Fitness to stand trial regimes

10.60  High rates of cognitive impairment and mental illness have been observed in the Australian general prison population. For example, in NSW, people with a mental illness or cognitive impairment were found to be 3 to 9 times more likely to be in prison than the general population.[112] This over-representation is particularly pronounced for Aboriginal and Torres Strait Islander prisoners with research finding that Aboriginal and Torres Strait Islander people with mental illness and cognitive impairment are ‘significantly more likely to have experienced earlier and more frequent contact with the criminal justice system’.[113]

10.61  Where cognitive impairment or mental illness is acute, the issue of a person’s fitness to stand trial may be raised.[114] If found unfit to stand trial, in jurisdictions without fixed terms, a person may face a particularly stark access to justice issue—the prospect of indefinite detention or detention that far exceeds the maximum sentence for the offence.[115] As observed in the Indefinite Detention Inquiry:

justice diversion provisions [without limiting terms] have resulted in people with disability being detained indefinitely in prisons or psychiatric facilities without being convicted of a crime, and for periods that may significantly exceed the maximum period of custodial sentence for the offence.[116]

10.62  Indefinite detention regimes disproportionately affect Aboriginal and Torres Strait Islander peoples. A 2012 study found, for instance, that all nine individuals who were indefinitely detained in WA, following a finding of unfitness to stand trial, were Aboriginal.[117] Evidence submitted to the Indefinite Detention Inquiry indicated that of the 100 people detained across Australia without conviction under forensic mental health provisions, at least 50 were Aboriginal and Torres Strait Islander peoples.[118]

10.63  The Australian Human Rights Commission (AHRC) reviewed the status of three Aboriginal men found unfit to be tried and held under indefinite detention in the NT,[119] and found that:

  • the men had been held in a maximum security prison in Alice Springs because no suitable places for forensic patients existed;[120]
  • one of the men had been in detention for six years, despite the maximum penalty of the crime he was accused of committing being 12 months imprisonment under regular criminal processes;
  • another of the men had been in detention for over four years, despite a maximum criminal penalty of 12 months imprisonment; and
  • the third man had also been in detention for over four years, and remained so at the time of the AHRC’s reporting date.[121]

Special hearings

Recommendation 10–4            Where not already in place, state and territory governments should introduce special hearing processes to make qualified determinations regarding guilt after a person is found unfit to stand trial.

10.64  The question of fitness to stand trial is determined by reference to whether the accused person is ‘of sufficient intellect to comprehend the course of proceedings in the trial so as to make a proper defence, to know that he may challenge any of you to whom he may object and to comprehend the details of the evidence’.[122] Circumstances that may give rise to a finding of unfitness to plead include an inability to understand the charge, the proceedings, the substantial effect of evidence led against the accused, or an inability to instruct counsel.[123]

10.65  In all jurisdictions except WA and Queensland, if a person is found unfit to stand trial, a qualified determination relating to guilt is made following a ‘special hearing’, during which the prosecution case is tested. Other than under Commonwealth law, such proceedings must be conducted in a manner as near as possible to a criminal trial,[124] where the criminal standard of proof must be met—beyond reasonable doubt. In most jurisdictions, if a person is found unfit to stand trial, a qualified determination is made about whether that person committed the offence.[125]

10.66  Stakeholders submitted that a requirement to conduct a special hearing is necessary in order to test the evidence against the defendant.[126] NATSILS, in particular, submitted that such a process should adopt the Victorian model where proceedings are conducted in a manner as close to a criminal trial as possible. The model requires that where findings are made that an accused ‘committed the offence charged’, such finding must be proven to the criminal standard of proof, [127] and be subject to appeal.[128]

10.67  In Queensland, the Mental Health Court—constituted by judges of the Supreme Court of Queensland and advised by two psychiatrists—is required to determine whether a person charged with a serious offence is unfit for trial.[129] Where the Court finds that the defendant is permanently unfit to stand trial, proceedings must be discontinued.[130] The Mental Health Court is then required to make a custodial or non-custodial order relating to that person. Where the court considers it necessary to do so ‘because of the person’s mental condition, to protect the safety of the community, including from the risk of serious harm to other persons or property’, the court will make a custodial order regardless of whether the person was guilty of the offence charged.[131] Such a test is broader than the criteria that applies when making a treatment order under the Mental Health Act 2016 (Qld)—where a person may be detained for treatment only if they pose a risk of imminent serious harm to themselves or others.[132]

10.68  In WA, a judge must be satisfied, by reference to a number of factors including the strength of the available evidence, that it would be appropriate to make a custodial order.[133] A judge is not required to follow any particular process to satisfy him or herself of the appropriateness of the order. For instance, in Western Australia v Tax, Martin CJ released the defendant unconditionally where the court gave weight to representations by counsel, including in relation to alibi evidence in favour of the defendant and concessions by the State relating to the identification of the defendant.[134] In another case, McKechnie J made a custodial order on the basis that ‘the prosecution case was “objectively strong” because the High Court had recently ordered a retrial’ instead of quashing the case.[135]

Fixed term of detention

Recommendation 10–5            Where not already in place, state and territory governments should implement Recommendation 7–2 of the ALRC Report Equality, Capacity and Disability in Commonwealth Laws to provide for a fixed term when a person is found unfit to stand trial and ensure regular periodic review while that person is in detention.

