Review of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997: Consultation Paper

4. Unfitness to stand trial

Introduction

4.1 ‘Unfitness to stand trial’ refers to the doctrine which exempts an accused person from a usual trial, sometimes temporarily, because at the time of the trial they cannot understand the trial or participate in it, or are, in other words, ‘unfit to stand trial’.^[1] Unlike the defence of mental impairment, discussed in Chapter 5, which concerns the accused person’s mental condition at the time of the offence, unfitness to stand trial relates to the accused person’s mental condition at the time they are involved in court proceedings.

4.2 There are a number of justifications for the requirement that an accused person is fit to stand trial:

• To avoid inaccurate verdicts—Forcing an accused person to be answerable for their actions where they are incapable of doing so could lead to an inaccurate verdict.^[2]

• To maintain the ‘moral dignity’ of the trial process—Requiring that an accused person is fit to stand trial recognises the importance of maintaining the moral dignity of the trial process. It ensures that the person is able to form a link between their alleged crime and their trial or punishment and be accountable for their actions.^[3]

• To avoid unfairness—The final justification often cited for the requirement that an accused person is fit to stand trial is that it would be unfair or inhumane to subject someone who is unfit to the trial process.^[4]

4.3 This chapter examines the determination of unfitness to stand trial under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) (CMIA). It briefly explores the historical foundations of the law on unfitness to stand trial and the current law governing the process. The chapter discusses a number of specific aspects of the law on unfitness to stand trial, such as the unfitness to stand trial test and the conduct of special hearings, and seeks to identify whether there are any issues in relation to the way the law operates. The terms of reference specifically ask the Commission to consider whether the process of determining unfitness to stand trial can be improved. This chapter also considers issues relating to the process of determining unfitness to stand trial, including procedural requirements, the role of lawyers and experts, jury involvement, special hearings and the length of the process.

4.4 Throughout the chapter, the Commission asks a number of questions about possible changes to the law and what form any changes should take.

4.5 As stated in [4.11] below, under section 7(1) of the CMIA an accused person is presumed to be fit to stand trial. Thus, strictly speaking, the issue if it arises is not an issue of fitness to stand trial but is an issue of unfitness to stand trial. Doubtless for that reason Part 2 of the CMIA is headed ‘Unfitness to stand trial’, and the pivotal section of Part 2, section 6, lays down the statutory test of unfitness to stand trial. Despite this, Part 2 goes on repeatedly to refer to ‘the question of a person’s fitness to stand trial’. In order to be conceptually correct, this paper will refer to ‘unfitness to stand trial’ unless the context requires otherwise (for example, in referring to the law prior to the CMIA and quoting a section of the CMIA which uses the expression ‘the question of a person’s fitness to stand trial’ or decisions of courts which use that expression).

Unfitness to stand trial prior to the CMIA: ‘fitness to plead’

4.6 From at least as early as the fourteenth century, the question of whether an accused person was fit to plead was a concern for courts.^[5] Medieval court procedure required an accused person to enter a plea of guilty or not guilty to an offence. The inability or refusal to do so would prevent the trial from proceeding.

4.7 To circumvent this procedural hurdle, an alternative procedure was devised that required a jury to decide between whether the failure to plead was due to a genuine inability to enter a plea (‘mute by visitation of God’) or out of choice (‘mute by malice’). Those who were found by the jury to be ‘mute by visitation of God’ would have a plea of not guilty entered on their behalf, based on the assumption that it would have been the plea they would have entered had they been able. Those who were found by the jury to be ‘mute by malice’, on the other hand, would be subject to the practice of peine forte et dure (‘strong and hard suffering’). These people were starved and gradually crushed under increasing weights, in an attempt to force them to plead, or until they died.

4.8 The law in relation to those who were ‘mute by visitation of God’ that forms the basis of the modern law on unfitness to stand trial remained unclear until the decisions of R v Dyson ^[6]and R v Pritchard ^[7] in the 1830s. These cases are discussed in more detail at [4.21]–[4.23].

4.9 In Victoria, the law on fitness to plead was adopted through the introduction of section 393(1) of the Crimes Act 1958 (Vic) that provided for the ‘strict custody until the Governor’s pleasure shall be known’ of accused people tried for indictable offences in the Supreme Court or County Court and who were found unfit to plead. Section 393(1) was based on the wording of section 2 of the Criminal Lunatics Act 1800, the first statutory provision introduced in Great Britain concerning the process in relation to accused people who may be unfit to plead. Section 393(2) of the Crimes Act also provided the court with the option of making any order it thinks fit to enable the accused person to receive appropriate services under mental health legislation, after having regard to any evidence before it relating to the person’s mental health or intellectual disability.

4.10 The process in relation to unfitness to stand trial was not set out in detail in legislation until the abolition of the Governor’s pleasure system and the introduction of the CMIA. The CMIA expanded the expression ‘unfitness to plead’ to ‘unfitness to stand trial’ to reflect that an accused person must be fit at any stage of the proceedings. The CMIA did not alter the common law test for unfitness to plead, but made a number of important changes to the process. It gave accused people, who may be unfit to stand trial, the opportunity of becoming fit (during a 12-month adjournment). It also introduced a procedure to have the evidence against them tested (with a special hearing process). Under the Governor’s pleasure system, people were neither given the opportunity to become fit nor to have the evidence against them tested.

Unfitness to stand trial under the CMIA

Law

4.11 The CMIA introduced a new process to determine an accused person’s unfitness to stand trial and provides for the system in Victoria today. Under the CMIA, an accused person is presumed to be fit to stand trial.^[8] This is the case even where an accused person has previously been found unfit to stand trial. The presumption is rebutted if it is established, following an investigation by a jury, that the accused person is unfit to stand trial.^[9] Under the CMIA, an accused person is unfit to stand trial for an offence if, because their mental processes are disordered or impaired, they are or, at some time during the trial, will be:

• unable to understand the nature of the charge

• unable to enter a plea to the charge and to exercise the right to challenge jurors or the jury

• unable to understand the nature of the trial

• unable to follow the course of the trial

• unable to understand the substantial effect of any evidence given against them

• unable to give instructions to their legal practitioner.^[10]

4.12 Each of these criteria stands alone. An accused person need only satisfy one of the above criteria to be found unfit to stand trial.

Process

4.13 Figure 1 shows the key stages of the unfitness to stand trial process under the CMIA. A question of an accused person’s unfitness may be raised at any stage in a court proceeding. If raised, the question of whether a person is unfit to stand trial is a question of fact for determination by a jury on the balance of probabilities in an unfitness investigation in either the Supreme Court or County Court. The jury must make a finding that the accused person is fit or unfit to stand trial for the offence charged.

4.14 If a jury finds the accused person unfit to stand trial, the judge must determine whether that person is likely to become fit to stand trial within 12 months.^[11] If the judge determines that the accused person is likely to become fit and they do become fit after a period of adjournment, the trial will proceed.^[12] If a jury finds that the accused person is unfit, the person has a right to appeal the finding of unfitness to the Court of Appeal.^[13] If the judge determines that the accused person is not likely to become fit within 12 months, or remains unfit after the period of adjournment,^[14] a special hearing must be conducted before a jury to determine whether the person:

• is not guilty of the offence (a complete acquittal)

• is not guilty of the offence because of mental impairment, or

• committed the offence.^[15]

4.15 A special hearing is conducted as closely as possible to a criminal trial.^[16] The accused person found unfit to stand trial is assumed to have pleaded not guilty to the offence.^[17]

4.16 If an accused person is found to have committed the offence at a special hearing, this constitutes a qualified finding of guilt.^[18] A qualified finding of guilt does not amount to a conviction. There can be no further prosecution of the person in respect of the same offence and the finding is subject to appeal as if the person had been found guilty in a usual criminal trial.^[19]

Figure 1: Unfitness to stand trial under the CMIA in the Supreme Court and County Court

4.17 The person is taken to have been found not guilty at a usual criminal trial and must be released if there is a finding of not guilty at a special hearing.^[20]

4.18 Where a person is found to be either not guilty because of mental impairment or to have committed the offence, the judge may either unconditionally release the person or order that the person be liable to supervision.^[21] An accused person can appeal a finding of not guilty because of mental impairment to the Court of Appeal.^[22]

4.19 If the judge orders that the person is liable to supervision, the court may make an order that is custodial or non-custodial.^[23] Chapter 7 discusses in more detail the process of imposing a supervision order.

4.20 The unfitness to stand trial process, at present, only applies in the Supreme Court or County Court. Where the question of unfitness to stand trial is raised in the Magistrates’ Court in relation to an indictable offence triable summarily, the matter must be uplifted to a higher court for an investigation of unfitness and if appropriate, a special hearing. In cases involving summary offences, there is no option of uplifting the matter to a higher court to determine the question of unfitness and the case must be discontinued.^[24] Chapter 6 discusses this issue in more detail.

Test for determining unfitness to stand trial

Origin of the test

4.21 The question of whether an accused person was fit to plead was a concern for courts from as early as the fourteenth century. However, it was not until the nineteenth century that the law provided some clarification on the test for fitness to plead.^[25] The first significant case on the subject was R v Dyson.^[26] In 1831, Dyson, a woman who was deaf and mute, was accused of cutting off her child’s head. On the issue of Dyson’s fitness to plead, Justice Parke directed the jury to consider whether Dyson had ‘sufficient reason to understand the nature of this proceeding, so as to be able to conduct her defence with discretion’.^[27] Dyson was ultimately found to be ‘insane’ and was detained under the Criminal Lunatics Act 1800.^[28]

4.22 Following R v Dyson,^[29] the next significant case on fitness to plead was R v Pritchard.^[30] Pritchard, a man who was also deaf and mute, was charged with bestiality, that at the time was punishable by death. Baron Alderson, in that case, set out what is now regarded as the legal basis for determining unfitness to stand trial, or the ‘Pritchard criteria’:^[31]

There are three points to be inquired into:— First, whether the prisoner was mute of malice or not; secondly, whether he can plead to the indictment or not; thirdly, whether he is of sufficient intellect to comprehend the course of proceedings on the trial, so as to make a proper defence — to know that he might challenge any of you to whom he may object — and to comprehend the details of the evidence, which in a case of this nature must constitute a minute investigation.^[32]

4.23 Like Dyson, Pritchard was also ultimately detained under the Criminal Lunatics Act 1800.

The test in Victoria: the ‘Presser criteria’

