Review of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997: Report

3. Reframing the test for unfitness to stand trial

Introduction

3.1 ‘Unfitness to stand trial’ refers to the doctrine which exempts an accused from a standard criminal trial, sometimes temporarily, because at the time of the trial they cannot understand the trial or participate in it.[1] Unlike the defence of mental impairment, discussed in Chapter 4, which concerns the accused’s mental condition at the time of the offence, unfitness to stand trial relates to the accused’s mental condition at the time they are involved in court proceedings.

3.2 The doctrine of unfitness to stand trial is underpinned by the fundamental right of an accused to have a fair hearing. It seeks to avoid inaccurate verdicts,[2] maintain the moral dignity of the trial process[3] and avoid unfairness to an accused.[4]

3.3 Under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) (‘CMIA’) an accused is presumed to be fit to stand trial.[5] Thus, if the question arises, it is not a question of fitness to stand trial but a question of unfitness to stand trial. To be conceptually correct, this report will refer to ‘unfitness to stand trial’ unless the context requires otherwise.[6] In some instances the shorthand ‘unfitness’ will also be used.

3.4 The terms of reference specifically ask the Commission to consider whether the process of determining unfitness under the CMIA can be improved. The supplementary terms of reference ask the Commission whether the process for determining unfitness should be adapted for the Children’s Court. The Commission sought to identify issues in relation to the current operation of the law on unfitness to stand trial in its publications: Review of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997: consultation paper (‘the consultation paper’) and Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 and the Children’s Court of Victoria: supplementary consultation paper (‘the supplementary consultation paper’).

3.5 This chapter focuses on the Commission’s recommendations about how the current test for unfitness to stand trial under the CMIA, and its application, can be improved for both adults and young people.[7] Based on the views and suggestions received in submissions and consultations, the Commission has come to the following key conclusions that underpin its recommendations for change:

• It is only fair to subject accused to the trial process where they are able to make the crucial decisions relevant to their trial. The Commission recommends reframing the test for unfitness to stand trial to include all these decisions. The Commission also recommends a reformulation of the test to clarify the law and promote consistency in expert assessments where a delusional disorder is affecting an accused’s fitness.

• Flexibility in the law is essential so that it can apply in different jurisdictions and cater to the individual circumstances of an accused. The Commission makes recommendations that will allow the test to be adapted for use in the Magistrates’ Court and the Children’s Court and that are consistent with the Commission’s specialised approach to young people.

• Unfitness to stand trial is not a ‘black and white’ issue, but is decision-specific, time-specific and support-dependent. The law should accommodate the varying abilities, choices and needs of accused who may be unfit to stand trial to the greatest extent possible. The Commission therefore recommends a departure from the current test on unfitness, so that an accused’s decision to plead guilty can be given effect in certain circumstances. The Commission recommends that once an accused has been found unfit, measures should be taken to ensure that better use is made of the adjournment period to optimise their ability to become fit prior to a court determining that they are permanently unfit. The Commission also recommends that the law should do more to consider and provide the support that an accused with a mental illness, intellectual disability or other cognitive impairment may require to enhance their ability to participate in their trial.

• Expert assessments form the evidentiary foundation of findings of unfitness to stand trial. The Commission makes recommendations that aim to address any unnecessary variability in expert assessments of unfitness.

The current test for unfitness to stand trial

3.6 In the consultation paper, the Commission outlined some of the earliest cases on ‘fitness to plead’ including R v Dyson[8] (‘Dyson’) and R v Pritchard (‘Pritchard’).[9] In Pritchard, Baron Alderson set out what is now regarded as the legal basis for determining unfitness to stand trial, or the ‘Pritchard criteria’:

There are three points to be inquired into:— First, whether the prisoner was mute of malice or not; secondly, whether he can plead to the indictment or not; thirdly, whether he is of sufficient intellect to comprehend the course of proceedings on the trial, so as to make a proper defence — to know that he might challenge any of you to whom he may object — and to comprehend the details of the evidence, which in a case of this nature must constitute a minute investigation.[10]

3.7 The Victorian test for unfitness to stand trial derives from the judgment of Justice TW Smith in the case of R v Presser (‘Presser’).[11] Expanding on the Pritchard criteria, Justice TW Smith identified seven criteria (‘the Presser criteria’), to determine unfitness:

• ability to understand the charge

• ability to plead to the charge and to exercise the right to challenge jurors

• ability to understand generally the nature of the proceedings (that it is an inquiry as to whether the accused did what they are charged with)

• ability to follow the course of the proceedings

• ability to understand the substantial effect of any evidence that may be given against them

• ability to make their defence or answer to the charge

• ability to give any necessary instructions to their legal counsel.[12]