10.69  A person charged with a serious indictable offence found unfit to stand trial may be ordered to spend time in forensic custody under supervision. Custodial supervision regimes[136] fall into four broad categories:[137]

  • detention without a nominated end date: the court makes a custodial supervision order of indefinite length. The term of detention rests in the hands of administrative decision-makers who conduct reviews.[138]
  • custody for a nominal term: the court fixes a term for custodial supervision, [139] at the end of which, the court initiates, under its own motion, a ‘major review’. The court must release the person, unless satisfied that the person would be a serious risk to themselves or members of the public.[140] This approach has been described as being broadly consistent with preventative detention regimes applicable to serious sex offenders.[141]
  • custody for a limiting term: the court orders that the person be detained for a period that is the best estimate of the sentence the court would have imposed following a full criminal trial.[142] However, upon an application, the court may extend the term of detention if the person would present an unacceptable risk of serious harm to others.[143]
  • custody for a fixed term: detention can only be for a specific period.[144] Under Commonwealth law, this term cannot exceed the maximum term for the offence. In the ACT and SA, the maximum term is the term that the court would have imposed following a ‘normal’ criminal trial. The person cannot be detained for longer than this period.[145]

10.70  Regimes that can lead to indefinite detention[146] raise two key access to justice issues: the potential for detention that far exceeds the sentence that may have been imposed for the offence charged; and the concomitant possibility that a person chooses to plead guilty and end up in the criminal justice system instead of being treated as part of the mental health system or assisted through guardianship regimes.

10.71  Indefinite detention regimes enforced after a finding of unfitness have received international criticism. The United Nations Committee on the Rights of Persons with Disabilities criticised the operation of WA’s unfitness to stand trial regime, which resulted in the detention of an Aboriginal and Torres Strait Islander man for nearly a decade.[147]

10.72  In order to avoid indefinite detention, a person may rely on legal advice to plead guilty.[148] For example, NATSILS provided the following case study in its submission to the Indefinite Detention Inquiry:

‘Mary’ is a CAALAS client who suffers from a cognitive disability. Mary is from Central Australia, but was found unfit to plead in WA and detained there indefinitely. By agreement between the WA and NT Governments, Mary was released from detention in WA and returned to Central Australia where public housing accommodation had been arranged. Unfortunately Mary was taken back into police custody following the commission of further offences. CAALAS was able to take instructions from Mary in relation to these offences, and the matter resolved to a plea with Mary receiving a term of imprisonment. In CAALAS’ observation, being detained indefinitely due to a question of fitness to plead was far more distressing and traumatic for Mary than receiving a finite term of imprisonment. Whilst indefinitely detained, Mary was extremely frustrated and upset and would frequently ask her lawyer when she was getting out, and when she was going home. CAALAS observed the lack of certainty to be utterly tortuous for her.[149]

10.73  Where people plead guilty in order to avoid indefinite detention they enter the criminal justice system instead of the forensic mental health system and may not receive necessary treatment or care. This could affect the likelihood of recidivism and runs counter to legal principles that underpin fair trials and access to justice.[150]

10.74  The ALRC’s recommendations contained in the ALRC’s Report Equality, Capacity and Disability in Commonwealth Laws,relating to detention following a finding of unfitness to stand trial were supported by the Senate Community Affairs References Committee in 2016.[151] The Law Reform Commission of WA also recommended that custody orders should not be indefinite.[152] Inquiries by the NSW Law Reform Commission (NSWLRC) and Victorian Law Reform Commission (VLRC) recommended the adoption of limiting terms and indefinite detention regime with rolling five year reviews respectively on the basis that the possibility of detention beyond the end of the nominated term is sometimes necessary for community protection.[153]

10.75  While many stakeholders expressed support for ‘limiting terms’,[154] a number noted that the time spent in detention as part of the criminal justice process must be finite.[155] The Mental Health Commission of NSW submitted, for example, that it ‘remains concerned about the indefinite detention of individuals found unfit to be tried, including by way of extension of court order limiting terms’.[156]

10.76  NATSILS submitted to the Indefinite Detention Inquiry that the absence of finite orders leads to

the paradoxical result… that there are rightfully limits on the time spent in custody for those convicted of crimes, including those who are mentally impaired, whilst the current legislation allows for indefinite detention, of those mentally impaired accused who are not convicted in law of any crime.[157]

10.77  NATSILS provided the following case study to illustrate the risk of indefinite detention once a custodial supervision order is made—even where that order is for a term reflective of the sentence that would have been given if ordinarily convicted of the offence:

‘Ronald’ is an Aboriginal man who required criminal law assistance from CAALAS. Ronald was subject to an adult guardianship order. Despite being subject to an adult guardianship order, Ronald was not receiving enough support or resources from the Department of Health and this prompted his guardian to raise the issue of fitness to plead at Ronald’s court hearing. Ronald was assessed as unfit to plead. As a result, Ronald was in custody at the Alice Springs Correctional Centre from August 2007 – July 2013, and at the time of writing remains in the Secure Care facility. Ronald’s period of detention was initially set at a nominal term of 12 months, however when this nominal term has been reviewed, Ronald’s period of detention has been further extended due to a lack of community supports and alternatives. CAALAS estimates that if Ronald had been found guilty of the criminal charges, he would have received a sentence of imprisonment of approximately 4 months. In contrast, he has now been in custody for almost 9 years and it is unclear when he will be released.[158]

10.78  The Law Council of Australia, in its submission to this Inquiry noted that ‘defendants, once found to lack legal capacity and consigned to a “mental health facility”… have little prospect of demonstrating a change in capacity and effectively remain in custody for an indeterminate period’.[159]

10.79  The criminal justice system is not the appropriate pathway for the ongoing management of people with mental illness or cognitive impairment. As stated in the ALRC’s Equality Capacity and Disability in Commonwealth Laws Report: ‘if [the person is] a threat to themselves or the public at [the time their set period of detention ends], they should be the responsibility of mental health authorities, not the criminal justice system’.[160] The ALRC notes that states and territories also have in place disability or guardianship legislation that permits detention of persons with a cognitive impairment who present a risk to themselves or others.[161]

Regular periodic reviews

10.80  As a matter of broad principle, the ALRC considers that, within the constraints of the fixed term model discussed above, it is important to facilitate the recovery and gradual reintegration of persons held under custodial supervision orders, and that the term of a custodial supervision order should be ‘the maximum period that forensic patients spend in prison’.[162] The provision of trauma-informed, culturally appropriate services to assist a person while in custody is a crucial step in this process. The ALRC considers that the provision of such services should be supplemented by a regular periodic review while the person is in detention. The purpose of such a review would be to determine both whether the person should be released prior to the expiry of the fixed term, and to monitor and evaluate the services that are made available while the person is under the order.

Judicial discretion—non-custodial supervision orders

10.81  Stakeholders to this Inquiry submitted that the criminal justice system should adopt a health-based, therapeutic approach to the treatment of persons found unfit to stand trial.[163] In all jurisdictions except WA, the court has the power to make conditional non-custodial orders with regard to a person found unfit to stand trial. In WA, where a person is found unfit to stand trial, the court has two options: a custodial supervision order or unconditional release. It cannot make a conditional non-custodial supervision order. A case study provided by Legal Aid WA demonstrates how the lack of judicial discretion can perpetuate a cycle of contact with the criminal justice system:

A young Aboriginal man from a remote East Kimberley community, suffers Foetal Alcohol Spectrum Disorder, and as a result is severely impaired in his cognitive functioning. Since about the age of 13, he has been repeatedly arrested and charged by Police for committing stealing and burglary offences, always in company with other young people, who are less impaired than him or cognitively able. These offences have never been at the high end of the scale in terms of seriousness. Although his participation in this type offending has seemed to increase as he has grown older, he remains as suggestible and vulnerable to peer direction as he has always been…. [He is repeatedly] found unfit to stand trial, and his matters continue to be dismissed, followed by his unconditional release…. There are no social supports available for him because he cannot be subject to youth corrections orders.[164]

10.82  The ALRC considers that courts should be given the power to impose a range of orders—including non-custodial supervision orders—a view supported by stakeholders.[165] Legal Aid WA, in the same case study, demonstrated that such a holistic approach could reduce the likelihood that a person with cognitive impairment and complex needs comes into contact with the criminal justice system again:

Recently, in finalising the last set of charges against him, the young man’s defence counsel and a proactive youth justice officer, worked with the family to explore other options. They supported a referral to a social and emotional wellbeing program run by the local Aboriginal health service. This is a one on one mentor program that is very flexible to adapt to an individual’s needs, and may assist the young man to be proactively engaged in his community and family life, without becoming caught up in antisocial behaviour. This option was not and could not be provided by the criminal justice system—it is a health system program, which may well prevent further involvement in the criminal justice system for a young person with complex mental health needs…. [This case] highlights the need for a more flexible and medically supportive judicial approach to managing FASD sufferers within the structures of the court system.[166]

10.83  In the above case study, a court with the flexibility to order non-custodial supervision orders would have the power to require the young man attend the mentor program, and could require the program to report to the court on its efficacy.

10.84  A holistic, therapeutic approach should be applied both to non-custodial supervision orders and the custodial orders discussed in the previous section. This approach should extend to the services and assistance available to a person while under a custodial supervision order, and following their release. The principles discussed elsewhere in this Report about the need for flexible, culturally appropriate, trauma-informed approaches should underpin the development of such services.