579. Fitness to Plead and Problems of Comprehension. A difficulty that has arisen in a number of cases concerning Aborigines relates to their fitness to plead (and thus to be tried) because of their inability to understand the charge or the nature and course of the court proceedings to which they are being subjected. This difficulty may result in part from language problems, which can be addressed, if not overcome, by the provision of an interpreter. However such problems may still occur, because it may be difficult, perhaps impossible, to explain even basic legal concepts to an Aborigine who has no knowledge or experience of the criminal justice system (eg the concepts of ‘guilty’ or ‘not guilty’). Both the court room and the personnel and procedures of a criminal trial may be intimidating for a person who may be illiterate or who has had little or no formal education. Justice Kriewaldt, assessing his experience in the Northern Territory Supreme Court in the 1950s, clearly thought that many Aborigines were not fit to plead:
So far as I have been able to ascertain, the point has never been taken in the Northern Territory that an accused aborigine did not have sufficient education or intelligence or background of civilisation to understand the proceedings. So far as my experience goes, if the point had been taken, the correct decision in many instances would have been that the accused did not understand, and could not have been made to understand, what was going on … I am certain that no aborigine who has appeared before me has understood the respective functions of judge, jury or witnesses, or has appreciated that the proceedings were directed to ascertain whether the evidence sufficed to establish beyond reasonable doubt that he was guilty of the crime alleged against him.
580. The Present Law. The legal issue of fitness to plead arises principally in the context of a person’s mental or physical capacity. At common law a person suffering from a mental or physical incapacity may be unfit to plead: if so, no plea can be taken, and the trial cannot proceed. This can be done at the court’s instigation if neither the prosecution nor the defence seek such an inquiry. The issue normally arises in the context of a person suffering some mental incapacity. A person found unable to plead on grounds of insanity may then be dealt with under the relevant mental health legislation.
581. Fitness to Plead and the Trial of Traditionally Oriented Aborigines. Different considerations arise in relation to those Aborigines whose unfitness to plead is not the result of mental incapacity but rather of lack of comprehension due to massive cultural barriers. Most state legislation relating to unfitness to plead refers to insanity or mental incapacity. However, in some jurisdictions the relevant provisions are expressed more generally, so that they are capable of applying to such problems. The Criminal Codes of Western Australia, Queensland and the Northern Territory have specific provisions dealing with the situation of a person unable to understand the proceedings at his trial. The position in Western Australia is of particular interest. Section 631 of the Criminal Code (WA) states:
If, when the accused person is called upon to plead to the indictment, it appears to be uncertain, for any reason, whether he is capable of understanding the proceedings at the trial, so as to be able to make a proper defence, a jury of twelve men, to be chosen from the panel of jurors, are to be empanelled forthwith, who are to be sworn to find whether he is so capable or no … If the jury find that he is not so capable, the finding is to be recorded, and the Court may order the accused person to be discharged, or may order him to be kept in custody in such place and in such manner as the Court thinks fit, until he can be dealt with according to law …
To some extent overlapping with the Code provision is s 49(1) of the Aboriginal Affairs Planning Authority Act 1972 (WA):
In any proceeding in respect of an offence which is punishable in the first instance by a term of imprisonment for a period of six months or more the court hearing the charge shall refuse to accept or admit a plea of guilty at trial or an admission of guilt or confession before trial in any case where the court is satisfied upon examination of the accused person that he is a person of Aboriginal descent who from want of comprehension of the nature of the circumstances alleged, or of the proceedings is or was not capable of understanding that plea of guilt or that admission of guilt or confession.
Section 49 has been considered by the Western Australian Supreme Court on a number of occasions. In Smith v Grieve Justice Burt held that the procedure was mandatory. Once the Court was satisfied that the defendant was an Aborigine (as defined), it had no discretion with respect to compliance. Justice Jones in Munro v Sefton agreed:
It follows that in all but the very simplest and most obvious cases the only safe course — the proper course — for justices — is to examine such an accused person, in open Court, to ascertain whether he does or does not understand ‘the nature of the proceedings …’ and if there is any substantial doubt as to whether he does or does not, then not to accept a plea of guilty.
