Indefinite detention when unfit to stand trial

Proposal 11–2           Where not already in place, state and territory governments should provide for limiting terms through special hearing processes in place of indefinite detention when a person is found unfit to stand trial.

11.51  ‘Limiting terms’ refer to the period of time a person found unfit to stand trial must spend in forensic custody under supervision. The length of a limiting term represents the sentence of imprisonment a court would have imposed for the offending conduct if the person had been found guilty at trial.

11.52  In jurisdictions that do not have limiting terms, stakeholders advised the ALRC that, when required, fitness to stand trial may not be raised because an accused person may end up held in indefinite detention without trial. In these circumstances, the ALRC has been advised that the accused person may instead enter a plea of guilty or stand trial in order to receive a fixed term of imprisonment with a release date.

11.53  This means that some people—particularly Aboriginal and Torres Strait Islander peoples—with cognitive impairments or mental health issues, who may not have the capacity to understand the consequences of a guilty plea or court processes, are entering the criminal justice system, instead of the forensic mental health system, and are not receiving the required treatment or care.

11.54  This may affect the likelihood of recidivism and runs counter to legal principles that underpin fair trials and access to justice.[78]

Cognitive impairment in the criminal justice system

11.55  High rates of cognitive impairment have been observed in the Australian general prison population, with Aboriginal and Torres Strait Islander prisoners particularly likely to experience cognitive impairments such as Foetal Alcohol Spectrum Disorders (FASD) and Foetal Alcohol Syndrome (FAS).[79] Research has indicated that Aboriginal and Torres Strait Islander prisoners with cognitive impairments have earlier contact with the criminal justice system, occurring at a significantly higher rate than non-Indigenous prisoners with cognitive impairments.[80] This is particularly acute for Aboriginal and Torres Strait Islander women.[81]

11.56  The rate of cognitive impairment in the Aboriginal and Torres Strait Islander prison population was discussed in an inquiry conducted by the Senate Community Affairs References Committee into indefinite detention, to which the Aboriginal Legal Service of Western Australia submitted:

In my estimation, 95 per cent of Aboriginal people charged with criminal offences appearing before the courts have either an intellectual disability, a cognitive impairment or a mental illness. The overwhelming majority of those are undiagnosed and, therefore, untreated. If they go to jail it is almost impossible to conceive of them being diagnosed in jail; therefore, they are untreated. If you receive a community-type sanction, if you are from a regional or remote area, you will go to a place where you do not receive any meaningful interventions to deal with your problem.[82]

11.57  The final report of that inquiry highlighted:

  • the importance of assessment and screening tools in order to detect cognitive impairment at an early stage in criminal justice proceedings, including FASD;

  • the importance of a therapeutic approach towards people with cognitive impairment in the criminal justice system—particularly under legislation which allows for their indefinite detention; and

  • the particular attention needed in responding to Aboriginal and Torres Strait Islander people with cognitive impairment within the criminal justice system, including that these responses be culturally competent and pay particular attention to court processes and police questioning practices.[83]

Fitness to stand trial regimes

11.58  Where cognitive impairment or mental health issues are acute, the issue of a person’s fitness to stand trial may be raised. At common law, a person will be found unfit to stand trial if they cannot understand the offence with which they are charged or the nature of the proceedings against them. A person found unfit would not have the capacity to enter an appropriate plea, make a defence in answer to the charge, or give necessary instructions to counsel.[84]

11.59  State and territories have legislative responses to deal with findings of unfitness, which differ in two key ways. In the ACT, NSW, and SA, a person found unfit to plead may ultimately undergo a ‘special hearing’ process where a court makes a qualified finding on the limited evidence.[85] Where there is a qualified finding of guilt, the court can impose a limited term, which represents the time the person must spend in forensic custody under supervision. The length of a limiting term generally mirrors the sentence of imprisonment a court would have imposed for the offending conduct.[86]

11.60  All other states and territories do not have special hearings that result in limiting terms. A finding of unfitness to stand trial in these jurisdictions can result instead in indefinite detention.[87] As observed in the Senate Community Affairs References Committee report:

All Australian jurisdictions have in place legislation that addresses a defendant within the criminal justice system and their fitness to stand trial. These justice diversion provisions are applied when people with cognitive or psychosocial disability are deemed ‘unfit’ to stand trial ... [J]ustice 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.[88]

11.61  Indefinite detention regimes have affected Aboriginal and Torres Strait Islander peoples. For example, evidence submitted to the Senate Community Affairs References Committee 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.[89]

11.62  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,[90] and found that:

  • the men had been held in a maximum security prison in Alice Springs because no suitable places for forensic patients existed;[91]

  • 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.[92]