4.24 In Victoria, the test for unfitness to stand trial derives from the judgment of Justice TW Smith in the case of R v Presser (Presser).^[33] Justice TW Smith expanding on the Pritchard criteria, identified seven criteria (the ‘Presser criteria’), to determine unfitness to stand trial:

• ability to understand the charge

• ability to plead to the charge and to exercise the right to challenge jurors

• ability to understand generally the nature of the proceedings (that it is an inquiry as to whether the accused person did what they are charged with)

• ability to follow the course of the proceedings

• ability to understand the substantial effect of any evidence that may be given against them

• ability to make their defence or answer to the charge, or

• ability to give any necessary instructions to their legal counsel.^[34]

4.25 The CMIA incorporates the test for unfitness to stand trial as set out in the decision of Presser.^[35] The CMIA provides that an accused person is unfit to stand trial for an offence if, because their mental processes are disordered or impaired, they are or, at some time during the trial, will be:

• unable to understand the nature of the charge

• unable to enter a plea to the charge and to exercise the right to challenge jurors or the jury

• unable to understand the nature of the trial (that it is an inquiry as to whether the accused person committed the offence)

• unable to follow the course of the trial

• unable to understand the substantial effect of any evidence that may be given in support of the prosecution, or

• unable to give instructions to their legal practitioner.^[36]

Issues in relation to the test for determining unfitness to stand trial

4.26 In its preliminary research, the Commission identified a number of possible issues concerning the current operation of the test and criteria for determining unfitness to stand trial. These include:

• whether the test should define the mental condition the accused person must have to be found unfit to stand trial

• whether the test should be based on the decision-making capacity or effective participation of the accused person

• whether the accused person’s rationality should be taken into consideration in some way in the test for unfitness to stand trial

• whether the existing Presser criteria should be changed

• the role of support measures in assessments of unfitness to stand trial

• whether the current Presser criteria are sufficiently clear for experts to assess unfitness to stand trial.

4.27 These issues prompt an examination of the current test on unfitness to stand trial, particularly the criteria that form the basis of the test. The purpose of this section is to provide an overview of these issues and to ask where the threshold for unfitness to stand trial should be set, what capacities should be implied in reaching this threshold and whether any changes can be made to assist experts in assessing unfitness to stand trial.^[37] Consideration of these issues centres on the role of the accused person in the trial process, in particular, whether they should be an active player or a bare participant, or whether their role instead is not a static one but fluctuates according to the nature of the criterion they are required to meet.

Threshold definition

4.28 The CMIA provides that an accused person is unfit to stand trial if ‘because the person’s mental processes are disordered or impaired …’ the person is unable to satisfy a number of criteria.

4.29 One issue that has been raised is whether a threshold definition, or a definition of the mental condition the accused person would have to satisfy to be found unfit to stand trial, should be included as part of the test for determining unfitness to stand trial.

4.30 Providing for a threshold definition would require the existence of some sort of mental condition (for example, a mental illness, intellectual disability or cognitive impairment, depending on what form the definition takes) in addition to an inability to satisfy one of the capacity-based criteria in the test to be found unfit to stand trial. A threshold definition may make it easier for juries to understand and apply the test for unfitness to stand trial because it would provide a link between the accused person’s mental condition and the criteria for unfitness to stand trial. However, not all accused people who should be found unfit to stand trial would necessarily have a mental illness, intellectual disability or cognitive impairment. Some accused people may have a physical condition that would affect their mental processes to such an extent that they would be unfit to stand trial. In those cases, including a threshold definition based on mental diagnoses may unduly limit the application of the unfitness to stand trial test.

4.31 Further, it would be important to exercise caution if introducing a threshold definition for the unfitness to stand trial test that is similar to the notion of defining ‘mental impairment’ in the mental impairment defence (discussed in Chapter 5). Applying the same definition to unfitness to stand trial as the mental impairment defence could blur the conceptual distinction between the unfitness to stand trial and mental impairment defence doctrines. For example, there may be certain mental conditions that would have an effect on a person’s mental processes to the extent that they would be unfit to stand trial, such as an acquired brain injury. However, the same mental condition may not have the effect required for the mental impairment defence. An accused person who is unfit to stand trial does not necessarily qualify for the mental impairment defence, and vice versa. If a definition was introduced, it would be important to have regard to the different purpose of each doctrine.

Question

1 Should the test for determining unfitness to stand trial include a threshold definition of the mental condition the accused person would have to satisfy to be found unfit to stand trial?

Decision-making capacity or effective participation

4.32 The current test of unfitness to stand trial that focuses on the intellectual ability of the accused person may be problematic for a number of reasons. First, the current criteria are difficult to apply in relation to accused people with a mental illness because these criteria were not designed for them.^[38] The criteria developed through experience with accused people who were deaf and mute like Dyson and Pritchard, and by extension accused people with an intellectual disability, but not accused people with a mental illness.^[39] However, to compound the confusion, orders were made in relation to these accused people as if they were ‘insane’.^[40] Brookbanks observes:

The fitness to plead rules have developed without proper regard for the distinctive characteristics and needs of the people whose very interests they are designed to protect.

As a consequence of this development, subsequent legislation in many jurisdictions also failed to distinguish intellectually disabled from insane offenders …. At the same time legislation has often failed to provide an appropriate range of dispositional options suited to the particular developmental, medical and social needs of the respective groups.^[41]

4.33 An accused person with a mental illness, for example, may have no trouble having a factual or an intellectual understanding of their right to challenge a juror, but their delusional beliefs may hinder them from making decisions to exercise that right (or having a ‘decision-making capacity’). On the other hand, an accused person with a cognitive impairment or intellectual disability may have more trouble than an accused person with a mental illness to understand this right. This raises the question of whether the current criteria are suitable for people with a mental illness and whether the threshold for unfitness to stand trial is currently set at the right level for these people.

4.34 There is also a question of whether the test continues to be a ‘suitable modern basis for determining the issue [of unfitness to stand trial]’ and whether it sets too high a threshold for a finding of unfitness to stand trial.^[42] In some jurisdictions, debate has focused on whether the test for unfitness to stand trial should be based on the Pritchard or Presser criteria (that rely on the intellectual understanding of the accused person), or something more than this (such as the decision-making capacity or effective participation of the accused person).^[43] The test for competency in the United States of America (that is the equivalent of the unfitness to stand trial test) already requires a stricter standard. In that jurisdiction the test requires a ‘sufficient present ability to consult his lawyer with reasonable degree of rational understanding – and whether he has a rational as well as a factual understanding of the proceedings against him’.^[44] Although the discussion in other jurisdictions is yet to result in legislative change, this debate signals a potential shift from the current emphasis on passive participation, based on mere factual understanding, to a requirement that the accused person be able to more actively participate in the trial, for example, by making decisions.

4.35 In Victoria, the Presser criteria do not necessarily exclude a consideration of a person’s decision-making capacity. However a clear link has not yet been expressed. Adopting a test where decision-making capacity or effective participation is considered would change the threshold for unfitness to stand trial and would likely result in more people being found unfit to stand trial. Whether Victoria should adopt this formulation depends on whether the threshold for unfitness to stand trial should change, and what capacities should be implied in reaching a new threshold.^[45]

Question

2 Does the current test for unfitness to stand trial, based on the Pritchard or Presser criteria, continue to be a suitable basis for determining unfitness to stand trial?

Decision-making capacity

4.36 The Law Commission of England and Wales has proposed replacing the test based on the Pritchard criteria^[46] with a new legal test that assesses whether the accused person has the decision-making capacity for trial. In its view, an accused person cannot participate meaningfully in their trial unless they have the capacity to make decisions relating to the trial that the current test fails to take into account.^[47] The Law Commission of England and Wales anticipates that if a person has decision-making capacity, then they would also satisfy the requirements of the current test based on the Pritchard criteria because these criteria set a higher threshold for unfitness to stand trial than a test that is based on decision-making capacity.^[48]

4.37 The test proposed by the Law Commission of England and Wales would bring the unfitness to stand trial test in line with the civil mental capacity test in the Mental Capacity Act 2005 (UK). The new test would require an accused person to:

• Understand the information relevant to the decisions that they will have to make in the course of the trial—for example, an accused person with an acquired brain injury who has very low cognitive ability and is unable to understand new or unfamiliar information would be unfit to stand trial.^[49]

• Retain that information—for example, someone with Attention-Deficit Hyperactivity Disorder (ADHD) who cannot focus and finds it almost impossible to remember any new information given to them would be unfit to stand trial.^[50]

• Use or weigh that information as part of a decision-making process—for example, an accused person who suffers from paranoid schizophrenia who has a factual understanding of the charge, but indicates to the court that he wants to plead guilty because he sees no point in pleading not guilty as everyone in court is part of a conspiracy, would be unfit to stand trial.^[51]

• Communicate their decisions—for example, an accused person with autism who is able to understand information and process it but does not acknowledge others, may be unfit to stand trial.^[52]

4.38 The test proposed by the Law Commission of England and Wales therefore relies less on basic competencies (such as the competence to assist counsel) that might equip a person with the ability to communicate with counsel in a rudimentary fashion. The new test relies more on sophisticated competencies (decision-making capacity) that equip an accused person with the ability to understand and retain information and use that information to process alternative courses of action and to express a choice among alternatives.^[53] The Law Commission of England and Wales is of the view that bringing the test in line with the civil mental capacity test will remove the discrepancy between the two tests. It will also avoid situations where a person can be found to have the capacity to stand trial but not have the capacity to make more minor civil decisions.^[54]

Question

3 Should the test for unfitness to stand trial include a consideration of the accused person’s decision-making capacity?

4.39 The Law Commission of England and Wales anticipates that a new test based on decision-making capacity would implicitly require that the Pritchard criteria be satisfied as well. It is arguable, however, that an accused person could have decision-making capacity without the basic competencies important for a trial. For example, a person with paranoid delusions could have the ability to use and weigh information as part of a decision-making process (the third criterion in the proposed test by the Law Commission of England and Wales) but might not have the basic competency of instructing their lawyer because of their delusions.^[55]

4.40 Instead of replacing the Presser criteria with a new test, it may be preferable to supplement the current criteria with an additional requirement that an accused person have the capacity to make decisions to be fit for trial. Alternatively, there could be a two-stage approach. This would involve first an investigation into the basic competencies of the accused person. If they have the basic competencies, the investigation of unfitness then considers their decision-making capacity.^[56]

Question

4 If the test for unfitness to stand trial is changed to include a consideration of the accused person’s decision-making capacity, what criteria, if any, should supplement this test?

