Unfitness to stand trial

7.9 At common law, a person who is considered ‘unfit’ to stand trial cannot be tried. The justification for this rule has been stated in various ways, including as being to:

• avoid inaccurate verdicts—forcing the defendant to be answerable for his or her actions when he or she is incapable of doing so could lead to an inaccurate verdict;

• maintain the ‘moral dignity’ of the trial process—requiring that a defendant is fit to stand trial recognises the importance of maintaining the moral dignity of the trial process, ensuring that the defendant is able to form a link between the alleged crime and the trial or punishment and be accountable for his or her actions; and

• avoid unfairness—it would be unfair or inhumane to subject someone to the trial process who is unfit.^[6]

7.10 In addition to avoiding incorrect verdicts, the UK Law Commission expressed the rationale for the unfitness to stand trial rules as being that it would be ‘an abuse of the process of the law to subject someone to a trial when he or she is unable to play any real part in that trial’.^[7]

7.11 At common law, there is a ‘presumption’ of fitness to stand trial. That is, if the defence raises the issue, the onus is on the defence to prove, on the balance of probabilities, that the defendant is unfit to stand trial.^[8] If the issue is raised by the prosecution, and contested, then the issue must be proved beyond reasonable doubt.^[9] In addition, some Australian jurisdictions have enacted express statutory presumptions of fitness.^[10]

The test of unfitness

7.12 The presumption of fitness means that it is more correct to refer to a test of ‘unfitness’ to stand trial.^[11] The test may arise as an issue before or during the trial. When the defendant is present for trial, it may appear that he or she is unfit to plead. Alternatively, he or she may enter a plea and thereafter, it may appear that he or she is unfit to be tried. All Australian jurisdictions have enacted legislation dealing with fitness to stand trial.^[12]

7.13 At common law, the test of unfitness to stand trial is, simply stated, whether an accused has sufficient mental or intellectual capacity to understand the proceedings and to make an adequate defence.^[13] The Victorian Supreme Court in R v Presser set out six factors relevant to the test:

• an understanding of the nature of the charges;

• an understanding of the nature of the court proceedings;

• the ability to challenge jurors;

• the ability to understand the evidence;

• the ability to decide what defence to offer; and

• the ability to explain his or her version of the facts to counsel and the court.^[14]

7.14 The common law test of unfitness to stand trial has been criticised in a number of recent inquiries in Australia and overseas. In particular, the common law may place an undue emphasis on a person’s intellectual ability to understand specific aspects of the legal proceedings and trial process,^[15] and too little emphasis on a person’s decision-making ability. The rules on unfitness to stand trial are characterised as ‘protective’^[16]—ensuring that a person cannot be tried for a crime unless capable of defending themselves.

7.15 However, in practice, the rules can lead to adverse outcomes for the individuals concerned, who may be subject to detention, for an uncertain period, in prison or in secure hospital facilities—although most jurisdictions have legislated to divert such people away from the criminal justice system.^[17] The risk is that incentives exist for innocent people to plead (or be advised to plead) guilty, in order to avoid the consequences of unfitness.

7.16 The Anti-Discrimination Commissioner (Tasmania) observed that as a result of being determined unfit to stand trial, a person may ‘end up in a secure mental health facility for periods well in excess of those expected if their case had progressed through the courts’. They ‘will often find themselves in a situation where they are not able to exercise legal capacity, even when the circumstances surrounding the making of the order have changed’.^[18]

Once a person is issued with a forensic order that follows a finding of being unfit to plead it is extremely difficult to be discharged from the order. This is due in part to a medical approach to disability and a view that if you have an illness for life, you will have an order for life.^[19]

7.17 In some cases, the defendant’s interests may not be served in being found unfit to stand trial if the outcome is that he or she is put on a supervision order, particularly for less serious offences. Such defendants may later be unable to have their supervision orders revoked because they continue to breach the conditions of the order or commit offences. Further, they remain at risk of the order being varied from non-custodial to custodial if they continue to pose a danger to the community.^[20]

A person who is able to understand the process involved in a plea of guilty will often be better off being dealt with by a criminal sanction, rather than being placed on an indefinite supervision order.^[21]