3.8 The test for unfitness to stand trial in the CMIA is based on the Presser criteria.[13] The CMIA provides that an accused is unfit to stand trial for an offence if, because their mental processes are disordered or impaired, they are or, at some time during the trial, will be:

(a) unable to understand the nature of the charge; or

(b) unable to enter a plea to the charge and to exercise the right to challenge jurors or the jury; or

(c) unable to understand the nature of the trial (namely that it is an inquiry as to whether the person committed the offence); or

(d) unable to follow the course of the trial; or

(e) unable to understand the substantial effect of any evidence that may be given in support of the prosecution; or

(f) unable to give instructions to his or her legal practitioner.[14]

3.9 Each of these criteria stands alone. An accused need only satisfy one of the above criteria to be found unfit to stand trial.

3.10 As stated at [3.3], under the CMIA, an accused is presumed to be fit to stand trial.[15] This is the case even where an accused has previously been found unfit. The presumption is rebutted if it is established, following an investigation by a jury, that the accused is unfit.[16]

3.11 The test for unfitness to stand trial in other Australian jurisdictions, the United Kingdom and New Zealand is broadly based on the Pritchard or Presser criteria, or a variation of those criteria.

Review of the test for unfitness to stand trial

3.12 In the consultation paper, the Commission asked for views on possible issues concerning the test for unfitness to stand trial. These included:

• whether the test should define the mental condition the accused must have to be found unfit

• whether the test should be based on the decision-making capacity or effective participation of the accused

• whether the test should consider the accused’s rationality in some way

• whether any of the existing Presser criteria should be changed.

Threshold definition

3.13 In the consultation paper, the Commission sought views on whether a threshold definition, or a definition of the mental condition that the accused would have to meet to be found unfit to stand trial, should be included as part of the test for unfitness.

3.14 Providing for a threshold definition would require the existence of some sort of mental condition (for example, a mental illness, intellectual disability or other cognitive impairment), in addition to an inability to satisfy one of the capacity-based criteria in the test, to be found unfit to stand trial. It was suggested to the Commission in its preliminary research that a threshold definition could provide a useful link between the accused’s mental condition and the criteria for unfitness.

Views in submissions and consultations

3.15 The majority of submissions that addressed this issue and those consulted did not support introducing a threshold definition. It was noted that there were no problems with the absence of a threshold definition.[17] Further, some people thought that the emphasis of the test should be on the functional consequences of the accused’s mental condition, such as the inability to understand the nature of the trial, rather than on the mental condition itself.[18]

3.16 Two submissions saw merit in a threshold definition,[19] for example, to improve on the current requirement that the accused has ‘disordered or impaired’ mental processes.[20]

The Commission’s conclusion

3.17 Based on these views, the Commission has concluded that it is unnecessary to introduce a threshold definition.[21]

3.18 There do not appear to be any problems with the lack of definition or the requirement that the accused’s mental processes are ‘disordered or impaired’. The Commission agrees with the views expressed that the test’s focus should be on the effect any condition has on the accused. As the Commission observed in the consultation paper, not everyone who should be found unfit to stand trial would necessarily have a diagnosis of a mental condition. For example, it was noted by one of the Commission’s advisory committee members, that it is possible for a physical condition to affect a person’s capacity without fitting the definition of a ‘disability’.[22] In the Commission’s view, including a threshold definition based on mental diagnoses may unduly limit the application of the test.

Re-evaluating the basis of the test

3.19 A number of jurisdictions have been grappling with the question of whether the Pritchard or Presser criteria continue to be a ‘suitable modern basis’[23] for determining the issue of unfitness to stand trial. The discussion on this issue has focussed on whether the test should consider:

• the accused’s decision-making capacity or effective participation in the trial

• the accused’s ability to make decisions rationally or exercise some of the Presser criteria rationally.

3.20 There appear to be two main reasons the current test for unfitness to stand trial is being re-evaluated.

3.21 First, the current test may set too high a threshold for a finding of unfitness.[24] In some jurisdictions, debate has focussed on whether the test for unfitness should be based on the Pritchard or Presser criteria (that rely substantially on the factual understanding of the accused), or something more than this (such as the decision-making capacity or effective participation of the accused).[25] Although the discussion in other jurisdictions is yet to result in legislative change, this debate signals a potential shift from the current emphasis on passive participation, based on mere factual understanding, to a requirement that the accused be able to participate to a greater extent in the trial, for example, by making decisions.

3.22 Second, the current criteria were developed based on accused in cases such as Dyson and Pritchard involving people who were deaf and mute, and by extension accused with an intellectual disability.[26] The criteria can therefore be difficult to apply when an accused has a mental illness that is resulting in disordered or impaired mental processes.[27] An accused with a mental illness, unlike a person with an intellectual disability or other cognitive impairment, may have a factual understanding of the nature of the trial. However, their delusional beliefs may hinder their capacity to make decisions concerning their trial, or to make such decisions in an appropriate manner. This prompts an examination of whether the current criteria are suitable for people with a mental illness, and in particular, whether their ‘decision-making capacity’ or ‘rationality’ should also be taken into account in the test.