4.41 The formulation put forward by the Law Commission of England and Wales may operate too widely. It has the capacity to include accused people who have no recognised mental illness but are unable to use or weigh information as part of a decision-making process, for example, because of stress, overwhelming tiredness or poor education or social background.^[57] Howard recommends qualifying the test by requiring that the lack of decision-making capacity must be ‘due to mental or physical illness, whether temporary or permanent’.^[58] This is similar to the Scottish Law Commission’s recommendation that what makes the accused person unfit to stand trial must be a clinically recognised condition.^[59] If a threshold definition of the mental condition the accused person would have to satisfy is introduced (discussed at [4.28]–[4.31]), this would also limit the test.

Question

5 If the test for unfitness to stand trial is changed to include a consideration of the accused person’s decision-making capacity, should the test also require that the lack of any decision-making capacity be due to a mental (or physical) condition?

Effective participation

4.42 Scotland, in contrast to England and Wales, has introduced legislation based on an accused person’s effective participation. The approach captures ‘the notion of full or rational appreciation by the accused of the proceedings’.^[60] The New South Wales Law Reform Commission in its consultation paper People with Cognitive and Mental Impairments in the Criminal Justice System: Criminal Responsibility and Consequences, however, noted a number of weaknesses with this approach including the risk that it would be overly inclusive and require a level of knowledge or competence that would go beyond rational decision making.^[61]

Question

6 If not decision-making capacity, should the test for unfitness to stand trial include a consideration of the accused person’s effective participation?

Rationality

4.43 The terms of reference ask the Commission to consider recommendations made by the Victorian Parliament Law Reform Committee in its Inquiry into Access to and Interaction with the Justice System by People with an Intellectual Disability and their Families and Carers. The Law Reform Committee recommended that the Victorian Government consider amending the CMIA to require the court, when considering unfitness to stand trial, to determine:

• the ability of the accused person to understand or respond rationally to the charge, or

• the ability of the accused person to exercise or to give rational instructions about the exercise of procedural rights.^[62]

4.44 The Law Reform Committee noted that the current test in Victoria, that focuses on the ability of the accused person to understand court processes and give instructions to a lawyer, ‘sets a low threshold for determining the fitness’ of the accused person.

4.45 This section considers whether an accused person’s rationality should be taken into account in some way in an assessment of unfitness to stand trial. The Commission is interested, in particular, whether:

• the existing Presser criteria for unfitness to stand trial in the CMIA should be qualified by a requirement that an accused person must, where relevant, exercise these rationally (for example, an accused person’s inability to give rational instructions to their legal practitioner would make them unfit to stand trial)

• any new test based on a person’s decision-making capacity or effective participation should require that capacity or participation to be exercised rationally

• rationality should be taken into account in determining unfitness to stand trial in some other way.

4.46 As discussed earlier, the test in the United States requires the ability to instruct a lawyer with a reasonable degree of rational understanding. In Scotland, the Scottish Law Commission, which formulated its test based on the European Convention of Human Rights, recommended that effective participation should capture the notion of full or rational appreciation of the proceedings.^[63] This recommendation was adopted in section 170 of the Criminal Justice and Licensing (Scotland) Act 2010 (Scot).^[64]

4.47 The South Australian test for unfitness to stand trial incorporates the requirement of rationality in each criterion for fitness to stand trial. Section 269H of the Criminal Law Consolidation Act 1935 (SA) provides that an accused person is not fit to stand trial if they are unable to

• understand, or to respond rationally to, the charge

• exercise (or to give rational instructions about the exercise of) procedural rights, or

• understand the nature of the proceedings, or to follow the evidence.

4.48 The New South Wales Law Reform Commission expressed a preliminary view that the current test for determining unfitness to stand trial, that does not require an accused person’s decisions to be rational, is unsatisfactory because it sets too low a standard for a fair trial.^[65] The New South Wales Law Reform Commission put forward two options:

• amend relevant criteria to indicate the need for rationality in respect of those criteria, in a similar way to South Australia, or

• introduce a general legislative requirement that an accused person be able to make rational decisions in relation to their participation in the trial before being considered fit to stand trial.^[66]

4.49 The Law Commission of England and Wales, on the other hand, did not propose that any new test be qualified with a requirement for rationality in respect of that test. Its proposed test focuses on the ‘process of understanding and reasoning as opposed to the content of the decision that is eventually arrived at’.^[67] However, the test does not necessarily exclude rationality. It requires a person to have the capacity to engage in a rational thought process but does not require a person to arrive at a rational decision. In this way, the test respects a person’s autonomy and their choice to make unwise decisions. The irrationality that would find a person unfit to stand trial would therefore be driven by the mental illness, intellectual disability or cognitive impairment.^[68]

4.50 In Victoria, the argument that the requirement of rationality is inherent in the Presser criteria remains open, however, the link between them has not been expressly articulated.^[69]

Question

7 Should the accused person’s capacity to be rational be taken into account in the test for unfitness to stand trial?

If yes, is this best achieved:

by requiring that each of the Presser criteria, where relevant, be exercised rationally

by requiring that the accused person’s decision-making capacity or effective participation be exercised rationally, if a new test based on either of these criteria is recommended, or

in some other way?

Issues specific to the Presser criteria

4.51 The next section discusses a number of potential issues concerning the current Presser criteria and in particular:

• whether the current Presser criteria should be changed

• whether there should be a distinction made between unfitness to plead and unfitness to stand trial

• the role of support measures in determining unfitness to stand trial

• the difficulty in assessing unfitness to stand trial.

Changing the Presser criteria

4.52 The current Presser criteria (set out above at [4.24]) have been criticised for being too general, lacking clarity in terms of what each criterion means and the extent to which each criterion has to be met.^[70] As Birgden and Thomson note, the word ‘substantial’ qualifies only one criterion with the remaining criteria not indicating the level of ability that is required.^[71]

4.53 Further, there may be a need to amend the Presser criteria because they no longer form a suitable basis for the test of unfitness to stand trial. For example, the accused person’s ability to ‘enter a plea to the charge’ and the accused person’s ability to ‘exercise the right to challenge jurors or the jury’ both constitute the second criterion. This means that if an accused person is able to enter a plea but cannot exercise their right to challenge jurors, the accused person may be found unfit to stand trial. The example suggests that the current criteria may not be operating well in practice. Combining the ability to enter a plea to the charge and the ability to challenge jurors in the second criterion may not be appropriate, particularly where the accused person is able to enter a plea to the charge and satisfy the remaining Presser criteria.

4.54 Another issue regarding the Presser criteria is whether the test for unfitness to stand trial should more properly reflect the principle of proportionality with regard to the actual proceedings faced by a particular accused person. Including an element of proportionality in a test for unfitness to stand trial is a way of considering the nature of individual proceedings and acknowledging that some proceedings are more difficult than others to follow. This can arise due to the complexities of the elements of the offence, the complexities of the evidence or the length of the trial.

4.55 The Law Commission of England and Wales’s preliminary view is that proportionality should not play a part in an assessment of fitness to stand trial, mainly because of the difficulty in predicting the complexity of the trial at the investigation of unfitness to stand trial stage.^[72]

4.56 In Australia, there is already some recognition of the principle of proportionality in case law. In R v Gillard, for example, the court held:

An accused who is not unfit for the purposes of a trial because there are a limited range of facts and issues, may well be unfit for the purposes of a long, complicated fraud trial. Much will depend upon the individual circumstances.^[73]

4.57 However, expressly recognising this principle in legislation may be important. This issue is particularly important in considering the question of whether the unfitness to stand trial process should be extended to the Magistrates’ Court where the hearing of a summary offence would be brief, easier to follow and demand a lower level of participation and assistance by the accused.^[74] In these circumstances, for example, being able to understand the nature of the charge and to enter a plea without satisfying the remaining Presser criteria may be sufficient for the hearing to be fair.

Question

8 If the unfitness to stand trial test remains the same, are changes required to the Presser criteria?

Unfitness to plead and unfitness to stand trial

4.58 A question may arise as to the appropriateness of including unfitness to enter a plea as a ground for unfitness to stand trial in all cases. Presently, being unable to understand the nature of the charge (section 6(1)(1)(a) of the CMIA) or being unable to enter a plea to the charge (the first part of section 6(1)(b) of the CMIA) is the basis of unfitness to stand trial. There are situations where the accused person is capable of understanding the nature of the charge, is able to enter a plea to the charge and is able to give meaningful instructions to their legal adviser to that effect (as required in section 6(1)(f) of the CMIA), but may not be able to understand the more complex or lengthy elements of the trial process.

4.59 Where an accused person in this situation wishes to plead guilty, the CMIA operates to preclude that plea, and requires the person to be subject to the special hearing process, because the CMIA requires capacity to understand the trial process even though in that situation no trial would occur. A question therefore arises as to whether the criteria for determining unfitness should be changed to reflect the difference between capacity to enter a plea to the charge and capacity to understand the full trial process.

Questions

 9 Should the criteria for unfitness to stand trial exclude the situation where an accused person is unable to understand the full trial process but is able to understand the nature of the charge, enter a plea and meaningfully give instructions to their legal adviser and the accused person wishes to plead guilty to the charge?

10 Do any procedural, ethical or other issues arise in creating this exclusion from the unfitness to stand trial test?

The role of support measures

4.60 The current process for determining unfitness to stand trial has been criticised because of the ‘possible danger of too readily dismissing the person’s capacity to comprehend’.^[75] Submissions to the Law Reform Committee indicated that the provision of court support services could provide a mechanism for overcoming barriers that an accused person with an intellectual disability or cognitive impairment may experience when interacting with the courts and may therefore minimise the potential for making findings of unfitness against them.^[76]

4.61 During its preliminary research, the Commission was made aware that in some cases the level of fitness of accused people, who would otherwise be unfit, may be enhanced if appropriate support was provided to them in court (for example, the support of a social worker or the provision of hearing loops to provide hearing assistance to people with a hearing impairment). The policy of the Department of Human Services is to ensure a person with a disability is accompanied by a person (such as an advocate or social worker) who can support them and explain the court process to them.^[77] The Commission’s preliminary research indicates that support for accused people in court is generally provided in pre-trial proceedings but not necessarily during the trial.