7.18 The key criticisms raised in recent inquiries into this issue have included that:

• the test, by focusing on intellectual ability, generally sets too high a threshold for unfitness and is inconsistent with the modern trial process;^[22]

• the test is difficult to apply to defendants with mental illness because the criteria were not designed for them;^[23]

• a defendant may not be unfit to stand trial even where the court takes the view that he or she is not incapable of making decisions in his or her own interests.^[24]

7.19 Stakeholders raised concerns about the test of unfitness to stand trial. Brain Injury Australia observed that, in practice, the threshold for standing trial is low and ‘practitioners regularly take instructions from clients with mild mental illness or intellectual disabilities’. On the other hand, people with an acquired brain injury may fail to meet the test:

This could be due to some typical effects of [acquired brain injury], including: difficulty processing information; inability to understand abstract concepts; impaired decision-making ability; memory loss or impairment (which may impede not only the defendant’s ability to recall the events the subject of the charge, but also their ability to follow the trial); deficits in spoken or received language; problems learning new information; and dependence (the failure to assume responsibility for one’s actions).^[25]

7.20 The Victorian Law Reform Commission (VLRC) is conducting a review of the Crimes (Mental Impairment and Unfitness to Be Tried) Act 1997 (Vic) (CMI Act).^[26] This review includes consideration of the Presser test, which is incorporated in the CMI Act.^[27] In relation to the criticisms highlighted above, the VLRC observed:

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.^[28]

7.21 In its Consultation Paper, the VLRC asked, among other things, whether the test for unfitness to stand trial should include a consideration of a defendant’s decision-making capacity, effective participation in the trial, or capacity to be rational.^[29]

7.22 Similar questions were examined by the Law Commission of England and Wales (Law Commission) in its 2010 Consultation Paper, Unfitness to Plead.^[30] The Law Commission made provisional proposals for reform of the test of unfitness. These proposals would replace the current test with a new legal test which assesses whether the defendant ‘has decision-making capacity for trial’ and takes into account ‘all the requirements for meaningful participation in the criminal proceedings’:^[31]

The legal test should be a revised single test which assesses the decision-making capacity of the accused by reference to the entire spectrum of trial decisions he or she might be required to make. Under this test an accused would be found to have or to lack decision-making capacity for the criminal proceedings.^[32]

7.23 In determining the defendant’s decision-making capacity, the court would be required to take account of the ‘complexity of the particular proceedings and gravity of the outcome’ and, in particular, how important any disability is likely to be in the context of the decisions the defendant must make in the proceedings.^[33]

7.24 The Law Commission proposed that a defendant should be found unfit to stand trial if he or she is unable:

(1) to understand the information relevant to the decisions that he or she will have to make in the course of his or her trial,

(2) to retain that information,

(3) to use or weigh that information as part of decision making process, or

(4) to communicate his or her decisions.^[34]

7.25 The formulation of this test was based on provisions of the Mental Capacity Act 2005 (UK), which defines capacity for the purposes of decisions about a person’s personal welfare, property and financial affairs and the appointment of substitute decision-makers.^[35]

7.26 The Law Commission anticipated that if a person meets its proposed test, the person would also satisfy the requirements of the existing test,^[36] because the common law criteria set a higher threshold for unfitness to stand trial than a test based on decision-making ability.^[37]

7.27 In contrast, the New South Wales Law Reform Commission (NSWLRC) has recommended that the common law criteria for unfitness to stand trial, represented by the Presser standards, should not be fundamentally changed. In response to stakeholder concerns, the NSWLRC recommended that the standards simply be updated and incorporated into statute,^[38] as in most Australian jurisdictions.^[39]

7.28 However, as part of this reform, the NSWLRC recommended that the test for unfitness to stand trial should expressly refer to a person’s ability to use information as part of a ‘rational’ decision-making process.^[40]

7.29 While the criminal justice system rightly places weight on ‘the right of defendants to make their own decisions (even if those decisions might appear misguided to an impartial observer)’, the NSWLRC said that defendants cannot be said to be effectively participating in a trial if they are unable to make rational decisions, for example ‘because they cannot distinguish between delusion and reality’.^[41]

