How to determine fitness: should a judge rather than a jury determine fitness to stand trial?

In order to understand the questions that arise in this matter, it is necessary to say something as to the content of the expression “fitness to plead” and, also, as to its significance in the trial process. In general terms, a person is fit to plead if he or she “has sufficient understanding to comprehend the nature of [the] trial, so as to make a proper defence to the charge.” The accused “need not have the mental capacity to make an able defence” but, nonetheless, there are certain matters which he or she must comprehend.

In R v Presser, Smith J, in a passage referred to with approval by this Court in R v Ngatayi, explained that, to be fit to plead, a person must be able: “to understand what it is that he is charged with. He needs to be able to plead to the charge and to exercise his right of challenge. He needs to understand generally the nature of the proceeding, namely, that it is an inquiry as to whether he did what he is charged with. He needs to be able to follow the course of the proceedings so as to understand what is going on in court in a general sense, though he need not, of course, understand the purpose of all the various court formalities. He needs to be able to understand … the substantial effect of any evidence that may be given against him; and he needs to be able to make his defence or answer to the charge. Where he has counsel he needs to be able to do this through his counsel by giving any necessary instructions and by letting his counsel know what his version of the facts is and, if necessary, telling the court what it is … [H]e must … have sufficient capacity to be able to decide what defence he will rely upon and to make his defence and his version of the facts known to the court and to his counsel, if any.”

A number of matters should be noted with respect to what was said in Presser. The first is that the question whether a person is fit to plead may arise for reasons other than mental illness. It may arise, for example, because a person is deaf and dumb or, more generally, because language difficulties make it impossible for him or her to make a defence. The second matter to be noted is that fitness to plead is a concept that derives from the common law. Usually, however, there are statutory provisions which bear on the determination of that issue.

His Honour Gleeson CJ, after setting out the statutory test (modeled upon the Presser test) also adopted the following test indicating that this was consistent with the statutory requirements:

The Ontario Court of Appeal, in R v Taylor, recorded the following propositions, agreed by counsel, as representing the state of authority in that province:

“(a) The fact that an accused person suffers from a delusion does not, of itself, render him or her unfit to stand trial, even if that delusion relates to the subject-matter of the trial.

(b) The fact that a person suffers from a mental disorder which may cause him or her to conduct a defence in a manner which the court considers to be contrary to his or her best interests does not, of itself, lead to the conclusion that the person is unfit to stand trial.

(c) The fact that an accused person’s mental disorder may produce behaviour which will disrupt the orderly flow of a trial does not render that person unfit to stand trial.

(d) The fact that a person’s mental disorder prevents him or her from having an amicable, trusting relationship with counsel does not mean that the person is unfit to stand trial.”

Hence, the severity of a person’s mental illness is certainly a relevant factor however, it would appear the main issue of concern for the court, is the person’s level of understanding.

Under the Act some of requirements are, as far as practicable a person’s unfitness to stand trial should be raised before arraignment however, it can be raised at any time (s7 of the Act). However, once raised the court needs to consider whether to hold an inquiry into the person’s fitness to stand trial. There is no onus on either party (s12(3) of the Act) and the proceedings are not to be adversarial in nature (s12(2) of the Act). The question of a person’s unfitness to be tried for an offence is to be determined on the balance of probabilities (s6 of the Act).

If the person is found fit, then the criminal proceedings are to recommence or continue as usual (s13 of the Act). However, should the person be found unfit to stand trial the court must refer the person to the Mental Health Review Tribunal (MHRT) whose function is to then assess on the balance of probabilities as whether the person will become fit for trial within the next 12 months (s16 of the Act). Should the MHRT find that the person will not be fit within the next 12 months to stand trial the court and DPP is to be notified; and a special hearing conducted (s19 of the Act). The purpose of the special hearing being to determine (despite the persons unfitness) whether the person should be acquitted or on the limited evidence available, that the person is found to have committed the charge or any alternative offence charged.

A special hearing is to be conducted as nearly as possible as a normal trial (s21(1) of the Act) and is held (unless an election is made) by a judge alone (s21A of the Act). The possible verdicts that can be returned are as set out in s22 of the Act below.