4.62 Another way of providing support measures to increase an accused person’s ability to become fit to stand trial could involve providing education to accused people about court processes and then testing their ability to retain that information. This could be particularly beneficial for improving the fitness to stand trial of accused people with intellectual disabilities. The United States, for example, allows accused people with intellectual disabilities to participate in a formal education program that aims to restore their fitness to stand trial.^[78]

4.63 There are good reasons why the availability of support measures should play a greater role in court processes. For an accused person, this provides them with the opportunity to participate fully in their trial. It also enables a full trial of the accused person where this is fair, which is in the public interest. This was discussed in the Queensland Court of Appeal decision in R v M,^[79] an appeal from Re IMM^[80] where the Queensland Mental Health Court found that a person with an intellectual disability was fit to be tried, because the trial court could adapt its procedures sufficiently to accommodate his condition:

To deny a person like [the accused] a trial would, having regard to both his interest in responding to the charge and possibly having his name cleared (while acknowledging of course that he bears no onus), and the interest of the community in ensuring that criminal charges are properly pursued, be frankly inconsistent with the rule of law, essentially because it would be discriminatory. Contemporary courts are sensitive to the varying needs of those who come before them.^[81]

4.64 There are a number of ways of increasing the level of support provided to accused people who may be unfit to stand trial. As discussed above at [4.62], in the United States accused people with intellectual disabilities can participate in a formal education program that aims to restore their fitness to stand trial.

4.65 Some jurisdictions have legislative provisions that enable the court to modify its processes to better suit people with an intellectual disability or cognitive impairment. In Queensland, for example, the Mental Health Court may appoint assistants to assist the court in hearings (by providing support to accused people). Assistants may be people who:

• have appropriate communication skills or appropriate cultural or social knowledge or experience

• have expertise in the aetiology, behaviour and care of people with an intellectual disability.^[82]

4.66 In England and Wales, the Youth Justice and Criminal Evidence Act 1999 (UK) provides that on application of the accused person, the court may direct that any examination of the accused person be conducted through an ‘intermediary’.^[83] The function of an intermediary is to communicate:

• to the accused person, questions put to the accused person

• to any person asking such questions, the answers given by the accused person in reply to them, and to explain such questions or answers so far as necessary to enable them to be understood by the accused person or the person in question.^[84]

4.67 Intermediaries also have a role under the Youth Justice and Criminal Evidence Act to assist victims and witnesses with intellectual disabilities or cognitive impairments in giving evidence.^[85] The Law Reform Committee recommended recently that the Victorian Government consider establishing a witness intermediary scheme modelled on the scheme in the United Kingdom.

4.68 Modifying court processes by providing a support person to assist the accused person may address some of the barriers that an accused person with an intellectual disability or cognitive impairment may experience in court.

4.69 Another way of increasing the level of support provided to accused people who may be unfit to stand trial could involve assisting the judiciary in managing proceedings involving accused people with an intellectual disability or cognitive impairment. Research indicates that people with intellectual disabilities are able to engage more with the court process with appropriate supports. For example, they are better able to participate where short sentences are used or a small amount of introductory information is provided when introducing new concepts.^[86]

4.70 The Law Reform Committee in its Inquiry into Access to and Interaction with the Justice System by People with an Intellectual Disability and their Families and Carers recognised the important role the judiciary plays in ensuring that people with an intellectual disability or cognitive impairment participate in the court process.^[87] The Law Reform Committee recommended that the Victorian Government support the Judicial College of Victoria to:

• provide more training opportunities for members of the judiciary about best practice management in proceedings involving a person with an intellectual disability or cognitive impairment^[88]

• develop, in consultation with members of the judiciary and the disability sector, guidance material on how the needs of people with an intellectual disability or cognitive impairment can be identified and appropriately met, including with modifications to court proceedings.^[89]

4.71 Finally, the Law Commission of England and Wales is considering submissions on supplementing expert assessments of fitness to stand trial with suggestions from the experts on how the accused person can be assisted during the trial in order to allow it to proceed fairly.^[90]

Questions

11 Are changes required to improve the level of support currently provided in court in trials for people who may be unfit to stand trial?

12 What would be the cost implications of any increase in support measures?

4.72 The Law Commission of England and Wales expressed the view that ‘special measures’ should play a greater role in the test for unfitness to stand trial.^[91] Its view is that in determining whether the accused person has decision-making capacity, consideration should be given to the extent to which special measures could assist the accused person to participate in their trial.^[92]

4.73 In Australia, there is some opportunity for courts to consider the availability of support measures in an assessment of unfitness to stand trial. In Ngatayi v The Queen,^[93] for example, the High Court held that whether an accused person is provided with an interpreter or assisted by counsel would be a factor in determining whether someone was able to understand the proceedings. However, it may still be useful to expressly provide for the consideration of support measures in an assessment of unfitness to stand trial to ensure that such measures are considered in every investigation into unfitness and to encourage the use of support measures in individual cases.^[94]

Question

13 Should the availability of support measures be taken into consideration when determining unfitness to stand trial?

Difficulty in assessing unfitness to stand trial

4.74 As discussed earlier, another issue concerning the test for determining unfitness to stand trial is the lack of clarity in the Presser criteria. The lack of clarity may be causing problems for expert assessments of unfitness to stand trial. There is evidence that in the United Kingdom clinicians are applying the criteria in an inconsistent manner.^[95] Further, an accused person who is assessed for unfitness to stand trial will be somewhere on the fitness continuum.^[96] The cut-off point on this continuum, or the point at which it becomes fair that the accused person stands trial, is a ‘subjective and difficult empirical judgment’ and ‘a moral, social and legal question’.^[97] Complicating this difficulty is the absence of a clear connection between what experts need to consider when assessing someone who may be unfit to stand trial and the legal test for unfitness to stand trial. The current test requires experts to interpret legal criteria by reference to clinical decision-making models.^[98]

4.75 If the concerns discussed in this section are indeed problems, it is important that the process for assessing unfitness to stand trial is improved. As Freckelton observes:

given that determinations have to be made about accused persons’ fitness to stand trial and given that those decisions are significantly influenced by expert evidence from psychiatrists and psychologists, it is important to reduce subjectivity and arbitrariness in the assessment process so far as that is possible by the provision of clear guidelines for what constitutes unfitness.^[99]

4.76 One option would be to reformulate the test so it is easier to apply. The discussion of options earlier in this chapter may assist in the development of a test with criteria that would be easier to apply by experts. However, while the difficulty in assessing unfitness to stand trial may be a reflection of the criteria, it may also be due to other factors, such as the lack of a standardised test.^[100]

Question

14 What changes can be made, if any, to enhance the ability of experts to assess an accused person’s unfitness to stand trial?

The process for investigating unfitness to stand trial

4.77 If the question of an accused person’s unfitness to stand trial arises in a committal proceeding in the Magistrates’ Court, the committal proceeding must be completed and if the accused person is committed for trial, the question of unfitness to stand trial must be reserved for the trial judge.^[101] If the judge determines that there is a real and substantial question as to the unfitness of the accused person to stand trial, an investigation into the accused person’s unfitness is then held before a jury.^[102] An investigation also proceeds in this way if the question of the accused person’s unfitness to stand trial is raised after the committal or at any time during the trial.^[103]

4.78 During the investigation into the accused person’s unfitness to stand trial, the court will hear any relevant evidence and submissions put to the court by the prosecution or the defence and the judge may also call evidence on their own initiative, including expert evidence.^[104] The judge must explain to the jury the reason for the investigation, the findings that may be made (whether the accused person is fit or unfit to stand trial) and that the standard of proof in relation to the fitness of the accused person to stand trial is the balance of probabilities.^[105]

4.79 As discussed at [4.14], if a jury finds the accused person unfit to stand trial, the matter proceeds to a special hearing before a jury unless the judge determines that the accused person is likely to become fit to stand trial within 12 months and adjourns the matter. A special hearing is also conducted if the accused person remains unfit following the period of adjournment.

Issues in relation to the process for determining unfitness to stand trial

4.80 The terms of reference ask the Commission to consider whether the process of determining unfitness to stand trial can be improved. In its preliminary research, the Commission identified a number of possible issues in relation to the current operation of the process for determining unfitness to stand trial. These issues relate to:

• the requirement to ‘plead’ in a committal proceeding where the question of unfitness to stand trial is raised

• the role of lawyers in the process for determining unfitness to stand trial

• the role of experts in the process for determining unfitness to stand trial

• jury involvement in all investigations of unfitness to stand trial

• the availability of a ‘consent mental impairment’ hearing following a finding of unfitness to stand trial

• the length of the process.

Requirement to ‘plead’ in a committal proceeding

4.81 A committal proceeding is a preliminary examination conducted by a magistrate to assess whether there is sufficient evidence to warrant an accused person being tried before a judge and jury for the offence charged.^[106] A committal proceeding is conducted when an accused person has been charged with an indictable offence and may be conducted when an accused person is charged with an indictable offence triable summarily.^[107]

4.82 A committal proceeding has a number of purposes. Its main purpose is to determine whether there is evidence of sufficient weight to support a conviction of the offence charged.^[108] This is a means of ‘filtering’ out unwarranted prosecutions and ensuring that there is a good reason for proceeding in the case. A committal proceeding also provides an early opportunity to discharge a person where the prosecution case is inadequate.^[109] Another purpose is to encourage the early entry of a guilty plea.^[110]

4.83 If the question of unfitness to stand trial arises in a committal proceeding, the CMIA provides that the committal proceeding must be completed in accordance with the Criminal Procedure Act 2009 (Vic).^[111] This in turn means that the magistrate must ask the accused person whether they plead guilty or not guilty,^[112] in line with one of the purposes of a committal proceeding, to encourage the early entry of a guilty plea.

4.84 An accused person who is unfit to stand trial could be, by definition, unable to enter a plea of guilty or not guilty. Despite this, the Criminal Procedure Act does not contain any guidance on how to modify committal proceedings where a question of unfitness to stand trial has been raised.^[113]

4.85 In its recent Inquiry into Access to and Interaction with the Justice System by People with an Intellectual Disability and their Families and Carers, the Law Reform Committee noted that the lack of a procedure specifically for accused people who may be unfit to stand trial has resulted in magistrates adopting different procedures to commit an accused person to trial where the question of unfitness to stand trial may be in issue.^[114] The Law Reform Committee recommended the adoption of a uniform committal procedure when the Magistrates’ Court considers unfitness to stand trial.^[115]

4.86 Any recommendation made on this issue would depend on any recommendations made in relation to the Magistrates’ Court’s jurisdiction to determine unfitness to stand trial (discussed in more detail in Chapter 6). If the Magistrates’ Court was given the power to determine unfitness to stand trial, the scope of this problem may be more limited.