The ability to make decisions

3.23 ‘Decision-making capacity’ generally covers the ability of an accused to understand the information relevant to the decisions that they will have to make in the course of the trial, retain that information, use or weigh that information as part of a decision-making process and communicate their decisions. It relies on competencies that equip an accused to process alternative courses of action and to express a choice among alternatives.[28]

3.24 The Law Commission of England and Wales has proposed replacing the test based on the Pritchard criteria with a new legal test that assesses whether the accused has the decision-making capacity for trial or can effectively participate in it.[29] In its view, an accused cannot participate meaningfully in their trial unless they have the capacity to make decisions relating to the trial.[30] The New South Wales Law Reform Commission has recommended that the New South Wales test also include a consideration of decision-making capacity.[31]

3.25 Scotland, in contrast to England and Wales, has introduced legislation based on an accused’s ‘effective participation’. While effective participation covers similar ground to decision-making capacity, it is arguably a wider concept that includes the full or rational appreciation by the accused of the proceedings.[32] The New South Wales Law Reform Commission in its consultation paper People with cognitive and mental impairments in the criminal justice system: criminal responsibility and consequences noted weaknesses with this approach, including the risk that it would be overly inclusive and require a level of knowledge or competence that would go beyond rational decision making.[33]

3.26 In Victoria, the criteria in the CMIA do not necessarily exclude a consideration of an accused’s decision-making capacity. However, a clear link has not been expressed. In the consultation paper, the Commission asked whether the test for unfitness to stand trial should include a consideration of decision-making capacity or effective participation.

Views in submissions and consultations

3.27 Views expressed in submissions and consultations were divided on whether there should be a change in the basis of the test for unfitness to stand trial in Victoria. The majority of stakeholders who addressed this issue supported some change to achieve a fairer test for unfitness. Within this group, some favoured a test based on decision-making capacity, some favoured a test based on effective participation, while others did not express a preference. Those who supported a change expressed the following views:

• The current test does not set the threshold for unfitness at the right level.[34]

• While an understanding of the proceedings is important, an accused must also be able to effectively use this knowledge through their judgment, behaviour and participation.[35]

• For an accused to be able to account for their actions, they must be able to make decisions relevant to the trial.[36] For example, they must know how to answer the accusations that have been made against them.[37]

• Decision-making capacity is a conceptually easier way of describing and assessing unfitness to stand trial.[38]

3.28 Those who did not support changes to the test in this way noted that:

• The current threshold for unfitness to stand trial is set at the right level.[39]

• The current test and its application already consider decision-making capacity implicitly.[40]

• Such a change could introduce too much subjectivity into the test.[41] For example, it would be difficult for experts to ‘draw the line’ between when an accused has decision-making capacity and when they do not, given that their ability to make decisions may differ depending on the nature and complexity of the decision to be made.[42]

• Changing the test in this way could apply too broadly and capture people with a mild intellectual disability, people suffering from stress or people from poor educational backgrounds.[43]

3.29 Members of the Commission’s advisory committee had differing views on this subject. The value of decision-making capacity as the basis for the test and the value of consistency between the criminal and civil capacity regimes were noted. However, it was also noted that a test based on decision-making capacity or effective participation would be difficult for experts to assess.[44]

The Commission’s conclusion

3.30 The Commission agrees that, in practical terms, having a test based on ‘decision-making capacity’ or ‘effective participation’ could introduce too much subjectivity. Subjectivity in the test, particularly in terms of which decisions the accused needs to be able to make and what sort of participation is required before it is ‘effective’, would also be problematic for expert assessments. Further, the Commission understands the concern that such a test risks being overly inclusive.

3.31 It should be noted that in a trial there are forensic decisions as to the conduct of the trial that are properly made by an accused’s counsel. They include what questions and legal submissions should be made, and whether to call witnesses or tender documentary evidence. However, fundamental decisions—including whether to plead guilty or not guilty, and whether to give evidence—are properly the decision not of counsel but of the accused. Further, decisions properly to be made by counsel should be informed by competent factual instructions by the accused, which involves the accused being able to understand the main elements of the evidence led against them.

3.32 In the Commission’s view, it is only fair to subject an accused to the trial process where they are able to make the crucial decisions relevant to their trial. This is in line with the justifications for the doctrine of unfitness to stand trial, including to avoid unfairness and to ensure that a person is able to be accountable for their actions.[45]

3.33 The Commission considers that the best way to ensure that the test takes into account the accused’s ability to make the crucial decisions in their trial is to:

• evaluate the current criteria for unfitness to stand trial against the crucial decisions an accused should be expected to make

• supplement the criteria with a requirement that the accused be able to make these specific decisions, where the current criteria do not already cover them.