In R v Grant the Supreme Court had to consider the meaning both of s 631 of the Criminal Code (WA) and of s 49(1). Grant, a tribal Aborigine who could not understand English, was charged with murder. There was great difficulty in communicating even with the aid of an interpreter. When asked the question ‘How say you are guilty or not guilty?’ Grant had replied ‘yes’. There was great difficulty in explaining in his language the meaning of ‘unlawful’, ‘guilty’ or ‘not guilty’. The accused, however, indicated that ‘he had a general idea of where he was, that it was wrong both in his law and ours, to kill, and that he could go to prison’:
He said enough which if believed and if the interpretation was accepted as correct, was when added to other evidence which could be available, sufficient, subject to any questions of law, to enable a jury lawfully to convict him of manslaughter.
Justice Wickham set out what he considered the correct procedure:
The issue then of the capacity of the accused to plead and to be tried must first itself be tried as a separate issue by a jury empanelled for that purpose. If the answer is in the affirmative then if nothing more appears, a plea of not guilty could then be entered under s 619. It would only be then upon his trial that other questions would arise in relation to s 49 of the Aboriginal Affairs Planning Authority Act and the questions of whether any admissions or confessions said to have been made by the acc used person would be admissible in evidence.
Justice Wickham thought that the consequential provision in s 631, for a person found unfit to plead to be kept in custody at the Governor’s pleasure, would only apply to a person suffering ‘some defect of mind’, rather than some ‘lack of comprehension’ as in the case of a tribal Aborigine.
582. Ngatayi’s Case. Further light was shed on s 631 by the High Court in Ngatayi v R, which had a number of similar features to Grant. Ngatayi, a tribal Aborigine with little or no understanding of English, was charged with murder. When he was called upon to plead to the charge through an interpreter, his counsel had sought a jury under s 631, on the basis that Ngatayi was incapable. of understanding that it was a defence to a charge of wilful murder that he was drunk and had not formed an intention to kill:
The trial judge declined to apply s 631. He also refused to accept Ngatayi’s plea of guilty (pursuant, it seems, to s 49 of the 1972 Act), and ordered a plea of not guilty to be entered. The case proceeded and Ngatayi eventually gave evidence through an interpreter and made certain admissions. He was found guilty of wilful murder by the jury. Special leave to appeal to the High Court was sought on the sole ground that the procedure in s 631 should have been followed. The High Court granted special leave but dismissed the appeal. In doing so the Court commented that s 631:
does not mean that an accused can only be tried if he is capable, unaided, of understanding the proceedings so as to be able to make a proper defence. This is self-evident when the incapacity to understand the proceedings is due to an inability to understand the language in which the proceedings are conducted. In such a case, if an interpreter is available the incapacity is removed. Similarly, in deciding whether an accused is capable of understanding the proceedings so as to be able to make a proper defence it is relevant that he is defended by counsel. If the accused is able to understand the evidence, and to instruct his counsel as to the facts of the case, no unfairness or injustice will generally be occasioned by the fact that the accused does not know, and cannot understand, the law. With the assistance of counsel he will usually be able to make a proper defence. That of course is the test which s 631 provides’ is the accused capable of understanding the proceedings at the trial, so as to be able to make a proper defence? The section does not require that an accused, before he can be tried, must be capable of understanding the law which governs his case, if that lack of capacity does not render him unable to make a proper defence.
The correctness of the assumption, made by the Court, that the presence of an interpreter would remove any incapacity resulting from language difficulties, would be a matter of fact in each case. It is well known that there is a shortage of skilled interpreters in Aboriginal languages, especially for court work, and in many cases interpreters will have no training at all. It is one thing to be able to speak an Aboriginal language but quite another to be able to explain even basic legal concepts and the nature of court proceedings. In addition, the difficulties of interpreting Aboriginal languages and the strong link between language and culture have been noted by a number of writers over a considerable period of time. The majority in Ngatayi also emphasised the value of legal representation in avoiding any unfairness which might result from the accused being unable to understand the proceedings. This places a heavy burden on counsel to inform an accused of the process to which he is being subjected. It also assumes that counsel can be adequately instructed by the client. Of course, ignorance or misunderstanding of the law is not itself a defence to a criminal charge, and s 631 does not require that an accused be able to understand the law. But as the High Court pointed out, such incomprehension would be relevant if it meant that the accused was unable to give relevant instructions or information to his counsel.