Questions

15 Is there a need for a uniform procedure in committal proceedings where a question of unfitness to stand trial is raised?

16 What procedure should apply where a question of an accused person’s unfitness to stand trial is raised in a committal proceeding?

The role of lawyers in the process for determining unfitness to stand trial

4.87 The process of determining unfitness to stand trial under the CMIA begins when the question of an accused person’s unfitness to stand trial arises. Lawyers, particularly defence lawyers, are often the ones who will raise the question of unfitness to stand trial.

4.88 The Commission’s preliminary research suggests that lawyers who represent accused people who may be unfit to stand trial often face a number of ethical issues.

4.89 One ethical issue that can arise concerns the decision whether to raise the question of unfitness to stand trial on behalf of the client and consequently take the client through the CMIA process. This can be a difficult decision particularly when their client may be unable to provide instructions concerning what path they want to take. Where this is the case, a lawyer may be in a position where they have to make a decision on behalf of the client. In making this decision, a lawyer may feel conflicted between the benefits of the CMIA process for their client (for example, the availability of a special hearing process and the absence of recorded conviction and a sentence of imprisonment) and its potential drawbacks (for example, the indeterminate period of supervision).

4.90 The Law Reform Committee observed:

The primary challenge experienced by lawyers when working with clients with an intellectual disability or cognitive impairment is that clients often lack the ability to provide effective and adequate instructions. Conversely, a lawyer may lack experience working with people with intellectual disabilities or cognitive impairments, and may not communicate effectively with the client.^[116]

4.91 Another ethical issue that may arise quite frequently involves the difficulty experienced by lawyers in obtaining instructions from clients on how to proceed in a special hearing after they have been found unfit to stand trial. For example, the client may be unable to instruct their lawyer on whether they want to raise any defences to the charge, such as the mental impairment defence, which raises questions about the obligations of lawyers in these circumstances.

Questions

17 What ethical issues do lawyers face in the process for determining unfitness to stand trial?

18 What is the best way of addressing these ethical issues from a legislative or policy perspective?

The role of experts in the process for determining unfitness to stand trial

4.92 Expert reports play an important role in the process for determining unfitness to stand trial. The prosecution or the defence may request expert assessments of the accused person’s unfitness on their own initiative.

4.93 In addition, the CMIA provides that the court may order expert assessments after the question of unfitness to stand trial has been raised but pending the investigation into unfitness to stand trial by the jury,^[117] and also when the investigation into unfitness to stand trial is conducted.^[118] If the Director of Public Prosecutions wishes to abridge the period of adjournment ordered by the court (where the judge has determined that the accused person is likely to become fit to stand trial following the adjournment), the Director of Public Prosecution’s application must also be supported by an expert report.^[119]

4.94 In matters prosecuted by the Office of Public Prosecutions, they will usually request that the Victorian Institute of Forensic Mental Health (Forensicare) prepare a report. The assessment is conducted and the report is normally prepared by either a forensic psychiatrist or forensic psychologist employed by Forensicare. In some cases, where the accused person has an intellectual disability or cognitive impairment, such as an acquired brain injury, a neuropsychologist may be required to conduct the assessment. Private practitioners commonly provide assessments and reports for the defence. This could include psychiatrists, psychologists or other professionals, in the forensic and non-forensic areas of practice.

4.95 In its most recent annual report for 2011–12, Forensicare noted ‘the strong demand from Courts for psychiatric and psychological reports’ and that requests from the Office of Public Prosecutions on issues of unfitness to stand trial or the mental impairment defence ‘continued to take considerable time and effort’.^[120] In 2011–12, Forensicare prepared 40 reports for the Office of Public Prosecutions which was 10 fewer than the previous financial year due to the ‘difficulty that Forensicare has in allocating clinical resources to this work’.^[121] As at 1 July 2012, these reports are now funded by the Department of Justice.^[122]

4.96 At present, the Commission has little information on the issues that may arise in relation to the provision of expert reports to the court and the role of experts in the process for determining unfitness to stand trial. Potential issues may arise in relation to the qualifications of experts, the quality and utility of expert reports and the number of experts relied on in assessments of unfitness to stand trial. The Commission is interested in gathering information about these potential issues and other issues that may exist in this area.

Question

19 Are there any issues that arise in relation to the role of experts and expert reports in the process of determining unfitness to stand trial?

Jury involvement in all investigations of unfitness to stand trial

4.97 Currently under the CMIA, a jury determines the question of unfitness to stand trial in an investigation presided over by a judge.^[123]

4.98 The Commission’s preliminary research suggests that there is a need to examine the role of the jury in the unfitness to stand trial process. A key issue is whether it is necessary to have a jury determine the question of unfitness to stand trial in particular circumstances, such as where the prosecution and defence are in agreement that an accused person is unfit to stand trial, or in all cases. In cases where the prosecution and the defence agree on the unfitness of an accused person (based on expert reports), the question of whether an accused person is unfit to stand trial is not in issue. A jury is nonetheless empanelled and must hear the evidence that establishes that the accused person is unfit to stand trial. The jury is still required to consider and make a formal finding of fitness or unfitness. The process is said to leave jurors feeling confused about their role in the process, take up the time of the jurors and the court and deplete the jury pool without justification.

4.99 The Law Reform Committee recommended that the Victorian Government consider amending the CMIA to allow the trial judge to investigate an accused person’s fitness to stand trial, without a need for a jury, where the prosecution and defence agree.^[124] The Law Reform Committee observed that the requirement to conduct fitness investigations before a jury may place an unnecessary burden on the community and could exacerbate the stress and anxiety that accused people with intellectual disabilities or cognitive impairments ordinarily experience when in court. It outlined the main arguments for removing the requirement that the investigation into an accused person’s unfitness to stand trial be conducted before a jury:

• fitness investigations primarily involve technical matters that are more suitable to be heard by a judge alone

• a fitness hearing is not designed to be adversarial—no decisions are made about the person’s criminal responsibility

• a judge hearing evidence alone may be quicker, less formal and less confusing or stressful for a person with an intellectual disability or cognitive impairment.^[125]

4.100 The Commission does not currently have data on the findings that juries make in investigations into unfitness to stand trial in cases where the prosecution and defence agree that the accused person is unfit.

4.101 In Australia, courts in Tasmania and the Northern Territory have the power to dispense with an investigation into unfitness to stand trial and record that the accused person is unfit for trial if both the prosecution and defence agree.^[126]

4.102 More broadly, some have questioned the need for a jury at all in the investigation of unfitness to stand trial, even where the prosecution and the defence do not agree. In England and Wales, the requirement that a jury decide whether a person is fit to stand trial was based on the Criminal Lunatics Act 1800. In recent decades, however, a number of recommendations were made that the trial judge be able to determine the issue. The Butler Committee in its Report of the Committee on Mentally Abnormal Offenders said:

It is arguable that the jury are not a suitable body to decide a medico-legal issue and that the judge is better able to form a view on the basis of the medical reports, if necessary in the absence of the defendant. … The involvement of the jury in the process of determining [unfitness to stand trial] is a historical survival from the days when prisoners were subjected to “peine forte et dure”… Insofar as the question is whether the trial should proceed, juries are not normally involved in a decision of this sort. … A decision of the issue by the judge would be more expeditious than trial by jury, and this is of some importance where the decision has to be made in the middle of the trial.^[127]

4.103 Similarly the Auld Report, in its Review of the Criminal Courts of England and Wales observed:

In the majority of cases the jury’s role on the issue of unfitness to plead is little more than a formality because there is usually no dispute between the prosecution and the defence that the defendant is unfit to plead. However, the procedure is still cumbrous, especially when the issue is raised, as it mostly is, on the arraignment, because it can then require the empanelling of two juries. More importantly it is difficult to see what a jury can bring to the determination of the issue that a judge cannot. He decides similar questions determinative of whether there should be a trial, for example, whether a defendant is physically or mentally fit to stand or continue trial in applications to stay the prosecution or for discharge of the defendant (citation omitted).^[128]

4.104 England and Wales has since dispensed with the requirement for a jury in determinations of fitness to stand trial. In 2004, the Criminal Procedure (Insanity) Act 1964 (UK) was amended so that section 4(5) now states that the court determines the question of fitness to be tried, without a jury.

4.105 In Australian jurisdictions, other than the Northern Territory and Tasmania, the trial judge or a specialist division of the court determines the question of unfitness to stand trial.^[129] In South Australia this process can be dispensed with if the prosecution and the defence agree.^[130]

4.106 The Community Development Committee, whose report formed the basis of the CMIA, was of the view that the function of a judge is to determine questions of law and juries determine questions of fact.^[131] This is likely the reason the CMIA prescribed an investigation process involving a jury. Further, a finding that an accused person is unfit to stand trial has serious consequences and may lead to a lengthy period of detention if they are ultimately subject to a supervision order.

4.107 In cases where the prosecution and defence do not agree, the retention of the jury may provide an added layer of scrutiny in a process. Such scrutiny could be warranted especially because the CMIA may allow the defence of mental impairment to be resolved by consent between the prosecution and the defence in place of a special hearing (see discussion at [4.110]). This could provide a justification for retaining the jury requirement in cases where there is no agreement between the parties. Further, it is questionable whether there can ever be ‘agreement’ or ‘consent’ between the parties when the accused person is unable to instruct the defence.

4.108 Other jurisdictions have built safeguards into the process that could protect it from the potential of abuse. The Criminal Procedure (Insanity) Act 1964 (UK), for example, requires the agreement of two registered medical practitioners to establish a finding of unfitness.

4.109 Another safeguard could involve a process where the judge may independently assess whether the evidence establishes unfitness to stand trial, if the prosecution and defence agree that the accused person is unfit. Under the CMIA, there is a similar process in establishing the defence of mental impairment by consent.^[132]

Question

20 Should the CMIA provide for a procedure where unfitness to stand trial is determined by a judge instead of a jury? If yes:

should the process apply only where the prosecution and the defence agree that the accused person is unfit to stand trial or should a jury not be required in other circumstances?

what safeguards, if any, should be included in the process?