3.34 The Commission considers that this approach will result in a test that is easier to apply than a test based generally on decision-making capacity or effective participation. Further, it preserves the basic competencies essential for a fair trial in the test, which a test based on decision-making capacity or effective participation may leave out. For example, a person with paranoid delusions could have the ability to use and weigh information as part of a decision-making process but might not have the basic competency of instructing their lawyer because of their delusions.[46]

3.35 Having taken this approach, the Commission considers that the current CMIA criteria already take into account most of the crucial decisions the accused needs to make during a trial, such as the decision to enter a plea and deciding what instructions to give to their legal practitioner. As Mudathikundan et al have observed, ‘the component criteria [of the Pritchard criteria] already closely resemble a capacity based test in both nature and scope’.[47]

3.36 However, the main area of decision making not covered in the current CMIA criteria is the decision relating to giving evidence. As one barrister observed in a study that considered barristers’ views on the Pritchard criteria in England:

one of the ridiculous difficulties about ‘Pritchard’ is that it doesn’t even address the most crucial part – going into the witness box and telling the jury what you did or didn’t do … they are often swayed to acquit somebody who may or may not be innocent, because their explanation makes sense, because they like them … there is no substitute … if someone is not able to do that because cross examination will be meaningless, it may well be that that person should not be standing trial.[48]

3.37 The Commission recommends that two further criteria be added to the current criteria. They are that the accused must have the capacity to decide whether to give evidence and be capable of giving evidence if they wish to do so.[49] The capacity to make this decision and the ability to give evidence when an accused is affected by delusions is discussed at [3.53]. The original Presser criteria required that the accused ‘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’. It is unclear why this requirement was not ultimately included in the CMIA criteria.

3.38 The Commission acknowledges that there may be value in more closely aligning the criteria for unfitness to stand trial with capacity standards used in the civil context.[50] In its 2012 report on guardianship, the Commission recommended the adoption of a single civil capacity standard for guardianship laws (rather than the various standards currently used), similar to that adopted in the Mental Capacity Act 2005 (UK).[51] The test in the Mental Capacity Act also forms part of the definition of ‘informed consent’[52] for the purpose of the Mental Health Act 2014 (Vic).[53]

3.39 However, the Commission considers that in the specific context of unfitness to stand trial, the core elements of what constitutes unfitness should continue to be specified in legislation, as this provides a stronger contextual basis for assessing capacity. A more generic test is less useful and does not provide the same degree of guidance to experts in assessing an accused’s unfitness to stand trial, or to courts in making determinations of unfitness to stand trial.

Rationality

3.40 In the consultation paper the Commission considered whether an accused’s rationality should be taken into account in some way in a determination of unfitness to stand trial.

3.41 As discussed at [3.22], the current test is problematic when applied to an accused who has a mental illness and may have disordered or impaired mental processes as a result of delusions. For example, an accused who is delusional may be able to understand the trial process and instruct their legal practitioner, but their capacity to make decisions may be impaired by delusional beliefs. They may believe that the trial is part of a ‘benevolent divine plan and has no punitive purpose or effect’.[54] In Australia, the current test may already require that the relevant criteria are exercised rationally, but this has not been expressly stated.[55]

3.42 In contrast, the test in the United States requires that the accused have the ability to instruct a lawyer with a reasonable degree of rational understanding.[56] In Scotland, effective participation captures the notion of full or rational appreciation of the proceedings.[57] The South Australian test for unfitness to stand trial explicitly incorporates the requirement of rationality.[58] The New South Wales Law Reform Commission has recommended that the criteria for unfitness include the ability to use information as part of a rational decision-making process.[59] The Law Commission of England and Wales, on the other hand, did not propose that any new test be qualified with a requirement of rationality.[60]

3.43 The Commission has had regard to the relevant recommendations made by the Victorian Parliament Law Reform Committee in its Inquiry into Access to and Interaction with the Justice System by People with an Intellectual Disability and their Families and Carers.[61] The Committee recommended that the Victorian Government consider amending the CMIA to require the court, when considering unfitness to stand trial, to determine:

• the ability of the accused to understand or respond rationally to the charge, or

• the ability of the accused to exercise or to give rational instructions about the exercise of procedural rights.[62]

Views in submissions and consultations

3.44 There were mixed views in submissions and consultations on whether the test should consider the accused’s ability to make rational decisions or exercise some of the criteria for unfitness to stand trial rationally.

