7.13 In the ALRC’s view, the current legal test for unfitness to stand trial needs to be reformed to avoid unfairness and maintain the integrity of criminal trials, while ensuring that people with disability are entitled to equal recognition before the law, and to participate fully in legal processes.
7.14 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 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.
7.15 Also, the Law Commission of England and Wales (Law Commission) has observed 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’.
7.16 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. If the issue is raised by the prosecution, and contested, then the issue must be proved beyond reasonable doubt. In addition, some Australian jurisdictions have enacted express statutory presumptions of fitness.
The test of unfitness
7.17 The presumption of fitness means that it is more correct to refer to a test of ‘unfitness’ to stand trial. 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.
7.18 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. 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.
7.19 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, and too little emphasis on a person’s decision-making ability. The rules on unfitness to stand trial are characterised as ‘protective’—ensuring that a person cannot be tried for a crime unless capable of defending themselves.
7.20 However, in practice, the rules can lead to adverse outcomes for individuals found unfit to stand trial, who may be subject to detention, for an uncertain period, in prison or in secure hospital facilities. 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.
7.21 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’.
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.
7.22 In some cases, the defendant’s interests may not be served in being found unfit to stand trial if the outcome is that they are 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.
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.
7.23 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;
- the test is difficult to apply to defendants with mental illness because the criteria were not designed for them;
- 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.
7.24 The Victorian Law Reform Commission (VLRC) has conducted a review of the Crimes (Mental Impairment and Unfitness to Be Tried) Act 1997 (Vic) (CMI Act). This review included consideration of the Presser test, which is incorporated in the CMI Act.
7.25 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.
7.26 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.
7.27 Similar questions are being examined by the Law Commission. In its 2010 Consultation Paper, 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’:
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.
7.28 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.
7.29 The Law Commission proposed a new test, under which a defendant would 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.
7.30 In its 2014 Issues Paper, the Law Commission stated that there appeared to be ‘considerable support from legal and clinical practitioners for a legal test which incorporates both effective participation and decision-making capacity’. It asked a number of further questions—which serve to illustrate the complexity of law reform in this area—including whether:
- a reformed legal test for fitness to plead should incorporate a consideration of both decision-making capacity and the capacity for effective participation;
- a ‘participation test … with an additional decision-making capacity limb’ would represent the most appropriate formulation for such a combined legal test;
- incorporating ‘an exhaustive list of decisions for which the defendant requires capacity’ would assist in maintaining the threshold for unfitness at a suitable level; and
- a ‘diagnostic threshold’ would be unlikely to assist in maintaining the threshold of unfitness at a suitable level.
7.31 In contrast, the NSW Law Reform Commission (NSWLRC) recommended, in 2013, that the common law criteria for unfitness to stand trial should not be fundamentally changed. In response to stakeholder concerns, it recommended that the standards simply be updated and incorporated into statute, as in most Australian jurisdictions.
7.32 However, 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. 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’.
7.33 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.
7.34 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.
Assistance and support
7.35 Existing tests of unfitness to stand trial do not consider the possible role of assistance and support for defendants.
7.36 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’. 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.
7.37 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’.
7.38 In its Issues Paper, the Law Commission stated that the ‘incorporation of special measures into the legal test received significant support from legal practitioners, clinicians and representative groups’.
7.39 In this context, issues concerning the availability and resourcing of support were highlighted. The Law Commission asked whether it would be ‘desirable and practicable for defendants to have a statutory entitlement to the support of a registered intermediary’ for the proceedings, where the court is of the view that such assistance is necessary to ensure that the defendant receives a fair trial.
7.40 The NSWLRC made a similar recommendation about the role of modifications to trial processes in assessing unfitness. 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.
Reform of the test
Recommendation 7–1 The Crimes Act 1914 (Cth) should be amended to provide that a person cannot stand trial if the person cannot be supported to:
(a) understand the information relevant to the decisions that they will have to make in the course of the proceedings;
(b) retain that information to the extent necessary to make decisions in the course of the proceedings;
(c) use or weigh that information as part of the process of making decisions; or
(d) communicate the decisions in some way.
7.41 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.
7.42 This comes close to requiring that a person must be considered as lacking capacity on the basis of having an (intellectual) disability—and is therefore inconsistent with the approach taken by the CRPD and the National Decision-Making Principles. Rather, any test for eligibility 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—that is, a functional approach.