A ‘consent mental impairment’ hearing following a finding of unfitness to stand trial

4.110 In relation to the defence of mental impairment, if the prosecution and defence agree that the evidence establishes the defence, the trial judge may hear the evidence and, if satisfied that the evidence establishes the defence, may direct the recording of a verdict of not guilty because of mental impairment.^[133] This is often referred to as a ‘consent mental impairment’ hearing, a procedure introduced several years after the introduction of the CMIA by the Crimes (Homicide) Bill 2005 (Vic) after the Commission’s recommendation as part of its Defences to Homicide reference.

4.111 Although the finding of not guilty because of mental impairment is available at special hearings to people found unfit to stand trial, there is ambiguity on whether a court can hold a consent mental impairment hearing after a finding of unfitness to stand trial.

4.112 There are a number of provisions in the CMIA which suggest that a court cannot proceed with a consent mental impairment hearing following a finding of unfitness to stand trial. Section 12(5) of the CMIA, for example, continues to provide that if the jury finds the accused person unfit to stand trial and the judge determines that the accused person is unlikely to become fit within 12 months, the court must proceed to hold a special hearing.^[134] Section 21(4) in Part 4 of the CMIA provides that a ‘trial judge’ conducts the consent mental impairment hearing—the rest of Part 4 of the CMIA that deals with the defence of mental impairment also uses the term ‘trial judge’ throughout. However, the term is not used at all in Part 3 of the CMIA that deals with special hearings. The second reading speech of the Crimes (Homicide) Bill 2005 that introduced consent mental impairment hearings also makes no mention of special hearings and seems to contemplate that the consent mental impairment hearing applies in place of a trial. Finally, another justification for not allowing for a consent mental impairment hearing in place of a special hearing is to recognise that the accused person has been found unfit to stand trial and may not be capable of instructing their lawyer to consent to the matter being determined by a judge rather than a jury.

4.113 In DPP v CJC (CJC),^[135] Justice Osborn rejected a number of the arguments outlined above and found that a consent mental impairment hearing may be held after a finding of unfitness to stand trial instead of a special hearing. His Honour provided a number of reasons for this including:

• A consent mental impairment hearing would achieve the purpose of a special hearing (that is, to determine whether the accused person is not guilty because of mental impairment) and the requirement that a special hearing is conducted as close as possible to a criminal trial.^[136]

• Part 3 of the CMIA on unfitness to stand trial must be read together with Part 4 of the CMIA on the mental impairment defence. For example, the purpose of a special hearing to determine whether the accused person is ‘not guilty of the offence because of mental impairment’ in Part 3 can only be given content by reference to section 20 of the CMIA in Part 4 that sets out the test for the mental impairment defence. This implies that the consent mental impairment hearing process would apply to people found unfit to stand trial.^[137]

4.114 More recently, in DPP v Watson,^[138] Justice Bell found that a consent mental impairment hearing was not available following a finding of unfitness to stand trial. The reasoning for this decision against allowing a consent mental impairment hearing was based on the accused person’s inability to give instructions to counsel to agree to the hearing.^[139] His Honour said:

it is a very serious thing to conclude that counsel can exercise decision-making capacity on behalf of an accused without instructions, especially where the consequence would be that the accused would thereby lose the opportunity to test the prosecution case and obtain an acquittal. As I saw it, such an interpretation had to be unmistakably clear by express words or necessary implication. The terms of [section 21(4) on consent mental impairment hearings] did not seem to me to be unmistakably clear.^[140]

4.115 There may be good reasons to allow a ‘consent mental impairment’ hearing following a finding of unfitness to stand trial. In CJC, for example, the accused person and his mother were visibly distressed during court hearings, which may have made it more humane not to force them to take part in a special hearing before a jury. Justice Osborn said, ‘these proceedings should be no more of a public spectacle of suffering than is necessary’.^[141] Further, it can save time and resources to dispense with the process when appropriate where there is undisputed evidence that the accused person is not guilty because of mental impairment. However, the counter argument that an accused person who is unfit to stand trial is unable to give instructions and therefore should not be subject to a ‘consent’ mental impairment procedure is a compelling one, particularly because lawyers owe a duty to their clients to act in accordance with the client’s instructions. The availability of such a procedure may also have implications on the right of the accused person to recognition and equality before the law and their right to a fair hearing of criminal proceedings.^[142]

4.116 In any case, the different decisions by the court in relation to this issue outlined above may warrant an amendment to the CMIA to clarify any ambiguity in this area.

Question

21 Should a ‘consent mental impairment’ hearing be available following a finding of unfitness to stand trial?

The length of the process

4.117 The unfitness to stand trial process is potentially lengthy for a number of reasons:

• it involves empanelling two juries—one to determine whether the accused person is unfit to stand trial and a second to determine whether the accused person committed the offence if they are found unfit to stand trial, and

• it can involve a 12 month adjournment, following a finding of unfitness to stand trial by the jury, if the judge determines that the accused person is likely to become fit within 12 months.

4.118 If the question of the accused person’s unfitness to stand trial arises again on the day of the trial it may extend the process further. The question of the accused person’s unfitness to stand trial could also be raised for the first time on the day of the trial. It is not entirely clear whether there is a consistent way in which judges address situations where this happens. However, the CMIA provides that if there is a real and substantial question as to the fitness of the accused person to stand trial at any time during a trial, the judge must adjourn or discontinue the trial and proceed with an investigation into the accused person’s fitness to stand trial by a jury.^[143]

4.119 The length of the process can be difficult for both victims and accused people who may be unfit to stand trial. For victims, it involves waiting for a lengthy period before reaching some resolution. For accused people who may be unfit to stand trial, delays may affect their ability to participate in proceedings. People with a mental illness, cognitive impairment or intellectual disability often have difficulty with memory, especially with storing information in their memory and recalling the details or information.^[144] It is therefore preferable that any process is as expeditious as it can be, where appropriate.

Question

22 In your experience as either a person subject to the CMIA, a family member of a person subject to the CMIA or a victim in a CMIA matter, how has the length of the unfitness process affected you?

4.120 If judges and magistrates are given the jurisdiction to determine unfitness to stand trial, the reduction in time spent to empanel two juries could have an effect on the length of the unfitness to stand trial process. It is also worth considering whether there are other ways of expediting the unfitness to stand trial process.

Question

23 Would removing the jury’s involvement in investigations of unfitness to stand trial be likely to expedite the process?

4.121 The Law Reform Committee recently recommended that the Victorian Government investigate procedures adopted in the United Kingdom for determining unfitness to stand trial, with a view to examining whether these procedures could provide for opportunities to resolve determinations of unfitness to stand trial in Victoria more expeditiously.^[145] The Law Reform Committee cited, as an example, a procedure in England and Wales where courts may defer the question of fitness to stand trial and proceed to examine an accused person’s criminal responsibility first, up to the opening case for the defence. The examination of fitness to stand trial in this alternative procedure is only necessary if after the examination of criminal responsibility the accused person is not acquitted. The court may adopt this procedure if it is ‘of opinion that it is expedient to do so and in the interests of the accused’ having regard to the nature of the supposed disability.^[146]

4.122 The opportunity to dispense with one stage of the process may provide for a less lengthy procedure and the possibility of an early acquittal.^[147] However, the New South Wales Law Reform Commission has noted two weaknesses with the process in England and Wales:

• When determining criminal responsibility, the consideration of the mental elements of the offence are excluded and the question for the jury is limited to whether or not the accused person did the act or omission charged.

• The examination of criminal responsibility can only proceed up to the opening case for the defence, even though there is evidence that may not be called by the prosecution that may be capable of exonerating the accused.^[148]

4.123 These two issues could be addressed by:

• allowing the mental element to be considered when criminal responsibility is determined

• providing for an opportunity for the defence case to be taken into account when criminal responsibility is determined.

4.124 The New South Wales Law Reform Commission noted that in Canada the court has a discretion to direct that the defence case be taken into account when criminal responsibility is determined. Determination of the issue of fitness to stand trial may be deferred ‘until a time not later than the opening of the case for the defence or, on motion of the accused person, any later time that the court may direct’.^[149]

4.125 Deferring the unfitness to stand trial investigation to follow an examination of the accused person’s criminal responsibility may be more efficient and ultimately lead to the same outcome for that person. However, the benefits of this approach may come at the cost of subjecting an accused person to a trial where they may be unfit to stand trial.

Questions

24 How frequent is it for an accused person to be acquitted at a special hearing, following a finding of unfitness?

25 What procedures could be implemented to expedite the unfitness to stand trial process?

Special hearings to determine criminal responsibility

4.126 A special hearing is a means of determining the criminal responsibility of a person who has been found unfit to stand trial. Its purpose is to determine whether on the evidence available the person who has been found unfit to stand trial is not guilty, not guilty because of mental impairment or committed the offence.^[150]

4.127 A special hearing is conducted as closely as possible to a criminal trial.^[151] The accused person found unfit to stand trial is taken to have pleaded not guilty to the offence.^[152] Unlike a criminal trial, the accused person is not expected to participate in the hearing.^[153] Instead their interests are represented by their legal representative as far as this is possible.^[154]

4.128 The Commission has identified a number of possible issues in relation to special hearings that are primarily based on the findings available in special hearings. These include:

• the suitability of findings in special hearings, and

• the directions to the jury on the findings in special hearings.

Suitability of findings in special hearings

4.129 Following a special hearing, the jury can find that the accused person ‘committed the offence charged or an offence available as an alternative’, that is characterised as a ‘qualified finding of guilt’.^[155]

4.130 The New South Wales Law Reform Commission observed that the qualified finding of guilt may cause the perception that the accused person has been found guilty of an offence, even though there has not been a usual trial of the evidence, that would enable a full investigation of the facts.^[156] Further, that same perception could lead to a misunderstanding that the accused person has been found guilty and yet ‘escapes’ criminal sanctions. A finding that more accurately labels the outcome of a special hearing may be preferable to clarify the outcome of a special hearing.

4.131 The qualified finding of guilt in Victoria contrasts with the equivalent finding available in Tasmania. Tasmania provides for a finding that ‘a finding cannot be made that the defendant is not guilty of the offence charged’.^[157] It also contrasts with the equivalent finding recommended by the Community Development Committee, whose report formed the basis of the CMIA, that ‘on the limited evidence available, a finding cannot be made that the person is not guilty of the offence or any offence available as an alternative’.^[158] Recently, the New South Wales Law Reform Commission suggested a finding that ‘the accused person was unfit to be tried and was not acquitted’ of the offence charged.^[159]

Question

26 Should changes be made to the findings available in special hearings?

Directions to the jury on findings in special hearings

4.132 At the commencement of a special hearing, the judge must explain to the jury:

• that the accused person is unfit to stand trial

• the meaning of being unfit to stand trial

• the purpose of a special hearing

• the findings that are available

• the standard of proof required for those findings.^[160]

4.133 As discussed earlier, section 17(1) of the CMIA provides that the following findings are available to the jury at a special hearing: not guilty, not guilty of the offence because of mental impairment and committed the offence charged. Recently, there has been some confusion on the extent of the trial judge’s obligation to direct the jury on the findings available in special hearings, particularly whether the judge must explain all three possible findings.