3.45 Those who supported a consideration of rationality observed that:

• It would provide more clarity in situations where delusional disorders are affecting a person’s understanding of the court process and their instructions to their lawyer.[63]

• The current test sets the threshold for determining unfitness too high.[64]

3.46 Those who did not support a change in this area were of the view that:

• The current criteria already implicitly consider rationality.[65]

• Rationality is difficult to define, assess clinically or otherwise apply in practice. It would introduce too much subjectivity.[66]

• More people with an intellectual disability or personality disorder could be found unfit to stand trial. This is undesirable given the potential for indefinite detention under the CMIA.[67]

3.47 The Victorian Equal Opportunity and Human Rights Commission cautioned that any change to the test should not unjustifiably limit an accused’s autonomy and their choice to make decisions, including ‘unwise’ decisions.[68] Jamie Walvisch submitted that the current criteria should include a consideration of the accused’s ability to understand the meaning of conviction and sentence.[69]

3.48 In the Commission’s consultation with Forensicare consultant psychiatrists, some participants thought that there was a need to address the problem of accused providing delusional instructions. However, participants generally did not agree that using the measure of ‘rationality’ was the way to achieve this.[70]

3.49 Some members of the Commission’s advisory committee were of the view that the accused should be able to undertake the relevant CMIA criteria meaningfully or rationally. However, these members did not express a strong view on whether either approach should be expressly adopted.[71]

The Commission’s conclusion

3.50 The Commission agrees that the current test for unfitness to stand trial does not adequately address situations where an accused’s mental processes are disordered or impaired as a result of delusions caused by a mental illness. This is largely due to the historical basis of the test. As Brookbanks has observed:

the fitness to plead rules have developed without proper regard for the distinctive characteristics and needs of the people whose very interests they are designed to protect.

As a consequence of this development, subsequent legislation in many jurisdictions also failed to distinguish intellectually disabled from insane offenders.[72]

3.51 The New South Wales Law Reform Commission observed that since the case of Eastman v The Queen,[73] it has become unclear whether the law requires an accused to be found unfit where they make decisions based on delusions.[74] In Victoria, while there do not seem to be major practical difficulties with the current test, addressing this issue will promote clarity in the law and consistency in expert assessments.

3.52 In the Commission’s view, the need to promote clarity and consistency should be balanced against the risk that revising the test will add to its complexity and import too much subjectivity. The Commission agrees that the measure of ‘rationality’ is susceptible to this risk. The Commission therefore proposes an alternative formulation that does not rely on rationality but that achieves the similar aim of ensuring that the accused is able to make ‘true choices’ concerning the crucial decisions in the trial that are not substantially prejudiced by their mental condition.[75]

3.53 The Commission recommends a test that considers:

• The accused’s ability to understand the actual significance of entering a plea, in addition to the ability to enter a plea—Under the current test for unfitness to stand trial, an accused could enter a plea without understanding its actual significance because of delusional beliefs or because of their impaired ability to understand. Reframing this criterion will clarify that the accused’s ability to enter a plea must be based on not just a factual understanding of what a plea is, but also on an understanding of its significance and implications. This must not be substantially prejudiced by their mental condition.

• The accused’s ability to communicate meaningful instructions to their legal practitioner—An accused could instruct their legal practitioner based on their delusional beliefs. This situation would not necessarily result in a finding of unfitness to stand trial under the current application of the test. At the Commission’s roundtable with clinicians on the CMIA and the Children’s Court, participants thought that addressing this issue with a requirement to give ‘meaningful’ instructions was clearer and was preferable to ‘rational’ instructions.[76] The Commission agrees with this view. Requiring an accused to ‘communicate’ rather than just ‘give’ instructions is also consistent with the Commission’s emphasis on the importance of communication with this cohort of people.[77] The Commission has recommended improvements to communication between accused with mental conditions and their legal representatives, as well as education on communication techniques for judicial officers presiding over CMIA matters.[78]

• The accused’s ability to decide whether to give evidence to support their case, and if they wish to give evidence, their ability to do so—At [3.37] above, the Commission discussed its recommendation on two additional criteria regarding the decision and the ability of the accused to give evidence. In the Commission’s view, qualifying this requirement so that the accused’s decision to give evidence and their ability to do so must be ‘to support their case’ will ensure that their decision to give evidence and their testimony is not prejudiced by delusional beliefs.

Removing the jury component of the Presser criteria

3.54 The consultation paper sought views on the existing criteria for unfitness to stand trial under the CMIA and whether any improvements could be made to these criteria. In particular, the Commission asked whether the second criterion of the test—the accused’s ability to ‘enter a plea to the charge’ and the accused’s ability to ‘exercise the right to challenge jurors or the jury’—was operating well in practice.