7.30 The NSWLRC also recommended that the test for unfitness to stand trial should include reference to the ‘overarching principle’ that the defendant must be able to have a fair trial. This was said to be the ‘touchstone’ for assessing whether or not the defendant’s degree of incapacity is sufficient to do those things required by the test.^[42]

7.31 This approach could be a significant step away from the common law because the defendant would not necessarily be required to be meet all the criteria in the test:

If the defendant was unable, for example, to give evidence effectively, he or she might still be fit for trial if it is possible for a fair trial to be held. Conversely, the list of considerations need not be comprehensive. If the court considers that the defendant lacks an essential capacity that is not listed in the statutory considerations, and cannot be afforded a fair trial, then the defendant can be found unfit.^[43]

Assistance and support

7.32 Existing tests of unfitness to stand trial do not consider the possible role of assistance and support for defendants. Law reform bodies have, however, considered the role of such assistance and support, and the possible implications for assessments of whether a person is unfit to stand trial.

7.33 The Law Commission proposed that decision-making capacity should be assessed with a view to ascertaining whether a defendant could stand trial ‘with the assistance of special measures and where any other reasonable adjustments have been made’.^[44] It explained:

The inclusion of the consideration of special measures as part of the test will serve to further the development of special measures on a case by case basis and ensure that the courts adapt to the needs of a particular defendant.^[45]

7.34 The Law Commission observed that, if the possibility of having ‘special measures’ to assist the defendant, were to be a factor in a reformed test of unfitness, this would ‘presumably increase the prospects of some defendants who would currently be found unfit to plead being able to stand trial’.^[46]

7.35 The NSWLRC made a similar recommendation about modifications to trial processes. It recommended that, in determining whether a person is unfit for trial, the matters that a court must consider should include:

(a) whether modifications to the trial process can be made or assistance provided to facilitate the person’s understanding and effective participation

(b) the likely length and complexity of the trial, and

(c) whether the person is legally represented.^[47]

Reform of the test

7.36 The common law test of unfitness to stand trial is based primarily on a person’s intellectual ability to understand specific aspects of the legal proceedings. The Law Commission described the existing criteria as placing ‘emphasis on an ability to understand rather than the ability to function or to do something (in other words, mental capacity)’. At common law, fitness to stand trial is

a global concept which can be said to cover a general state, and is not context-specific or time-specific. It has tended to be construed as being about the accused’s cognitive ability which is, to all intents and purposes, seen in the abstract.^[48]

7.37 This comes close to requiring that a person must be considered as lacking decision-making ability on the basis of having an (intellectual) disability—and, on that basis, is inconsistent with the approach taken by the CRPD and the National Decision-Making Principles.

7.38 Rather, in the ALRC’s view, any test for unfitness to stand trial should be based on a person’s decision-making ability in the context of the particular criminal proceedings which he or she faces.

7.39 The proposal above would introduce a new test of unfitness to stand trial into the Crimes Act 1914 (Cth), based on the guidelines for determining decision-making ability proposed by the ALRC in Chapter 3.

7.40 Interestingly, similar conclusions about the primary importance of decision-making ability have been reached by other law reform bodies that have considered the issues—even though these bodies were not expressly informed by the approach reflected in art 12 of the CRPD. The focus of these inquiries was more on the need to ensure fair trials^[49] and the effective participation of defendants.^[50]

7.41 The way in which the new test might operate in practice for people with disability was explained by the VLRC:^[51]

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.

• 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.

• 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.

• 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]

7.42 The ALRC recognises the proposed new test of unfitness to stand trial raises many issues that may need to be resolved before implementation. For example, the VLRC has observed that such a formulation may operate too widely because it has the potential to include defendants 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’.^[53]

7.43 For this reason, some commentators have suggested that the test should include some threshold requirement that, for example, impaired decision-making ability is due to ‘mental or physical illness, whether temporary or permanent’^[54] or some clinically recognised condition.^[55]

7.44 The second proposal also reflects an element of the National Decision-Making Principles—that decision-making ability must be assessed in the context of available supports.