4.134 In R v Langley (Langley),^[161] the trial judge only explained two findings to the jury that were open on the evidence. The trial judge did not tell the jury that they could find the defendant not guilty because of mental impairment. The Court of Appeal held that the trial judge should have explained all three findings to the jury. It said that whether or not the defendant was suffering from a mental impairment was clearly a question of fact for the jury to determine.^[162] This was despite the fact that at the special hearing there had been no positive or direct evidence that the defendant had a mental impairment at the time of the offence. It means that even where there is no evidence in relation to the finding, or when the defendant wishes that the finding not be left to the jury, all findings must still be put to the jury.^[163]

4.135 The approach taken in Langley is potentially inconsistent with the approach taken by the High Court when considering a very similar issue. In Subramaniam v The Queen,^[164] the High Court considered section 21(4) of the Mental Health (Criminal Procedure) Act 1990 (NSW) that sets out what the trial judge should explain to the jury, including ‘the verdicts which are available’. The High Court stated that the trial judge must direct the jury on the verdicts that are ‘relevantly available … in this case not guilty of the offence(s) charged, or, that on the limited evidence available, the accused committed the offences charged’.^[165] The High Court did not say that the trial judge should have directed the jury on the remaining two findings, (‘not guilty on the ground of mental illness’ or ‘on the limited evidence available, the accused person committed an offence available as an alternative to the offence charged’).

4.136 The approach taken in Langley may also be inconsistent with the recent change that has taken place in relation to jury directions, driven by the introduction of the Jury Directions Act 2013 (Vic). Among the aims of the Jury Directions Act is to reduce the complexity of jury directions in criminal trials and to assist the trial judge to give jury directions in a manner that is as clear, brief, simple and comprehensible as possible.^[166] The intention of the legislation is that in giving directions in criminal trials, trial judges should give directions on only so much of the law as the jury needs to know to determine the issues in the trial.^[167] This could exclude matters not raised in evidence, such as the additional verdict in Langley. However, the procedure specified by the Jury Directions Act does not apply to directions given by trial judges under other legislation and would therefore not apply to the provisions of the CMIA.^[168] Further amendment to the Jury Directions Act could affect these provisions.

Question

27 What is the most appropriate way of directing the jury on the findings in special hearings?

Appeals against findings of unfitness to stand trial and findings at special hearings

Current law under the CMIA

4.137 If a jury makes a finding of unfitness, the accused person has a right to appeal the finding of unfitness to the Court of Appeal.^[169] Following a special hearing, a finding that the accused person committed the offence is subject to appeal in the same manner as if they had been convicted of an offence.^[170] A finding that the accused person is not guilty because of mental impairment can also be appealed to the Court of Appeal.^[171] For a discussion of appeals in relation to a not guilty because of mental impairment verdict, see Chapter 5.

Principles underpinning appeals

4.138 Appeals provide the opportunity for a higher court to reconsider a decision of the lower court.^[172] The opportunity to reconsider a decision of the lower court has a number of functions:

• To protect against miscarriages of justice—by avoiding wrongful convictions and providing a forum where any concerns on the fairness of the trial can be addressed.

• To maintain consistency between trial courts—this is achieved by correcting inconsistent applications of the law and providing clarification and guidance on how the law should be applied.

• To provide legitimacy to the criminal justice system—appeals maintain public confidence in the criminal justice system by avoiding miscarriages of justice and holding judges accountable for their decisions.^[173]

4.139 The opportunity to appeal in this area is particularly important given the vulnerability of accused people who are found unfit to stand trial and the serious consequences of being found unfit to stand trial (and a subsequent finding that the person committed the offence charged). This includes the indefinite duration of supervision orders and the rigorous conditions to which the person is subject.

4.140 Despite this, appeals in this area seem to be infrequent. Eagle and Adams, when examining the frequency of appeals in New South Wales, found that there were also very few appeals in Victoria.^[174] Eagle and Adams note that there appears to have only been one appeal of an unfitness finding since the introduction of the CMIA.^[175] They observe that avenues for appeal appear to be very limited in this area^[176] and argue that given the vulnerability of these people, rights to appeal should be more readily available.^[177]

4.141 It is unclear why appeals are so infrequently pursued and whether they should be pursued more often. The infrequency of appeals could suggest that court processes and the safeguards in place are operating to produce appropriate outcomes. It could also reflect that in a high proportion of these cases the parties agree with the conduct and outcome of the case (for example, they agree on the accused person’s unfitness to stand trial) and therefore perceive no grounds of appeal. It could, however, also be that people who are unfit to stand trial are less likely to understand their rights or have the capacity to instruct their lawyer to pursue avenues of appeal, or perhaps their lawyers do not pursue the matter on their behalf because of a perception that it will be unsuccessful.

Question

28 Are there any barriers to accused people pursuing appeals in relation to unfitness to stand trial and findings in special hearings?

1. Arlie Loughnan, Manifest Madness: Mental Incapacity in Criminal Law (Oxford University Press, 1st ed, 2012) 67.

   ↑

2. R A Duff, Trials and Punishments (Cambridge University Press, 1986) 119.

   ↑

3. Richard J Bonnie, ‘The Competence of Criminal Defendants: A Theoretical Reformulation’ (1992) 10(3) Behavioural Sciences and the Law 291, 295.

   ↑

4. R v Cumming [2006] 2 NZLR 597, 608.

   ↑

5. Warren J Brookbanks, ‘Fitness to Plead and the Intellectually Disabled Offender’ (1994) 1(2) Psychiatry, Psychology and Law 171, 172.

   ↑

6. (1831) 1 Lewin 62; 168 Eng Rep 960.

   ↑

7. (1836) 7 C&P 303; 173 ER 135.

   ↑

8.   Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) s 7(1).

   ↑

9.   Ibid ss 7(2), (3).

   ↑

10. Ibid s 6.

    ↑

11. Ibid s 11(4).

    ↑

12. Ibid s 14(4).

    ↑

13. Ibid s 14A.

    ↑

14. Ibid ss 12(5), 14(2).

    ↑

15. Ibid s 17(1).

    ↑

16. Ibid s 16(1).

    ↑

17. Ibid s 16(2)(a).

    ↑

18. Ibid s 18(3)(a).

    ↑

19. Ibid ss 18(3)(b)–(c).

    ↑

20. Ibid s 18(1).

    ↑

21. Ibid ss 18(4), 23.

    ↑

22. Ibid ss 18(2), 24AA.

    ↑

23. Ibid s 26(2).

    ↑

24. Office of Public Prosecutions, Submission No 20 to Law Reform Committee, Parliament of Victoria, Inquiry into Access to and Interaction with the Justice System by People with an Intellectual Disability and their Families and Carers, 9 September 2011, 3–4.

    ↑

25. Brookbanks, above n 5, 173.

    ↑

26. (1831) 1 Lewin 62; 168 Eng Rep 960.

    ↑

27. Brookbanks, above n 5, 173.

    ↑

28. Ibid.

    ↑

29. (1831) 1 Lewin 62; 168 Eng Rep 960.

    ↑

30. Brookbanks, above n 5, 173.

    ↑

31. Ibid.

    ↑

32. (1836) 7 C&P 303, 304; 173 Eng Rep 135 (1688-1867).

    ↑

33. R v Presser [1958] VR 45.

    ↑

34. Ibid 48.

    ↑

35. Victoria, Parliamentary Debates, Legislative Assembly, 18 September 1997, 187 (Jan Wade, Attorney-General).

    ↑

36. Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) s 6.

    ↑

37. W J Brookbanks and R D Mackay, ‘Decisional Competence and ‘Best Interests’: Establishing the Threshold for Fitness to Stand Trial’ (2010) 12(2) Otago Law Review 265, 265.

    ↑

38. Ibid 271.

    ↑

39. Brookbanks, above n 5, 173–4.

    ↑

40. Ibid.

    ↑

41. Ibid 174.

    ↑

42. Law Commission, Unfitness to Plead, Consultation Paper No 197 (2012) 27–32.

    ↑

43. See, eg, Law Commission, Unfitness to Plead, Consultation Paper No 197 (2012) 51–67; W J Brookbanks and R D Mackay, ‘Decisional Competence and ‘Best Interests’: Establishing the Threshold for Fitness to Stand Trial’ (2010) 12(2) Otago Law Review 265; New South Wales Law Reform Commission, People with Cognitive and Mental Health Impairments in the Criminal Justice System: Criminal Responsibility and Consequences, Consultation Paper No 6 (2010) 7–12.

    ↑

44. Dusky v United States 362 US 402 (1960).

    ↑

45. Brookbanks and Mackay, above n 37, 265.

    ↑

46. Law Commission, above n 42, 62.

    ↑

47. Ibid 39.

    ↑

48. Ibid 62.

    ↑

49. Ibid 55.

    ↑

50. Ibid.

    ↑

51. Ibid.

    ↑

52. Ibid 54.

    ↑

53. W Brookbanks and J Skipworth, ‘Fitness to Plead’ in Brookbanks and Simpson (eds) Psychiatry and the Law (LexisNexis New Zealand, Wellington, 2007) 157.

    ↑

54. Law Commission, above n 42, 63–4.

    ↑

55. Bonnie, above n 3, 293–4.

    ↑

56. Ibid 303. See also, R Mackay, ‘Unfitness to Plead – Some Observations of the Law Commission’s Consultation Paper’ (2011) 6 Criminal Law Review 433.

    ↑

57. Helen Howard, ‘Unfitness to Plead and the Vulnerable Defendant: An Examination of the Law Commission’s Proposals for a New Capacity Test’ (2011) 75 Journal of Criminal Law 194, 201–2.

    ↑

58. Ibid.

    ↑

59. Scottish Law Commission, Discussion Paper on Insanity and Diminished Responsibility, Discussion Paper No 122 (2003) 49.