Views in submissions and consultations

3.55 The majority of submissions and consultations focussed on the requirement that the accused be able to exercise the right to challenge jurors or the jury (‘the jury component’). Submissions that addressed this issue and stakeholders who were consulted expressed support for splitting the requirement that the accused be able to enter a plea from the jury component. Some supported removing the jury component completely from the second criterion.

3.56 It is unclear whether splitting the second criterion into two separate criteria would make a difference in practice. In its submission, the Victorian Institute of Forensic Mental Health (Forensicare) noted that while it may be ‘neater’ to split the two components of the second criterion, this would have a negligible impact on the practical application of the test because the failure to meet either component (whether these are stated separately or together) deems an accused unfit to stand trial.[79] The Commission agrees with this submission and considers that the key issue is whether the ‘jury component’ should be removed entirely from the test.

3.57 Those who supported removing the jury component argued that:

• Jury selection may have been a more integral part of the trial at the time the unfitness to stand trial test was first developed.[80] However, counsel usually deals solely with juror challenges, without input by the accused. Jury selection is therefore no longer an issue that is fundamental to trials in Australia.[81]

• A trial would still be fair even if a represented accused did not understand their right to challenge jurors or the jury.[82]

• Removing the jury component would enable the test to be used in summary jurisdictions where juries do not determine criminal responsibility.[83]

3.58 Advisory committee members generally supported removing the jury component altogether or splitting it from the requirement that the accused have the ability to enter a plea.[84] It was thought that in practice the accused would make this decision based on their lawyers’ advice.

The Commission’s conclusion

3.59 The Commission agrees with the arguments to remove the jury component from the test completely. As discussed at [3.32], the Commission’s position is that an accused needs to be able to make the crucial decisions in the trial for them to be fit to stand trial. The Commission recognises that, in Victoria, challenges must be voiced by the accused unless there is a ‘very good reason’ to depart from this ‘usual practice’.[85] However, challenges to jurors, while properly a right of an accused and not counsel, are very substantially exercised by counsel on delegation from the accused, or are exercised by the accused in accordance with the advice of counsel. In these circumstances, the Commission considers that operationally, the decision to challenge jurors, important though it is, does not equate with the decision to plead or give evidence.

3.60 Further, as the Commission noted in its Jury Empanelment report, peremptory challenges are not necessarily, of themselves, required for procedural fairness. It has been recognised that aspects of the jury empanelment system can be modified or abolished by parliament.[86]

3.61 The Commission also recognises the value of having a test that is flexible enough to be applied in the Magistrates’ Court and the Children’s Court. The Commission’s recommended test therefore does not include the jury component.

The test in the Magistrates’ Court and the Children’s Court

Replacing ‘trial’ with ‘hearing’

3.62 In addition to removing the jury component from the test, the Commission has considered whether any other changes are needed to ensure that the test for unfitness to stand trial can be applied in the summary jurisdiction.

3.63 In the Commission’s roundtable on the extension of the CMIA to the Magistrates’ Court, participants were of the view that the reference to ‘trial’ in the test should be changed to another term because trials were not held in the Children’s Court or the Magistrates’ Court. Participants otherwise thought that the test was sufficiently flexible for the summary jurisdiction and that it was preferable to have the same test across jurisdictions so that magistrates would have precedent to draw on.

3.64 The Commission agrees with these views and recommends that references to ‘trial’ presently in the test for unfitness to stand trial be changed to ‘hearing’. The term ‘hearing’ is consistent with the process in place in the summary jurisdiction to determine criminal responsibility.

Whether the test should consider the length and complexity of the hearing

3.65 In the consultation paper the Commission considered whether the test for unfitness to stand trial should better reflect that some proceedings are more difficult than others to follow and whether the test should have regard to the individual proceedings faced by the accused. This has specific relevance to the Magistrates’ Court and the Children’s Court, where the hearing of a summary offence would be brief, easier to follow and demand a lower level of participation by the accused.

3.66 There was some support in submissions and consultations for including a consideration of the length and complexity of the particular hearing the accused will face in a test for unfitness to stand trial,[87] and no major practical difficulties were raised. Forensicare submitted that it was unnecessary to include such a consideration in the test as the complexity of the particular proceeding is already taken into account when considering the existing criteria.[88] The Commission agrees with this view. In Australia, there is already some recognition of the specific hearing the accused will be subject to in case law. In R v Gillard,[89] for example, the court held:

An accused who is not unfit for the purposes of a trial because there are a limited range of facts and issues, may well be unfit for the purposes of a long, complicated fraud trial. Much will depend upon the individual circumstances.[90]

3.67 Further, the Commission’s recommendation that the test refer to a ‘hearing’ in place of ‘trial’ should bring emphasis to the particular hearing the person will face in a determination of unfitness to stand trial.