7.43 It is not practicable to completely do away with functional tests of ability that have consequences for participation in some legal processes. Even where a person has clearly expressed a will and preference to be subject to a criminal trial, the integrity of the trial (and, arguably, the criminal law itself) would be prejudiced if the person does not have the ability to understand and participate in a meaningful way.
7.44 In the Discussion Paper, the ALRC proposed a test similar to that originally suggested by the Law Commission. The Law Commission’s formulation 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.
7.45 Interestingly, similar conclusions about the primary importance of decision-making ability in this context 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 and the effective participation of defendants.
7.46 The VLRC explained the way in which such a new test might operate in practice for people with disability:
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.
7.47 The general approach proposed by the ALRC received support from some stakeholders, subject to reservations. The Law Council of Australia (Law Council), for example, agreed with the ALRC’s proposed functional test, but considered that the term ‘rationally’ should be included to condition its elements. This was seen as necessary to cover the situation where, for example, a person is able to understand information and use it in a decision-making process, but the process itself is not rational. Arguably, some level of rationality is implicit in the ideas of understanding, using and weighing information. However, referring expressly to the concept of rationality may lead to a person’s decision-making ability being assessed on its likely outcome, which would be inconsistent with the National Decision-Making Principles.
7.48 The Queensland Law Society submitted that the ‘basic definition of capacity should remain, with any evidence of diagnosis and the impact on a person’s understanding, memory and reasoning process to be used as evidence’.
7.49 A formulation based on decision-making ability may operate too widely because it may have 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’.
7.50 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’, or some clinically recognised condition.
7.51 In the Discussion Paper, the ALRC asked what other elements should be included in any new test of eligibility to stand trial—including, whether there should be some threshold requirement that unfitness be due to some clinically-recognised mental impairment.
7.52 Dr Fleur Beaupert, Dr Piers Gooding and Linda Steele submitted that, if legal tests are based on decision-making ability (which they opposed) there should be no threshold requirement. Such an approach would ‘negatively impact on the realisation of legal capacity because it is not focused on the needs, wishes and views of the individual’. Rather, determinations of eligibility to stand trial
will inevitably hinge on assessments carried out by clinicians such as psychologists, psychiatrists and neuropsychologists—similar to existing approaches to assessing a person’s capacity and risk level for the purposes of mental health and guardianship laws.
7.53 An obvious problem with a threshold based on any concept of mental impairment is that some people who are clearly unsuitable to stand trial would not be captured by the test—for example, a person with a physical illness may not be able to follow the course of a trial, but would not necessarily have a definable mental impairment—although there are processes to postpone trials on compassionate grounds.
7.54 In the Discussion Paper, the ALRC proposed that the new test of eligibility to stand trial be implemented through rules of court. However, because rules of court generally reflect, and are consistent with, the common law, legislation seems necessary to implement this change.
The role of support
7.55 The National Association of Community Legal Centres and People with Disability Australia (NACLC and PWDA) submitted that the focus of the test should be on the adequacy of the supports available to the individual to enable them to express their will and preference and, as a result, participate in the legal process.
7.56 The wording of the ALRC’s recommendation concerning the test for eligibility to stand trial, as set out above, now explicitly incorporates the concept of support. It is desirable, as much as possible, to ‘shift the emphasis to an assessment of the supports that are available to a person, rather than an assessment of the person’—but does not remove a threshold functional requirement.
7.57 This aspect of the recommendation reflects the National Decision-Making Principles in that any assessment of decision-making ability should be considered in the context of available support.
7.58 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.
7.59 In practice, resources may be too limited to support a defendant who needs decision-making support through a criminal trial.
7.60 If the available support is taken into account in determining eligibility to stand trial, in some circumstances, this may be seen as working against equality before the law. That is, a person with support may be able to stand trial but another, with similar ability but without support, may not be tried. The OPA (SA and Vic), while supporting the ALRC’s proposal, anticipated that ‘inequities will arise in relation to the quality of support provided and potentially inconsistent application’ of determinations about decision-making ability. The Law Council also agreed with the proposal in principle, but expressed concerns that taking into account the ‘support available to a person who would otherwise be determined unfit to stand trial may water down the test for unfitness’ and the practical difficulties associated with avoiding undue influence.
7.61 Stakeholders also recognised that, while a new test based on decision-making ability would be fairer and more principled than the existing ‘status-based’ test, it may be even more difficult to apply in practice—for example, experts may need to advise on a defendant’s decision-making ability in the light of the nature and complexity of the particular decisions the defendant is likely to face.