    ↑

60. Scottish Law Commission, Report on Insanity and Diminished Responsibility, Report No 195 (2004) 48.

    ↑

61. New South Wales Law Reform Commission, People with Cognitive and Mental Health Impairments in the Criminal Justice System: Criminal Responsibility and Consequences, Consultation Paper No 6 (2010) 10.

    ↑

62. Law Reform Committee, Parliament of Victoria, Inquiry into Access to and Interaction with the Justice System by People with an Intellectual Disability and their Families and Carers (2013) 231.

    ↑

63. Scottish Law Commission, above n 59, 48–9.

    ↑

64. Section 170 of the Criminal Justice and Licensing (Scotland) Act 2010 (Scot) inserts a new section 53F into the Criminal Procedure (Scotland) Act 1995 (Scot).

    ↑

65. New South Wales Law Reform Commission, above n 61, 9.

    ↑

66. Ibid.

    ↑

67. Law Commission, above n 42, 65.

    ↑

68. Ian Freckelton, ‘Rationality and Flexibility in Assessments of Fitness to Stand Trial’ (1996) 19(1) International Journal of Law and Psychiatry 39, 51.

    ↑

69. Ibid 45.

    ↑

70. Astrid Birgden and Don Thomson, ‘The Assessment of Fitness to Stand Trial for Defendants with an Intellectual Disability: A Proposed Assessment Procedure Involving Mental Health Professionals and Lawyers’ (1999) 6(2) Psychiatry, Psychology and Law 207, 209.

    ↑

71. Ibid.

    ↑

72. Law Commission, above n 42, 73–7.

    ↑

73. [2006] SASC 46 (23 February 2006) [50].

    ↑

74. Birgden and Thomson, above n 70, 211. In any case, if the current test for fitness to stand trial is maintained, it would likely have to be adapted to apply to the Magistrates’ Court (for example, the requirement that an accused person is able to challenge a juror would be inapplicable given that the Magistrates’ Court has no jury trials). For a more detailed discussion of the fitness to stand trial process in the Magistrates’ Court, see Chapter 6.

    ↑

75. Victorian Intellectual Disability Review Panel, Submission, 17 December 1992, 8, cited in Freckelton, ‘Rationality and Flexibility in Assessments of Fitness to Stand Trial’, above n 68, 45.

    ↑

76. Law Reform Committee, above n 62, 230.

    ↑

77. Disability Services, Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 Practice Guidelines (Department of Human Services, 2007) 26.

    ↑

78. Robert D Miller and Edward J Germain, ‘Inpatient Evaluation of Competency to Stand Trial’ (1989) 9(3) Health Law in Canada 74–8.

    ↑

79. [2002] QCA 464 (15 November 2002).

    ↑

80. [2002] QMHC12 (28 June 2002).

    ↑

81. [2002] QCA 464 (15 November 2002) [15] (de Jersey CJ).

    ↑

82. Mental Health Act 2000 (Qld) s 410.

    ↑

83. Youth Justice and Criminal Evidence Act 1999 (UK) s 33BA(3). This section of the Youth Justice and Criminal Evidence Act is not yet in force.

    ↑

84. Ibid s 33BA(4).

    ↑

85. Youth Justice and Criminal Evidence Act 1999 (UK) s 29(2).

    ↑

86. William R Lindsay ‘Adaptations and Developments in Treatment Programs for Offenders with Developmental Disabilities’ (2009) 16 Psychiatry, Psychology and Law 18, 23.

    ↑

87. Law Reform Committee, above n 62, 216.

    ↑

88. Ibid 222.

    ↑

89. Ibid.

    ↑

90. Law Commission, Unfitness to Plead, Analysis of Submissions (2013) 32.

    ↑

91. Law Commission, above n 42, 80. The Law Commission of England and Wales uses the term ‘special measures’ to refer to measures that assist vulnerable people to participate in proceedings. This paper uses the term ‘support measures’.

    ↑

92. Ibid 86.

    ↑

93. (1980) 147 CLR 1, 9.

    ↑

94. Law Commission, above n 42, 88.

    ↑

95.   N J Blackwood et al, ‘Fitness to Plead and Competence to Stand Trial: A Systematic Review of the Constructs and their Application’ (2008) 19(4) Journal of Forensic Psychiatry and Psychology 576, 586.

    ↑

96.   K C Glass, ‘Refining Definitions and Devising Instruments: Two Decades of Assessing Mental Competence’ (1997) 20(1) International Journal of Law and Psychiatry 5.

    ↑

97.   Birgden and Thomson, above n 70, 211.

    ↑

98.   Lisa Chantler and Karen Heseltine, ‘Fitness: What is the Role of Psychometric Assessment?’ (2007) 14(2) Psychiatry, Psychology and Law 350, 352.

    ↑

99.   Freckelton, ‘Rationality and Flexibility in Assessments of Fitness to Stand Trial’, above n 68, 54.

    ↑

100. Law Commission, above n 42, 95–6.

     ↑

101. Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) s 8.

     ↑

102. Ibid ss 8(2), 7(3).

     ↑

103. Ibid ss 9(1)–(2).

     ↑

104. Ibid s 11(1).

     ↑

105. Ibid s 11(3).

     ↑

106. Richard Fox, Victorian Criminal Procedure: State and Federal Law (Monash Law Book Co-operative Ltd, 13th ed) (2010) 221–2.

     ↑

107. Ibid.

     ↑

108. Criminal Procedure Act 2009 (Vic) s 97.

     ↑

109. Fox, above n 106, 222.

     ↑

110. Ibid.

     ↑

111. Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) s 8(1)(a).

     ↑

112. Criminal Procedure Act 2009 (Vic) s 144(1)(a).

     ↑

113. Law Reform Committee, above n 62, 235.

     ↑

114. Ibid.

     ↑

115. Ibid 236.

     ↑

116. Ibid 205.

     ↑

117. Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) s 10(1)(d).

     ↑

118. Ibid s 11(1).

     ↑

119. Ibid s 13(2).

     ↑

120. Victorian Institute of Forensic Mental Health, Report of Operations 2011–2012 (2012) 32.

     ↑

121. Ibid.

     ↑

122. Ibid.

     ↑

123. Crimes (Mental Impairment and Unfitness to be Tried) Act (Vic) s 8(2).

     ↑

124. Law Reform Committee, above n 62, 228.

     ↑

125. Ibid 227.

     ↑

126. Criminal Justice (Mental Impairment) Act 1999 (Tas) s 19; Criminal Code Act 1983 (NT) s 43T(1).

     ↑

127. Home Office and Department of Health and Social Security, Report of the Committee on Mentally Abnormal Offenders, Cmnd 6244 (1975) [10.22] (‘Butler Report’).

     ↑

128. Lord Justice Auld, Review of the Criminal Courts of England and Wales: A Report (Stationery Office, 2001) [213].

     ↑

129. See Mental Health (Forensic Provisions) Act 1990 (NSW) s 11; Mental Health Act 2000 (Qld) s 270; Criminal Law (Mentally Impaired Accused) Act 1996 (WA) s 12; Criminal Law Consolidation Act 1935 (SA) ss 269M, 269N.

     ↑

130. Criminal Law Consolidation Act 1935 (SA) ss 269M(a)(5), 269N(B)(5).

     ↑

131. Community Development Committee, Parliament of Victoria, Inquiry into Persons Detained at the Governor’s Pleasure (1995) 176.

     ↑

132. Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) s 21(4).

     ↑

133. Ibid.

     ↑

134. Ibid s 12(5).

     ↑

135. [2008] VSC 585 (18 December 2008).

     ↑

136. Ibid [6], [12].

     ↑

137. Ibid [19].

     ↑

138. [2013] VSC 245 (7 May 2013).

     ↑

139. Ibid [3].

     ↑

140. Ibid [9].

     ↑

141. [2008] VSC 585 (18 December 2008) [35].

     ↑

142. DPP v Watson [2013] VSC 245 (7 May 2013) [11]; Charter of Human Rights and Responsibilities Act 2006 (Vic) ss 8, 24–5.

     ↑

143. Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) s 9(2).

     ↑

144. R Milne and R Bull, ‘Interviewing Witnesses with Learning Disability for Legal Purposes: A Review’ (2001) 29 British Journal of Learning Disabilities, 93–7.

     ↑

145. Law Reform Committee, above n 62, 240.

     ↑

146. Criminal Procedure (Insanity) Act 1964 (UK) s 4(2).

     ↑

147. New South Wales Law Reform Commission, above n 61, 38.

     ↑

148. Ibid 38–9.

     ↑

149. Criminal Code, RSC 1985 s 672.25(2)(b).

     ↑

150. Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) s 15.

     ↑

151. Ibid s 16(1).

     ↑

152. Ibid s 16(2)(a).

     ↑

153. Law Commission, above n 42, 23.

     ↑

154. Ibid.

     ↑

155. Crimes (Mental Impairment and Unfitness to be Tried) Act (Vic) ss 17(1)(c), 18(3).

     ↑

156. New South Wales Law Reform Commission, above n 61, 42.

     ↑

157. Criminal Justice (Mental Impairment) Act 1999 (Tas) s 17.

     ↑

158. Community Development Committee, above n 131, 183.

     ↑

159. New South Wales Law Reform Commission, above n 61, 42.

     ↑

160. Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) s 16(3).

     ↑

161. [2008] VSCA 81 (21 May 2008).

     ↑

162. Ibid [38].

     ↑

163. Ian Freckelton, ‘Mandatory Procedures and Fairness in Mental Impairment Hearings’ (2009) 16 (2) Psychiatry, Psychology and Law 191, 195.

     ↑

164. [2004] HCA 51 (10 November 2004).

     ↑

165. Ibid [37].

     ↑

166. Jury Directions Act 2013 (Vic) s 1.

     ↑

167. Ibid s 5(4).

     ↑

168. Ibid s 9.

     ↑

169. Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) s 14A.

     ↑

170. Ibid s 18(3).

     ↑

171. Ibid ss 18(2), 24AA.

     ↑

172. Peter D Marshall, ‘A Comparative Analysis of the Right to Appeal’ (2011) 22 Duke Journal of Comparative & International Law 1.

     ↑

173. Ibid 3–4.

     ↑

174. Kerri Eagle and Jonathon Adams, ‘Appealing a Mental Illness Verdict in New South Wales’ (2013) Psychiatry, Psychology and the Law 1, 10.

     ↑

175. Ibid 11; The Queen v NCT [2009] VSCA 240 (23 October 2009) [6],[7].

     ↑

176. Eagle and Adams, above n 174, 1.

     ↑

177. Ibid 9.

     ↑