7.45 At present, the test for unfitness does not allow for this. The fact that a person may be able to be supported in understanding trial processes, and making decisions about, and participating in, the proceedings cannot affect their fitness to stand trial. From one perspective:

the introduction of support measures to potentially increase the level of fitness of an accused person is desirable… the provision of support and education about court processes to an accused person who falls ‘just short’ of meeting the test for fitness is a humane option that may ultimately enable them to participate fully in their trial.^[56]

7.46 On the other hand, in practice, there may be limited options for supporting a defendant who needs decision-making support through a criminal trial. Providing that available support should be taken into account in determining unfitness to stand trial may work against equality before the law—in that a person with support may be able to stand trial but another, with similar ability but without support, may not be tried.^[57]

Modelling in Commonwealth law

7.47 The ALRC proposes that the reformed test of unfitness to stand trial be modelled in Commonwealth law through amendments to the existing legislative provisions in the Crimes Act, which set out the processes for finding federal offenders unfit to be tried, and the consequences of such a finding.^[58]

7.48 The ALRC recognises that, in practice, such a provision would have limited application. First, most criminal prosecutions occurring in Australia fall within the responsibilities of the states and territories. Secondly, most federal offenders are tried in state and territory courts.^[59]

7.49 The Judiciary Act 1903 (Cth) invests state courts with federal jurisdiction in both civil and criminal matters, subject to certain limitations and exceptions.^[60] The Act makes specific provision for the exercise of federal criminal jurisdiction by both state and territory courts.^[61] Importantly, under the Act, state and territory laws, including those relating to ‘procedure, evidence and the competency of witnesses’ are applied to federal prosecutions in state and territory courts.^[62]

7.50 Essentially this means that, even if the Crimes Act were amended to introduce a new test of unfitness to stand trial, if the matter is being heard in a state or territory court, the issue of unfitness would still be determined in accordance with the procedures applicable under state or territory law.^[63]

7.51 The ALRC nevertheless considers that modelling a new approach to unfitness to stand trial in Commonwealth law will provide an opportunity to guide law reform at state and territory level, to reflect a new approach to determining decision-making ability in criminal justice settings.

Limits on detention

7.52 A wide range of concerns have been raised about the processes and outcomes of unfitness determinations. These include concerns about the availability or otherwise of appropriate accommodation, support services, and diversion from the criminal justice system. For example, Queensland Advocacy Incorporated expressed a range of concerns about the scheme for diverting offenders to the Mental Health Court under the Mental Health Act 2000 (Qld).^[64] Many of these issues do not directly concern decision-making or are too particular to a state or territory jurisdiction to be a focus of this Inquiry.^[65]

7.53 Some outcomes of unfitness to stand trial rules have generated significant public concern, including, for example, in the cases of Marlon Noble and Rosie Anne Fulton.^[66] These concerns have led the AHRC to call for a national audit of people held in prison after being found unfit to stand trial.^[67]

7.54 The Safeguards Guidelines proposed by the ALRC state that decisions, arrangements and interventions in relation to people who need decision-making support should be least restrictive of the person’s human rights; subject to mechanisms of appeal; and subject to monitoring and review. Some aspects of the limits on detention, and review of detention orders in relation to persons found unfit to stand trial are discussed below.

7.55 The consequences of a determination that a federal offender is unfit are set out in the Crimes Act.^[68] These provisions apply to federal offenders being dealt with by state or territory courts—despite the operation of the Judiciary Act discussed above. In relation to proceedings for federal offences, the provisions of state or territory law give way to provisions of the Crimes Act to the extent of any inconsistency.^[69] While state or territory law regulates the mode of determination of unfitness to stand trial, the consequences flowing from the determination will be regulated by Commonwealth law.^[70]

7.56 Under the Crimes Act, where the issue of unfitness is raised on commitment for trial, the proceedings must be referred to the court to which the proceedings would have been referred had the defendant been committed for trial. If that court finds the defendant unfit to be tried, it must determine whether a prima facie case exists. Where no prima facie case exists, the person must be discharged.^[71]