11.63  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 had resulted in the detention of an Aboriginal and Torres Strait Islander man for nearly a decade.[93]

11.64  There have also been calls among Australian defence advocates for the introduction of special hearings, supported by the implementation of throughcare following the conclusion of a limiting term.[94] In 2014, the ALRC recommended the introduction of limiting terms combined with regular reviews of detention orders for state and territory jurisdictions with indeterminate detention regimes.[95] These recommendations were supported by the Senate Community Affairs References Committee in 2016.[96]

11.65  The ALRC is aware that the introduction of limiting terms does not address the issue of people with cognitive impairment in the forensic mental health system being held in correction centres. This is an area of ongoing concern, on which state and territory bodies continue to make recommendations. [97]

11.66  The ALRC recognises that fitness to stand trial regimes, and the operation of forensic mental health systems are complex. The ALRC has focused on indefinite detention, as this affects incarceration rates, and it is the area most raised by stakeholders in preliminary consultations. The ALRC welcomes submissions on the proposal to abolish indefinite detention in response to a finding of unfitness to stand trial and any other related area.

[78]           NSW Law Reform Commission, People with Cognitive and Mental Health Impairments in the Criminal Justice System: Criminal Responsibility and Consequences, Report No 138 (2013) 31–5.

[79]           Eileen Baldry et al, ‘A Predictable and Preventable Path: Aboriginal People with Mental and Cognitive Disabilities in the Criminal Justice System’ (University of New South Wales, 2015) 156.

[80]           Ibid 31.

[81]           Ibid 45.

[82]           Senate Community Affairs Reference Committee, Parliament of Australia, Indefinite Detention of People with Cognitive and Psychiatric Impairment in Australia (2016) 24.

[83]           Ibid xiii–xix.

[84]           R v Presser [1958] 45 VR 48.

[85]           Crimes Act 1900 (ACT) pt 13; Mental Health (Forensic Provisions) Act 1990 (NSW) s 19; Criminal Law Consolidation Act 1935 (SA) pt 8A, div 3.

[86]           Crimes Act 1900 (ACT) s 301; Mental Health (Forensic Provisions) Act 1990 (NSW) s 23(1)(b); Criminal Law Consolidation Act 1935 (SA) s 269O(2). If the court finds no custodial sentence would have been imposed, it may impose any other penalty or order it might have made in a normal trial of criminal proceedings.

[87]           Criminal Code Act 1996 (NT) s 43ZC; Mental Health Act 2016 (Qld) ch 12 pts 3–4; Criminal Justice (Mental Impairment) Act 1999 (Tas) ss 15–18, 24, 26 (Tasmania first requires a qualified finding of guilt); Crimes (Mental Impairment and Unfitness to Be Tried) Act 1997 (Vic) s 27(1); Criminal Law (Mentally Impaired Accused) Act 1996 (WA) ss 16, 33.

[88]           Senate Community Affairs Reference Committee, Parliament of Australia, Indefinite Detention of People with Cognitive and Psychiatric Impairment in Australia (2016) 6.

[89]           Ibid 14.

[90]           Australian Human Rights Commission, KA, KB, KC and KD v Commonwealth of Australia [2014] AusHRC 80: Report into Arbitrary Detention, Inhumane Conditions of Detention and the Right of People with Disabilities to Live in the Community with Choices Equal to Others (2014).

[91]           A forensic patient facility was constructed in March 2013.

[92]           Senate Community Affairs Reference Committee, Parliament of Australia, Indefinite Detention of People with Cognitive and Psychiatric Impairment in Australia (2016) 35–6.

[93]           United Nations Committee on the Rights of Persons with Disabilities, Views Adopted by the Committee under Article 5 of the  Optional Protocol, Concerning Communication No. 7/2012, UN Doc CRPD/C/16/D/7/2012 (10 October 2016).

[94]           Senate Community Affairs Reference Committee, Parliament of Australia, Indefinite Detention of People with Cognitive and Psychiatric Impairment in Australia (2016) 69.

[95]           Australian Law Reform Commission, Equality, Capacity and Disability in Commonwealth Laws, Report No 124 (2014) rec 7–2.

[96]           Senate Community Affairs Reference Committee, Parliament of Australia, Indefinite Detention of People with Cognitive and Psychiatric Impairment in Australia (2016) xiii.

[97]           See, eg, NSW Law Reform Commission, People with Cognitive and Mental Health Impairments in the Criminal Justice System: Criminal Responsibility and Consequences, Report No 138 (2013) recs 10.1–10.2; Victorian Law Reform Commission, Review of the Crimes (Mental Impairment and Unfitness to Be Tried) Act 1997, Report No 28 (2014) recs 49–50, 98, 100, 104–5.