7.62 The ALRC recognises that the new test of eligibility to stand trial raises many issues that may need to be resolved before implementation, including in relation to the process for determining eligibility.
7.63 As discussed below, if the matter is being heard in a state or territory court, the issue would be determined in accordance with the procedures applicable under state or territory law. The VLRC final report may provide leads for law reform in this area, as it considered how the process for determining unfitness to stand trial can be improved. The Law Commission of England and Wales is also continuing to examine what evidential requirements might form part of assessing unfitness to stand trial, including in relation to expert medical advice.
7.64 The recommended test would introduce into the Crimes Act 1914 (Cth) a new test of when a person is not able to stand trial. The test is consistent with the National Decision-Making Principles and associated Guidelines. There seems no need to retain the language of ‘fitness’ or ‘unfitness’, which could be considered pejorative in the current context. The question is simply whether or not a person can be required, or is entitled, to stand trial for a criminal offence.
7.65 Other provisions of the Crimes Act dealing with unfitness to stand trial should also be reviewed for consistency with the new test of eligibility to stand trial. For example, s 20BB sets out procedures for dealing with persons who have been found unfit to be tried, but likely to become fit within 12 months. These provisions will also need amendment to ensure that eligibility to stand trial can be re-assessed if forms of support become available that may enable the person to meet the test.
Modelling in Commonwealth law
7.66 The ALRC recommends 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.
7.67 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.
7.68 The Judiciary Act 1903 (Cth) invests state courts with federal jurisdiction in both civil and criminal matters, subject to certain limitations and exceptions. The Act makes specific provision for the exercise of federal criminal jurisdiction by both state and territory courts. 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.
7.69 Essentially this means that, even if the Crimes Act were amended to introduce a new test of eligibility 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.
7.70 The ALRC nevertheless considers that modelling a new approach to eligibility to stand trial in Commonwealth law will provide an opportunity to guide law reform at state and territory level and reflect a new approach to determining decision-making ability in criminal justice settings.
Limits on detention
Recommendation 7–2 State and territory laws governing the consequences of a determination that a person is ineligible to stand trial should provide for:
(a) limits on the period of detention that can be imposed; and
(b) regular periodic review of detention orders.
7.71 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.
7.72 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). Many of these issues do not directly concern decision-making or were too specific to a particular jurisdiction to be considered in this Inquiry.
7.73 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. These concerns have led the AHRC to call for a national audit of people held in prison after being found unfit to stand trial.
7.74 The Safeguards Guidelines recommended 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.
7.75 The consequences of a determination that a federal offender is unfit are set out in the Crimes Act. 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. 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.
7.76 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.
7.77 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. 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.
7.78 The court may order a person to be detained in a hospital if they are likely to become fit to be tried within 12 months. 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.
7.79 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. 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.
7.80 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. 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.
7.81 These provisions of the Crimes Act were inserted in 1989. 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.
7.82 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;
- 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’; and
- in Victoria, custodial supervision orders are for an indefinite period, although the CMI Act also requires the court to set a ‘nominal term’ for the purposes of review.
7.83 Data from Tasmania’s Forensic Tribunal is said to illustrate that, for forensic patients placed on a mental health order for offences other than murder, the period of detention under an order is substantially longer than it would have been if they had been found guilty of the offence.
7.84 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, by the Attorney-General.
7.85 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’.
7.86 Regular periodic review of detention orders is also essential. For example, in Victoria, the CMI Act 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.
7.87 Stakeholders said limits should be placed on the period of detention, within the criminal justice and corrective services systems, of people found unfit to stand trial. The Illawarra Forum stated that, ‘if a person is determined unfit to stand trial, they should not be incarcerated at all without due process’.
7.88 Most jurisdictions do provide ‘special hearings’ as a means for determining the criminal responsibility of a person who has been found unfit to stand trial. The Commonwealth Crimes Act provides that, where there has been a preliminary finding that a person is unfit to be tried, the court must determine whether there has been established a prima facie case that the person committed the offence concerned. Where the court determines that there is a prima facie case, the court must either dismiss the charge or finally determine the person’s fitness within 12 months.
7.89 People with Disabilities WA and the Centre for Human Rights Education expressed concern that ‘significant numbers of Aboriginal people with cognitive impairment are indefinitely incarcerated in prisons in some Australian states, including WA’. It was suggested that community based alternatives to detention should be considered as far as possible.