7.57 If a prima face case exists, the court must dismiss the charge if satisfied that it is inappropriate to inflict any punishment, or any punishment other than nominal punishment, having regard to the defendant’s ‘character, antecedents, age, health or mental condition’, the triviality of the offence and the extent of any mitigating circumstances.^[72] Otherwise, the court must determine, after considering medical reports whether, on the balance of probabilities, the person will become fit to be tried within 12 months.^[73]

7.58 The court may order a person who is likely to become fit to be tried within 12 months to be detained in a hospital, otherwise the proceedings must resume as soon as practicable. If the court finds that the defendant is not likely to become fit, it must determine whether the defendant is ‘suffering from a mental illness, or a mental condition, for which treatment is available in a hospital’ and, if so, whether he or she objects to being detained in hospital.^[74]

7.59 The court must order detention in hospital if the person is found to be mentally ill and does not object to being detained in hospital, or in prison or some other place. However, this period of detention must not exceed the maximum period of imprisonment that could have been imposed if the person had been convicted of the offence charged.^[75] Further, before that time, the court may order the person’s release from custody, either unconditionally or subject to conditions lasting not more than three years, if in the court’s opinion this is more appropriate than continuing detention.^[76]

7.60 Under the Crimes Act, where a person is found unfit to stand trial, the Attorney-General of Australia must, at least once every six months, consider whether or not the person should be released from detention based on medical or other reports.^[77] The Attorney-General must not order release unless satisfied that the person is not a threat or danger either to himself or herself or to the community.^[78]

7.61 These provisions of the Crimes Act were inserted in 1989.^[79] While the ALRC has no detailed information about how the provisions operate in practice, or the outcomes they produce for federal offenders who are found unfit to stand trial, the Crimes Act appears to provide safeguards that do not exist in all state and territory jurisdictions.

7.62 Some jurisdictions do not provide statutory limits on the period of detention for those found unfit to stand trial. For example:

• in Western Australia, the Criminal Law (Mentally Impaired Defendants) Act 1996 (WA), does not place limits on the period of custody orders for persons detained after being found not mentally fit to stand trial;^[80]

• in the Northern Territory, the Criminal Code (NT) provides that supervision orders for persons found not fit to stand trial are ‘for an indefinite term’;^[81] and

• in Victoria, custodial supervision orders are for an indefinite period,^[82] although the Crimes (Mental Impairment and Unfitness to Tried) Act 1997 (Vic) also requires the court to set a ‘nominal term’ for the purposes of review.^[83]

7.63 The Anti-Discrimination Commissioner (Tasmania) provided data from Tasmania’s Forensic Tribunal, which illustrates that, for forensic patients placed on a mental health order for offences other than murder, the period of detention under an order is substantially more than it would have been if they had been found guilty of the offence.^[84]

7.64 All jurisdictions have review mechanisms for people held in detention because they are unfit to stand trial, to determine whether a person should be released. Reviews are conducted by different bodies, including courts, mental health and other tribunals and, in the case of the Commonwealth, the Attorney-General.

7.65 However, some jurisdictions may have inadequate review mechanisms for those detained. For example, in Western Australia, the Criminal Law (Mentally Impaired Defendants) Act 1996 (WA), does not provide for review. Rather, the person is essentially detained at the ‘Governor’s pleasure’.^[85]

7.66 In the ALRC’s view, state and territory legislation governing the consequences of a determination that a person is unfit to stand trial should provide for limits on the period of detention. This would at least ensure that a person is no longer a forensic prisoner after some reasonable maximum period. If he or she is a threat or danger to themselves or the public at that time, they should be the responsibility of mental health authorities, not the criminal justice system.^[86]

7.67 Regular periodic review of detention orders is also essential. For example, in Victoria, the Crimes (Mental Impairment and Unfitness to Tried) Act 1997 (Vic) provides judges with the flexibility to decide how often to review, or further review, custodial supervision orders. The VLRC has recommended that legislation should require regular, automatic review of each custodial supervision order at an interval of no longer than every two years.^[87]