3.68 The Commission therefore does not recommend that the test for unfitness to stand trial expressly include a consideration of the length and complexity of the hearing.

The new test for unfitness to stand trial

3.69 The Commission recommends that the proposed changes discussed above be adopted to create a new test for unfitness to stand trial.

3.70 The proposed test below aims to:

• ensure that an accused is only subject to the trial process where they are able to make the crucial decisions relevant to their trial

• clarify the law and promote consistency in expert assessments where an accused’s fitness to stand trial is affected by a delusional disorder

• ensure that the test is flexible enough to be adapted for use in the Magistrates’ Court and the Children’s Court.

Recommendation

15 Section 6(1) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) should be amended to provide that a person is unfit to stand trial for an offence if, because the person’s mental processes are disordered or impaired, the person is or, at some time during the hearing, will be:

(a) unable to understand the nature of the charge

(b) unable to understand the actual significance of entering a plea to the charge

(c) unable to enter a plea to the charge

(d) unable to understand the nature of the hearing (that it is an inquiry as to whether the person committed the offence)

(e) unable to follow the course of the hearing

(f) unable to understand the substantial effect of any evidence that may be given in support of the prosecution

(g) unable to decide whether to give evidence in support of his or her case

(h) unable to give evidence in support of his or her case, if he or she wishes to do so, or

(i) unable to communicate meaningful instructions to his or her legal practitioner.

Adapting the test when the accused wishes to plead guilty

3.71 In some cases, an accused may be able to understand the nature of the charge, enter a plea to the charge and meaningfully instruct their legal practitioner to that effect,[91] but they may not be able to understand the more complex or lengthy elements of the trial process. Where an accused in this situation wishes to plead guilty, the CMIA precludes that plea, and requires the person to be subject to the special hearing process to determine criminal responsibility. The CMIA requires the capacity to understand the trial process even though in that situation the trial is a hypothetical.

3.72 In the consultation paper, the Commission asked for views on whether there should be an exception to the unfitness to stand trial test when the accused wishes to plead guilty.

Views in submissions and consultations

3.73 Submissions that addressed this issue expressed differing views on whether the test for unfitness to stand trial should be adapted when an accused wishes to plead guilty.

3.74 Some thought that it was appropriate to adapt the test in these circumstances.[92] The Office of Public Prosecutions, for example, observed that in many cases it is not in the accused’s best interests to be found unfit to stand trial and placed on an indefinite supervision order, particularly for less serious offences.[93] Forensicare had a similar view, noting that adapting the test could provide a fairer outcome for accused.[94]

3.75 Others, however, expressed concern about providing an exception to the test when the accused wishes to plead guilty.[95] The Australian Psychological Society said that it would raise questions about the accused’s ability to provide informed consent at various stages of the trial process.[96] The Australian Clinical Psychology Association noted that accused who had difficulty understanding legal processes may see no other choice but to plead guilty to avoid going through the trial process.[97]

3.76 Some of the submissions that supported an adaptation of the test noted that any adaptation had to ensure that the accused truly understands the nature of the guilty plea.[98] The Office of Public Prosecutions, Victoria Legal Aid, Forensicare and Jamie Walvisch set out the circumstances in which the accused should be permitted to plead guilty.[99]

3.77 Advisory committee members held different views on this issue. On one hand, an adaptation of the test was thought to have difficulties, particularly for people with delusional disorders and young people. On the other hand, a view was expressed that some people currently under CMIA supervision orders had been denied participation in the usual criminal process even though they understood that what they had done was unlawful, had a strong prosecution case against them and could make the choice to plead guilty.[100]

The Commission’s conclusion

3.78 In the Commission’s view, where an accused has the capacity to make a particular decision, that decision should be given effect as far as possible. As the Commission noted in its report on guardianship, capacity is decision-specific.[101] The law must be flexible enough to accommodate different levels of capacity,[102] and by extension different levels of unfitness to stand trial.

3.79 The Commission has concluded that if an accused who has disordered or impaired mental processes wishes to plead guilty, they should be able to do so if certain factors are present.

3.80 However, the Commission is conscious of the risks involved in creating an exception to the test to accommodate an accused’s decision to plead guilty, such as those outlined in submissions. The Commission is also conscious of the tendency of accused to plead guilty to avoid the onerous CMIA regime.[103] This is discussed in greater detail in Chapter 5. The Commission considers that any exception to the test should contain safeguards to protect against these risks and to ensure that the guilty plea is reliable. As Bonnie has observed:

In the context of guilty pleas, the legal system has a compelling interest in assuring reliability of the admissions embedded in a plea entered by a person with mental disability, and in assuring that the defendant understands the essential nature of the rights being waived and the consequences of the plea.[104]

3.81 To address these concerns, the Commission’s recommendation allows the accused to plead guilty if they wish to do so, provided they can also satisfy criteria (developed from those suggested in submissions) as follows:

• understand the nature of the charge

• understand the nature of the hearing if they pleaded not guilty

• understand the significance of entering a plea of guilty and its consequences

• meaningfully communicate to their legal practitioner their decision to plead guilty

• follow the course of the plea and sentencing hearing that will follow a plea of guilty.