7.90 In the Discussion Paper, the ALRC proposed that state and territory laws governing the consequences of a determination that a person is unfit to stand trial should provide for limits on the period of detention and for regular periodic review of detention orders. The Law Council suggested that the period of detention should be stated as not exceeding ‘the period for which a court determines the individual would have been detained if convicted, bearing in mind all the circumstances which the court would have taken into account in sentencing the individual’.
7.91 The ALRC agrees that limits on the period of detention should be set by reference to the period of imprisonment likely to have been imposed, if the person had been convicted of the offence charged. If they are 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. The framework for detention and supervision orders should be flexible enough to ensure that people transition out of the criminal justice system, in a way consistent with principles of community protection and least restriction of rights.
Victorian Law Reform Commission, Review of the Crimes (Mental Impairment and Unfitness to Be Tried) Act 1997, Consultation Paper (2013) 52. See also Law Commission of England and Wales, Unfitness to Plead, Consultation Paper No 197 (2010) 3–5.
‘This goes further than merely requiring that a person understands the trial process; it is concerned with whether or not he or she can meaningfully engage in the trial’: Law Commission of England and Wales, Unfitness to Plead, Consultation Paper No 197 (2010) 4.
R v Podola  1 QB 325. QAI observed that the diversion scheme under ch 7, pt 2 of the Mental Health Act 2000 (Qld) ‘presumes incapacity’ in relation to people on existing Forensic Orders or Intensive Treatment Orders and ‘therefore (some would argue positively) discriminates against people with mental illness and intellectual disability’: Queensland Advocacy Incorporated, Submission 45.
R v Robertson (1968) 3 All ER 557.
Eg, Criminal Law Consolidation Act 1935 (SA) s 269I; Crimes (Mental Impairment and Unfitness to Be Tried) Act 1997 (Vic) s 7(1); Crimes Act 1900 (ACT) s 312. The Commonwealth has not enacted such a statutory presumption: Crimes Act 1914 (Cth) s 20B.
See, eg, Victorian Law Reform Commission, Review of the Crimes (Mental Impairment and Unfitness to Be Tried) Act 1997, Consultation Paper (2013) 53.
See, Thomson Reuters, The Laws of Australia [9.3.1960].
In R v Pritchard, the test was stated as being whether the defendant 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 [the jury] to whom he may object—and to comprehend the details of the evidence …’: R v Pritchard (1836) 173 ER 135, .
R v Presser  VR 45.
But is not comprehensive in this regard—eg, there is no reference in common law tests to the defendant’s ability to give their own evidence: Law Commission of England and Wales, Unfitness to Plead, Consultation Paper No 197 (2010) 29.
Thomson Reuters, The Laws of Australia [9.3.1950].
Although most jurisdictions have legislated to divert such people away from the criminal justice system: See Ibid [9.3.2010]–[9.3.2030].
Anti-Discrimination Commissioner (Tasmania), Submission 71.
Office of Public Prosecutions Victoria, Submission No 8 to Victorian Law Reform Commission, Review of the Crimes (Mental Impairment and Unfitness to Be Tried) Act 1990 (Vic), 2013.
Ibid. For such people, a higher threshold of unfitness to stand trial may therefore be advantageous.
Law Commission of England and Wales, Unfitness to Plead, Consultation Paper No 197 (2010) 27.
Rather, it was developed through experience with defendants who were deaf and mute and, by extension, defendants with an intellectual disability: Victorian Law Reform Commission, Review of the Crimes (Mental Impairment and Unfitness to Be Tried) Act 1997, Consultation Paper (2013) 59.
Law Commission of England and Wales, Unfitness to Plead, Consultation Paper No 197 (2010) 28.
Victorian Law Reform Commission, Review of the Crimes (Mental Impairment and Unfitness to Be Tried) Act 1997, Report 28 (2014).
Crimes (Mental Impairment and Unfitness to Be Tried) Act 1997 (Vic) s 6.
Victorian Law Reform Commission, Review of the Crimes (Mental Impairment and Unfitness to Be Tried) Act 1997, Consultation Paper (2013) 59.
Ibid Questions 1–7.
Law Commission of England and Wales, Unfitness to Plead, Consultation Paper No 197 (2010); Law Commission of England and Wales, Unfitness to Plead, Issues Paper (2014). A final report is expected in 2015.
Law Commission of England and Wales, Unfitness to Plead, Consultation Paper No 197 (2010) Provisional Proposal 1.
Ibid Proposal 3.