Following a special hearing where the person is found to have committed the offence charged the court is to consider imposing a limiting term – see s23 of the Act below. However, in a normal trial, where a person is found not guilty by reason of mental illness before a jury, then the person is to be dealt with as per s39 of the Act below.

MENTAL HEALTH (FORENSIC PROVISIONS) ACT 1990 – SECT 22

22 Verdicts at special hearing

(1) The verdicts available to the jury or the Court at a special hearing include the following:

(a) not guilty of the offence charged,

(b) not guilty on the ground of mental illness,

(d) that on the limited evidence available, the accused person committed an offence available as an alternative to the offence charged.

(2) A verdict in accordance with subsection (1) (b) is to be taken to be equivalent for all purposes to a special verdict that an accused person is not guilty by reason of mental illness under section 38.

(3) A verdict in accordance with subsection (1) (c) or (d):

(a) constitutes a qualified finding of guilt and does not constitute a basis in law for any conviction for the offence to which the finding relates, and

(b) subject to section 28, constitutes a bar to further prosecution in respect of the same circumstances, and

(d) is to be taken to be a conviction for the purpose of enabling a victim of the offence in respect of which the verdict is given to make a claim for compensation.

MENTAL HEALTH (FORENSIC PROVISIONS) ACT 1990 – SECT 23

23 Procedure after completion of special hearing

(1) If, following a special hearing, it is found on the limited evidence available that an accused person committed the offence charged or some other offence available as an alternative, the Court:

(a) must indicate whether, if the special hearing had been a normal trial of criminal proceedings against a person who was fit to be tried for the offence which the person is found to have committed, it would have imposed a sentence of imprisonment, and

(b) where the Court would have imposed such a sentence, must nominate a term in respect of that offence, being the best estimate of the sentence the Court would have considered appropriate if thespecial hearing had been a normal trial of criminal proceedings against a person who was fit to be tried for that offence and the person had been found guilty of that offence.

(2) If a Court indicates that it would not have imposed a sentence of imprisonment in respect of a person, the Court may impose any other penalty or make any other order it might have made on conviction of the person for the relevant offence in a normal trial of criminal proceedings.

(3) Any such other penalty imposed or order made, under subsection (2), is to be subject to appeal in the same manner as a penalty or order in a normal trial of criminal proceedings.

(4) In nominating a limiting term in respect of a person or imposing any other penalty or making any other order, the Court may, if it thinks fit, take into account the periods, if any, of the person’s custody or detention before, during and after the special hearing (being periods related to the offence).

(5) A limiting term nominated in respect of a person takes effect from the time when it is nominated unless the Court:

(a) after taking into account the periods, if any, of the person’s custody or detention before, during and after the special hearing (being periods related to the offence), directs that the term be taken to have commenced at an earlier time, or

(b) directs that the term commence at a later time so as to be served consecutively with (or partly concurrently and partly consecutively with) some other limiting term nominated in respect of the person or a sentence of imprisonment imposed on the person.

(6) When making a direction under subsection (5) (b), the Court is to take into account that:

(a) a sentence of imprisonment imposed in a normal trial of criminal proceedings may be subject to a non-parole period whereas a limiting term is not, and

(b) in a normal trial of criminal proceedings, consecutive sentences of imprisonment are to be imposed with regard to non-parole periods (as referred to in section 47 (4) and (5) of the Crimes (Sentencing Procedure) Act 1999 ).

(7) If the Court indicates that it would not have imposed a sentence of imprisonment in respect of aforensic patient, it must notify the Tribunal that a limiting term is not to be nominated in respect of the person.

MENTAL HEALTH (FORENSIC PROVISIONS) ACT 1990 – SECT 39

39 Effect of finding and declaration of mental illness

(1) If, on the trial of a person charged with an offence, the jury returns a special verdict that the accused person is not guilty by reason of mental illness, the Court may order that the person be detained in such place and in such manner as the Court thinks fit until released by due process of law or may make such other order (including an order releasing the person from custody, either unconditionally or subject to conditions) as the Court considers appropriate.

(2) The Court is not to make an order under this section for the release of a person from custody unless it is satisfied, on the balance of probabilities, that the safety of the person or any member of the public will not be seriously endangered by the person’s release.

(3) As soon as practicable after the making of an order under this section, the Registrar of the Court is to notify the Minister for Health and the Tribunal of the terms of the order.