

82. Criminal Law (Mentally Impaired Accused) Act 1996 (WA) s 16(1), (8).

83. Mental Health Act 2000 (Qld) ch 7, s 383. The Mental Health Court is constituted by a Supreme Court judge and two assisting psychiatrists: Mental Health Act 2000 (Qld) s 382, ch 11 pt 1-3.

84. Mental Health Act 2000 (Qld) s 271.

85. Mental Health Act 2000 (Qld) s 288.

86. Mental Health Act 2000 (Qld) s 215, 283.

87. See James Report, [6.11].

88. James Report, [6.12].

89. See James Report, [6.12].

90. Currently 12 months: MHFPA s 16-17. However, a different time-frame could be adopted.

91. Currently, if the MHRT finds that the defendant has become fit, the court has to hold a fitness inquiry before the trial can commence or continue: MHFPA s 29. As to the presumption, see MHFPA s 15.

92. The procedure governing the special hearing is discussed in ch 2. The orders that may be made by the court and the MHRT concerning unfit offenders are discussed in ch 6 and 7.

93. See MHFPA s 14, 16, 19.

94. See MHFPA s 40, 43, 74, 76B; MHA s 68.

95. See CP 5, ch 5.

96. Criminal Code Act 1983 (NT) s 43T(1); Criminal Law Consolidation Act 1935 (SA) s 269M(A)(5), 269N(B)(5); Criminal Justice (Mental Impairment) Act 1999 (Tas) s 19.

97. Compare R v Wilson [2000] NSWSC 1104 where, notwithstanding a joint submission of unfitness by the Crown and defence, Bell J nevertheless had to make an independent finding of unfitness before referring the defendant to the MHRT.

98. See, eg, Tuigamala [2004] NSWSC 1254 (convicted of murder); [2006] NSWCCA 380 (conviction quashed, new trial ordered, because of possible unfitness at time of trial); [2007] NSWSC 493 (found unfit to be tried at subsequent retrial); [2008] NSWSC 706 (qualified finding of guilt and imposition of limiting terms). See also R v Mailes [1999] NSWSC 942 (convicted of murder); (2001) 53 NSWLR 251 (conviction quashed, new trial ordered, due to possible unfitness at trial); (2003) 142 NSWLR 353 (qualified finding of guilt and imposition of limiting term).

99. MHFPA s 22(1)(c)-(d).

100. See, eg, Criminal Appeal Act 1912 (NSW) s 6A, 12; see also Mental Health Act 2007 (NSW) s 164; MHFPA s 77A(8)-(13).

101. Her Honour Helen Syme, Deputy Chief Magistrate of the Local Court of New South Wales, “Local Court procedure and sentencing of offenders with mental illness” (paper presented at “The Mental Health Act – Issues and Consequences” seminar, University of Technology Sydney, 28 March 2008). In 2006, the Local Court dealt with 91.7% of cases, in comparison with the District and Supreme Courts which finalised only 2% of cases: Calculated from data in Bureau of Crime Statistics and Research (NSW), Criminal Courts Statistics 2006 (2007), 3, 9, 11.

102. Consider, eg, Crimes Act 1900 (ACT) pt 13 div 13.1, 13.2, 13.6; Criminal Law Consolidation Act 1935 (SA) pt 8A; Criminal Law (Mentally Impaired Accused) Act 1996 (WA) pt 2-3; Criminal Justice (Mental Impairment) Act 1999 (Tas) s 4(1), pt 2; Criminal Procedure (Mentally Impaired Persons) Act 2003 (NZ) s 4(1), 9-14, 23-25, 38-40.

103. Ebatarinja v Deland and Others (1998) 194 CLR 444, [33].

104. Ebatarinja v Deland and Others (1998) 194 CLR 444, [25]-[28]. And consider Criminal Procedure Act 1987 (NSW) s 71. See also R v Mailes (2001) 53 NSWLR 251, [159]-[162].

105. MHFPA s 31.

106. Consider Ebatarinja v Deland and Others (1998) 194 CLR 444.

107. See Criminal Procedure Act 1986 (NSW) s 66.

108. Ebatarinja v Deland and Others (1998) 194 CLR 444. Consider also Criminal Procedure Act 1987 (NSW) s 8(2), 67(1). For a case where a committal hearing was declared a nullity, see McKay v Cook (Unreported, Enderby J, NSW Supreme Court, 19 February 1988).

109. Criminal Case Conferencing Trial Act 2008 (NSW) s 4, 5, 18. See also generally NSW, Parliamentary Debates, Legislative Council, 2 April 2008, 6243-6246 (the Hon John Hatzistergos, MLC).

110. Criminal Case Conferencing Trial Act 2008 (NSW) s 6(1).

111. Criminal Case Conferencing Trial Act 2008 (NSW) s 6, 11, 12(3).

112. Criminal Case Conferencing Trial Act 2008 (NSW) pt 4.

113. Criminal Case Conferencing Trial Act 2008 (NSW) s 11(3).

114. Criminal Case Conferencing Trial Act 2008 (NSW) s 6(5).

115. See Presser criteria at [1.8]-[1.11].

116. Criminal Case Conferencing Trial Act 2008 (NSW) s 6(5), 11(3).

117. Intellectual Disability Rights Service, Preliminary Submission, 6; Law Society of New South Wales, Preliminary Submission, 2; The Shopfront Youth Legal Centre, Preliminary Submission, 2-3.

118. Director of Public Prosecutions, Preliminary Submission, 2; see also Intellectual Disability Rights Service, Preliminary Submission, 2.

119. See CP 5, ch 5.

120. See Issue 6.8.

121. See [1.33]-[1.40], and Issue 6.7 and 6.8.

122. See [1.46]-[1.48], and Issue 6.11.