Ibid Proposal 4.
Ibid 54. The Law Commission anticipated that if a person meets its proposed test, the person would also satisfy the requirements of the existing test, based on the criteria in R v Pritchard (1836) 173 ER 135. This is because the common law criteria set a higher threshold for unfitness to stand trial than a test based on decision-making ability: Law Commission of England and Wales, Unfitness to Plead, Consultation Paper No 197 (2010) 62.
Law Commission of England and Wales, Unfitness to Plead, Issues Paper (2014) 11.
As represented by the R v Presser standards.
In the Mental Health (Forensic Provisions) Act 1990 (NSW).
New South Wales Law Reform Commission, People with Cognitive and Mental Health Impairments in the Criminal Justice System: Criminal Responsibility and Consequences, Report 138 (2013) xv–xvi.
In the UK, the Law Commission considered, but rejected, the idea that it should be required that any decision made by the defendant be rational: Law Commission of England and Wales, Unfitness to Plead, Consultation Paper No 197 (2010) Proposal 2.
New South Wales Law Reform Commission, People with Cognitive and Mental Health Impairments in the Criminal Justice System: Criminal Responsibility and Consequences, Report 138 (2013) 31.
Law Commission of England and Wales, Unfitness to Plead, Consultation Paper No 197 (2010) Provisional Proposal 5.
Law Commission of England and Wales, Unfitness to Plead, Issues Paper (2014) 25.
New South Wales Law Reform Commission, People with Cognitive and Mental Health Impairments in the Criminal Justice System: Criminal Responsibility and Consequences, Report 138 (2013) rec 2.2.
Law Commission of England and Wales, Unfitness to Plead, Consultation Paper No 197 (2010) 38.
Mental Capacity Act 2005 (UK) s 3.
See, eg, New South Wales Law Reform Commission, People with Cognitive and Mental Health Impairments in the Criminal Justice System: Criminal Responsibility and Consequences, Report 138 (2013) 25–26.
See, eg, Victorian Law Reform Commission, Review of the Crimes (Mental Impairment and Unfitness to Be Tried) Act 1997, Consultation Paper (2013) 59.
Referring to the similar criteria in the Law Commission’s provisional proposal: Law Commission of England and Wales, Unfitness to Plead, Consultation Paper No 197 (2010) 54.
Victorian Law Reform Commission, Review of the Crimes (Mental Impairment and Unfitness to Be Tried) Act 1997, Consultation Paper (2013) 60.
Law Council of Australia, Submission 142; NACLC and PWDA, Submission 134; KinCare Services, Submission 112; National Mental Health Consumer & Carer Forum, Submission 100; Offices of the Public Advocate (SA and Vic), Submission 95.
Qld Law Society, Submission 103.
Victorian Law Reform Commission, Review of the Crimes (Mental Impairment and Unfitness to Be Tried) Act 1997, Consultation Paper (2013) 61.
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, 201–202 cited in Victorian Law Reform Commission, Review of the Crimes (Mental Impairment and Unfitness to Be Tried) Act 1997, Consultation Paper (2013) 61.
Scottish Law Commission, Insanity and Diminished Responsibility, Discussion Paper No 122 (2003) 49.
Australian Law Reform Commission, Equality, Capacity and Disability in Commonwealth Laws, Discussion Paper No 81 (2014) Question 7–1.
F Beaupert, P Gooding and L Steele, Submission 123. However, clinicians might play a role in assessing a person’s support needs and providing support to people with disabilities provided the provision of support is not ‘narrowly focused around medical-therapeutic interventions’ and includes ‘measures that address social, economic, cultural and systemic barriers to the exercise of legal capacity’. Other stakeholders also expressed concern about any undue emphasis on clinical reports Vicdeaf, Submission 125. KinCare submitted that unfitness should ‘be determined through assessment of mental (cognitive) impairment’: eg KinCare Services, Submission 112.
NACLC and PWDA, Submission 134.
Victorian Institute of Forensic Mental Health, Submission No 19 to Victorian Law Reform Commission, Review of the Crimes (Mental Impairment and Unfitness to Be Tried) Act 1990 (Vic), 2013.
Of course, as discussed below, it may or may not be in the interests of the defendant to be found unfit to stand trial.
Law Council of Australia, Submission 142.
Kesavarajah v R (1994) 181 CLR 230.
Victorian Law Reform Commission, Review of the Crimes (Mental Impairment and Unfitness to Be Tried) Act 1997, Report 28 (2014).
