27. Criminal Justice (Mental Impairment) Act 1999

27.1 Fitness to stand trial

A person is presumed fit to stand trial unless upon investigation it is established on the balance of probabilities that he or she is unfit.

Such investigation can be commenced by the court, of its own initiative, by the defendant or by the prosecutor at any time after a person is charged. Before such investigation is undertaken it must appear to the court that there is a real and substantial question as to fitness to stand trial.

Therefore, if a prosecutor becomes aware of matters that would raise a question as to fitness to stand trial, there lies an obligation to raise it with the defendant’s counsel or, if unrepresented, with the court. Ordinarily, the fitness issue will be raised by the defendant’s counsel.

In these circumstances, a prosecutor should consider the following:

• whether there is a reasonable prospect of conviction on each or any of the charges
• whether a report has been obtained from a suitably qualified expert providing an opinion on the defendant’s fitness to stand trial which addresses the criteria set out in s8
• whether the report addresses the likelihood of the defendant becoming fit to stand trial during the next 12 months

The real and substantial question as to a defendant’s fitness to stand trial only arises if one of the five criteria laid out in s8 is reasonably open.

The issue of whether a defendant is fit to stand trial should be left to a jury unless no reasonable jury, properly instructed, could find the accused was not fit to be tried. (Kesavarajah v R (1994) 181 CLR 230 per Mason CJ, Toohey & Gaudron JJ at 244)

In some circumstances it will be readily apparent that the defendant is unfit to stand trial. However, where the issue of fitness is unclear an independent assessment may be required.

In determining whether it is appropriate to obtain an independent assessment of the defendant, a prosecutor should prepare a memorandum outlining the reasons for such a course of action. The consent of the Director or Deputy Director is required before an independent expert opinion is sought for that purpose.

Where fitness to stand trial is an issue requiring investigation, the principles discussed by Smith J in R v Presser [1958] VR 45 at 48; [1958] ALR 248 cited with approval in Ngatayi v R (1980) 147 CLR 1 at 8, are of consequence when considering the criteria laid out in s8:

A mere lack of formal education, a mere lack of familiarity with court forms and procedures, would not, of course, render a man unfit to be tried, but he may, upon the test of fitness for the purposes of the section that has been laid down in the cases, be held unfit to be tried when he is far from being insane in the colloquial sense. Dixon, J, as he then was, mentioned in Sinclair v R (1946) 73 CLR 316, that it does not seem to have been noticed by the text writers how high a degree of intelligence the test might demand if it were literally applied. But he is not there, in my view, suggesting that it should be applied in any extreme sense, or in any over-literal sense. It needs, I think, to be applied in a reasonable and commonsense fashion. And the question, I consider, is whether the accused, because of mental defect, fails to come up to certain minimum standards which he needs to equal before he can be tried without unfairness or injustice to him.

He needs, I think, to be able to understand what it is that he is charged with. He needs to be able to plead to the charge and to exercise his right of challenge. He needs to understand generally the nature of the proceeding, namely, that it is an inquiry as to whether he did what he is charged with. He needs to be able to follow the course of the proceedings so as to understand what is going on in court in a general sense, though he need not, of course, understand the purpose of all the various court formalities. He needs to be able to understand, I think, the substantial effect of any evidence that may be given against him; and he needs to be able to make his defence or answer to the charge. Where he has counsel he needs to be able to do this through his counsel by giving any necessary instructions and by letting his counsel know what his version of the facts is and, if necessary, telling the court what it is. He need not, of course, be conversant with court procedure and he need not have the mental capacity to make an able defence; but he must, I think, have sufficient capacity to be able to decide what defence he will rely upon and to make his defence and his version of the facts known to the court and to his counsel, if any.

Of course, this test needs to be considered in light of modern day criminal practice and procedure. The manner in which a trial is conducted including the extent to which the court can monitor the use of technical language, oppressive questioning, and protect the rights of all participants, including witnesses and the defendant, means that where a consideration is made as to whether the defendant is unable to follow the course of proceedings this must be determined bearing in mind that the trial process can accommodate a defendant’s incapacities by having regular breaks, slowing the pace of proceedings, monitoring the type and length of questioning witnesses, including the defendant, and allowing for adjournments where necessary.

Similarly, an assessment of a defendant’s capacity to understand the nature of the charge, to understand the nature of the proceedings, to plead to the charge or exercise the right of challenge must be considered in the context of the important role the defendant’s counsel plays in the proceedings.

Therefore, there is an expectation that the prosecutor scrutinises with care any expert opinion which focuses on an incapacity that renders the defendant unfit to stand trial especially if the “minimum standard” of intelligence or capacity upon which the opinion is predicated appears to be far greater than the provision intended.

A defendant’s fitness to stand trial need not be investigated by a jury if both the defendant and prosecution agree (see Tasmania v Drake [2006] TASSC 21).

If both the prosecution and the defendant’s counsel agree the defendant is unfit to stand trial then the court may record a finding to that effect (s19).

27.2 Special hearing

In circumstances where a defendant is found not fit to stand trial and after the court has determined whether the defendant is likely to become fit to stand trial in the next 12 months, it must proceed to hold a special hearing.

A special hearing is to be conducted in the same manner as a criminal trial, as the defendant is taken to have pleaded not guilty to the offence (s16).

In criminal proceedings the determination will be made by a jury (s15).

27.3 Restriction and supervision orders

If a person is found not fit to stand trial and after a special hearing a jury cannot say the person is not guilty, or alternatively a person is found not guilty on the grounds of insanity, the court has the power to make a number of orders (ss18 and 21). Such orders include a restriction order or a supervision order.

A restriction order is an order requiring the person to whom it applies to be detained in a secure mental unit. Only the Supreme Court has the power to make a restriction order (s24).

A supervision order releases a person under the supervision of the Chief Forensic Psychiatrist (s29A).

When assisting the court in such matters, prosecutors need to make submissions on the basis that such orders are not imposed for punishment but for the protection of the accused and the public (s34).

Section 26(2) allows the Supreme Court, on application under this section or s37(3)(b), to discharge a restriction order. Section 27 allows the Supreme Court to make any other order upon the discharge of a restriction order.

Section 30 allows the Supreme Court to revoke or vary a supervision order.

The court cannot discharge a restriction order without a report from the Chief Forensic Psychiatrist and another psychiatrist. Thus, upon such application, prosecutors should ask the court for a report from the Chief Forensic Psychiatrist.

Further, before discharging a restriction order, the court is required to consider a report on the attitudes of the victims and next of kin (s33). Section 33(1) provides:

For the purpose of assisting the court to determine proceedings under this Part, the Attorney-General must provide the court with a report stating, so far as reasonably ascertainable, the views of the next of kin of the defendant and the victims, if any, of the defendant’s conduct.

“Attorney-General” is not otherwise defined in the Act and so means the Attorney-General himself or herself. To overcome the logistical difficulty created, a direction has been received from the Attorney-General pursuant to the Director of Public Prosecutions Act 1973 “for the purpose of proceedings under the Criminal Justice (Mental Impairment) Act 1999, to provide reports on the Attorney-General’s behalf under section 33(1) of the Act”.

Thus, prosecutors with conduct of such matters should instruct a WAS officer to obtain such reports from the next of kin. However, in determining whether to support or oppose an application, the Director is not bound by the views of the next of kin. Whether to support or to oppose an application to discharge a restriction order should be determined on all the evidence bearing in mind the principles set out in ss34 and 35. Prior to any hearing, prosecutors should consult with the Director or Deputy Director.