583. Treatment of Persons Found Unfit to Plead. Another, and perhaps equally basic, point raises doubts as to whether the law relating to fitness to plead is an adequate way of dealing with traditional Aborigines. If fitness to plead is to be argued in relation to traditional Aborigines (other than on grounds of mental disability or insanity), appropriate alternative procedures would need to be introduced to deal with them. At present a person found unfit to plead due to physical or mental disability may be detained (usually in an institution for the mentally ill) pursuant to mental health legislation. But in the case of a person found unfit to plead because of lack o£ comprehension there appears to be no legislation providing for detention. It is not appropriate to detain someone incapable of comprehending proceedings, but not clinically insane, for an indefinite period or until it is considered that he will be capable of understanding the proceedings and so fit to stand trial. The fitness to plead provisions as they apply in the majority of cases, that is to mentally ill persons, have also been criticised for this reason. Persons found unfit to plead may be ordered to be detained indefinitely without any consideration being given to the merits of the case against them, and without their having been tried. It has been argued that determination of fitness to plead should be postponed until the general issue of guilt or innocence is determined. This would mean that if a person was acquitted, fitness to plead would not arise as an issue.
584. Proposals for Change. So far as the general law is concerned, the Criminal Law and Penal Methods Reform Committee of South Australia recommended that the plea of unfitness for trial be abolished and that a person’s fitness only be a ground for an adjournment not exceeding six months. This would be determined by a judge alone rather than by a jury empanelled for the purpose. After six months the trial should proceed with a plea of not guilty entered if the accused appears unable to plead. The jury should be informed if the accused has been unable to properly instruct his solicitor, and may take this into account in deciding whether a reasonable doubt exists as to the guilt of the accused. These recommendations, which have not been implemented, were directed at the problems that arise for mentally ill persons, and not at the specific problem of traditional Aborigines with no comprehension of the general law or the system of criminal trial. The same procedure could also, however, be applied to such Aborigines. In the absence of changes in the general law on the point, the few cases involving traditional Aborigines whose comprehension of the trial process is (despite legal and translation assistance) slight or non-existent may still present problems, and the existing provisions, framed to deal with the quite distinct questions of mental illness, are inappropriate in such cases. It is true that the range of prosecutorial discretions, discussed in Chapter 20, will also be available and may sometimes be used. But there can be no guarantee that they will be so used, and the court has — and rightly has — little or no control over their use.
585. Conclusion. The problems created by incomprehension of the nature of a guilty plea and of the trial that some traditional Aborigines suffer from are no reason for applying a procedure designed for mentally ill persons, which may result in detention without trial. Nor are they a reason for in effect exempting such a person, through a pre-trial procedure, from the application of the criminal law. But such incomprehension is a good reason for requiring the prosecution case to be made out. By definition, in such cases a plea of guilty is likely to be unreliable, even meaningless. Accordingly it should be provided that, in a criminal proceeding against an Aboriginal defendant who appears to the court not to be fluent in the English language, the court should not accept a plea of guilt unless it is satisfied that the defendant sufficiently understands the effect of the plea, and the nature of the proceedings. If necessary, the court should adjourn the proceedings to allow legal advice or an interpreter to be provided, to assist in explaining the plea and its effect. This does not mean that the defendant needs to have a lawyer’s understanding of the plea or the proceeding, only that the level of understanding should be sufficient to justify the trial proceeding on the basis of a guilty plea. If this does not exist, a plea of not guilty should be entered. This provision should apply even where the defendant is represented, although the existence of legal representation will assist in ensuring that the basic level of understanding required for a guilty plea exists.