Law Commission of England and Wales, Unfitness to Plead, Issues Paper (2014) 30–36.
Crimes Act 1914 (Cth) ss 20B–20BI.
The use of state courts is made possible by ss 71 and 77(iii) of the Australian Constitution. The judicial power of the Commonwealth is vested in the High Court, in such other federal courts as the Parliament of Australia creates, and in such other courts as it invests with federal jurisdiction: Australian Constitution s 71. Parliament may make laws investing state courts with federal jurisdiction: Ibid s 77(iii).
Judiciary Act 1903 (Cth) s 39(2).
Ibid s 68(2).
Ibid ss 68(1), 79.
Kesavarajah v R (1994) 181 CLR 230.
Queensland Advocacy Incorporated, Submission 45.
Eg, concerns that Queensland law makes no provision for unfitness to stand trial in relation to summary offences: Qld Law Society, Submission 53.
Marlon Noble was charged in 2001 with sexual assault offences that were never proven. A decade after he was charged, the allegations were clearly shown to have no substance. Marlon spent most of that decade in prison, because he was found unfit to stand trial because of his intellectual disability. Rosie Anne Fulton was held in Kalgoorlie prison for 21 months after being charged with crimes related to a motor vehicle and being found unfit to stand trial due to her cognitive impairment due to foetal alcohol syndrome. She was sent to Kalgoorlie prison because no other suitable accommodation was available for her: Australian Human Rights Commission, Send Rosie Anne Home <www.humanrights.gov.au>. After public outcry, the WA and NT governments reached an agreement that saw Fulton released into community care in Alice Springs.
Australian Human Rights Commission, Jailed without Conviction: Commissioners Call for Audit <www.humanrights.gov.au>.
Crimes Act 1914 (Cth) pt IB div 6.
Australian Constitution s 109.
R v Ogawa  2 Qd R 350, –. The Queensland Law Society suggested that consideration be given to the adoption of state procedures for dealing with defendants charged with indictable Commonwealth offences, so that consistency of process is achieved: Qld Law Society, Submission 53.
Crimes Act 1914 (Cth) s 20B(1).
Ibid s 20BA(2).
Ibid s 20BA(4)–(5).
Ibid s 20BB(2).
Ibid s 20BC(2).
Ibid s 20BC(5).
Ibid s 20BD.
Ibid s 20BE.
Crimes Legislation Amendment Act (No 2) 1989 (Cth).
Criminal Law (Mentally Impaired Accused) Act 1996 (WA) s 19.
Criminal Code Act 1983 (NT) sch 1, s 43ZC.
Crimes (Mental Impairment and Unfitness to Be Tried) Act 1997 (Vic) s 27.
Ibid s 28. The nominal terms are generally equivalent to the maximum term of imprisonment available for the offence.
Anti-Discrimination Commissioner (Tasmania), Submission 71.
Criminal Law (Mentally Impaired Accused) Act 1996 (WA) s 35.
Victorian Law Reform Commission, Guardianship, Final Report No 24 (2012) rec 431.
NACLC and PWDA, Submission 134; People with Disabilities WA and Centre for Human Rights Education, Submission 133; Illawarra Forum, Submission 124; Offices of the Public Advocate (SA and Vic), Submission 95.
Illawarra Forum, Submission 124.
Crimes (Mental Impairment and Unfitness to Be Tried) Act 1997 (Vic) s 15.
For a federal offence, on indictment.
Crimes Act 1914 (Cth) s 20B.
Ibid s 20BA.
PWDA/CHRE observed that the Declared Places (Mentally Impaired Accused) Bill 2013 (WA), which remains before the WA Parliament, provides for the establishment of ‘declared places’ other than prison where people found unfit to plead can be detained: People with Disabilities WA and Centre for Human Rights Education, Submission 133.
Ibid. As recommended in a 2014 report by the WA Office of the Inspector of Custodial Services: ‘Mentally Impaired Accused on “Custody Orders”: Not Guilty, but Incarcerated Indefinitely’ (Government of Western Australia, Office of the Inspector of Custodial Services, 2014).
Australian Law Reform Commission, Equality, Capacity and Disability in Commonwealth Laws, Discussion Paper No 81 (2014) Proposal 7–3.
Law Council of Australia, Submission 142.
In this context, the Crimes Act requires state or territory mental health authorities to be notified when a person is due to be released because the period of that person’s detention has ended: Crimes Act 1914 (Cth) s 20BH.