Unfitness to stand trial

How should a court decide when an accused is unfit to stand trial because of a mental impairment – such as mental illness, a brain injury or intellectual disability? Should the decision be made by a jury, a judge, or by agreement between the counsel and the judge? This is one of the matters under consideration by the Victorian Law Reform Commission as part of its review of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) (CMIA).

Fitness to stand trial
Fitness to stand trial refers to the doctrine or procedure that exempts an accused from an ordinary trial, sometimes temporarily, if he or she cannot:
• understand the nature of the charge
• enter a plea to the charge and challenge jurors or the jury
• understand the nature of the trial
• follow the trial
• understand the evidence
• instruct their legal practitioner.

The doctrine is founded on the basic right of an accused to a fair criminal hearing. It exists to prevent inaccurate verdicts, maintain the integrity of the criminal trial process and avoid unfairness.
There is a presumption under the CMIA that an accused is fit to stand trial. However, the presumption is rebutted if a jury in either the Supreme Court or County Court determines that the accused is unfit to stand trial.  In that case, the matter generally proceeds to a ‘special hearing’ before a different jury to determine whether the accused committed the offence, is not guilty, or is not guilty because of mental impairment.

The role of the jury
Currently in Victoria, a jury is empanelled to decide whether the accused is unfit to stand trial, even in cases where the prosecution and the defence agree that the accused is unfit (based on expert reports). The jury is then required to make a formal finding of fitness or unfitness.

Courts in Tasmania and the Northern Territory have the power to dispense with a jury investigation, and record that the accused is unfit if the prosecution and defence agree.  Some jurisdictions have dispensed with the jury completely in investigations of fitness to stand trial. In New South Wales, Queensland and Western Australia, a judge or a specialist division of the court determines the question of fitness.  In South Australia, this process involving a judge can be dispensed with if the prosecution and the defence agree.  In England and Wales a judge, rather than a jury, determines fitness to stand trial. 

What would be the advantages of dispensing with juries in this matter? First, judges or lawyers may be better able than juries to make decisions on a technical ‘medico-legal’ issue. Secondly, juries are finders of fact and do not usually become involved in procedural matters. Thirdly, the current process requires two juries, one to determine fitness and one for the special hearing – the process would be more efficient without a jury investigation, especially when the question of fitness arises mid-trial. Finally, a process without a jury may be less confusing or stressful for the accused, especially if they have an intellectual disability or cognitive impairment.

On the other hand, a finding of unfitness to stand trial has serious consequences and may lead to a lengthy period of detention and/or supervision in the community. The retention of the jury may be an important safeguard, providing additional scrutiny. The public interest in this significant trial issue is reaffirmed by the presence of, and decision of, a jury rather than by agreement of legal and medical professionals. Further, removing the jury in fitness investigations where the prosecution and the defence agree that the accused is unfit to stand trial may be problematic if the accused is unable to instruct their lawyer. Is it appropriate for a defence lawyer to consent to dispensing with the jury if they have no instructions to proceed in this way? Lawyers may face this ethical issue when representing clients who have a mental impairment.

Other jurisdictions that have removed the jury from investigations of fitness have built safeguards into the process to mitigate concerns and protect the process from abuse. In England and Wales, two registered medical practitioners must agree on a finding of unfitness to stand trial. Another safeguard could involve a requirement that the judge independently assess that the evidence establishes unfitness to stand trial (rather than simply the power to do so), even when the prosecution and defence agree. In Victoria, under the CMIA, there is already a procedure whereby the judge may hear the evidence and either direct that a verdict of not guilty because of mental impairment be recorded, or direct that the person be tried by a jury.  Arguably, there should be a consistent approach taken to establishing the defence of mental impairment and fitness to stand trial.

The VLRC’s consultation paper asks a range of questions about the operation of CMIA, including the role of the jury in determining fitness to stand trial. We are interested in hearing from those with a view on whether juries should be retained or dispensed with, and on other related matters referred to the Commission by the Attorney-General. Formal consultations will take place in July and August, and submissions close Friday 23 August. For more information contact team leader Nina Hudson: nina.hudson@lawreform.vic.gov.au or visit www.lawreform.vic.gov.au.

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