3.82 Clearly this exception to the test for unfitness to stand trial relies on the accused’s lawyer and ultimately the court, informed by expert opinion, being able to assess that they do in fact satisfy each of these elements. Recommendations the Commission has made on the training and accreditation of lawyers will support the ability of lawyers to make such an assessment (see Recommendations 10 and 11), as well as recommendations directed at the application of the test by experts (Recommendations 22 and 23). The judge or magistrate overseeing the plea will provide the ultimate layer of scrutiny.

3.83 It is critical that under this test the accused is properly represented. The Commission recommends that this exception should not apply if the accused does not have legal representation.

3.84 The recommendation below can be added to the CMIA as a new sub-section within section 6 to provide a separate set of criteria on which an assessment is made by experts to assist the court to determine whether the accused is ‘fit to plead guilty’. The recommended criteria have been drafted to be consistent, where possible, with the recommended criteria for ‘fitness to stand trial’.

Recommendation

16 The Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) should be amended to provide that:

(a) notwithstanding Recommendation 15, a person whose mental processes are disordered or impaired may enter a guilty plea to the charge if the person is:

(i) able to understand the nature of the charge

(ii) able to understand the actual significance of entering a plea of guilty to the charge (that it will waive the person’s right to a hearing and the opportunity to contest the charge and the consequences in terms of conviction and sentence)

(iii) able to enter a plea to the charge

(iv) able to understand the nature of the hearing if a plea of not guilty is entered (that it is an inquiry as to whether the person committed the offence)

(v) able to follow the course of the hearing that would follow if a plea of guilty was entered, and

(vi) able to communicate meaningful instructions to his or her legal practitioner regarding the decision to plead guilty.

(b) paragraph (a) does not apply if the accused is not legally represented.

Application of the test for unfitness to stand trial

Prevalence of issues of unfitness

3.85 As discussed in Chapter 2 at [2.32], the limited information available to the Commission suggests that issues of unfitness to stand trial may arise more frequently than the defence of mental impairment.

3.86 Of the 61 requests for reports received by Forensicare from the Office of Public Prosecutions in matters under the CMIA in 2012–13, 27 (44.3 per cent) were for assessments of unfitness to stand trial and the mental impairment defence. A further 18 (29.5 per cent) were for assessments of unfitness alone. Fifteen requests for reports were made for the mental impairment defence alone (24.6 per cent). In the first two quarters of the following year (2013–14), there were nine requests for reports on unfitness and mental impairment, nine for unfitness alone and seven requests for mental impairment alone.[105]

3.87 The approximate information available to the Commission on young people indicates that issues regarding unfitness also arise more often than the defence of mental impairment.[106]

Applying the test to young people

3.88 The supplementary terms of reference asked the Commission to consider whether the process for determining unfitness to stand trial should be adapted for use in the Children’s Court. In considering this, the Commission has examined the application of the test for unfitness to accused young people who appear in the Children’s Court (and in the higher courts).[107]

3.89 Currently in Victoria the same test for unfitness to stand trial applies to both young people and adults. This is also the case in New Zealand, Canada and the United Kingdom.

3.90 In the supplementary consultation paper, the Commission asked for views on whether:

• the test for unfitness to stand trial was appropriate to be applied to young people

• any modification was required if the test was to apply to young people.

Developmental factors and unfitness to stand trial

3.91 Cases involving young people in Victoria under the CMIA have tended to involve issues of unfitness due to an intellectual disability.[108]

3.92 Concerns have been expressed in other jurisdictions about the applicability of the test for unfitness to stand trial for young people. In particular, there is some suggestion that the current test for unfitness does not adequately take into account the developmental delays faced by many young people.[109]

3.93 The New South Wales Law Reform Commission in its review of Young People with Cognitive and Mental Health Impairments in the Criminal Justice System raised the question of whether the Presser criteria are suitable for young people:

Young people’s brains are still developing, with consequent differences in cognitive functioning compared with adults. As discussed … these developmental differences may be further complicated by the existence of a cognitive or mental health impairment, or an emerging impairment.[110]

3.94 This view was supported by a Queensland study that examined research that shows that executive functioning develops continually throughout childhood and adolescence.[111] The study found that some young people suffer from developmental delays, which may have an important impact on their ability to understand the trial process.[112] Further, while a young person may be able to understand what is being said to them in court, their decision-making capacity may be reduced compared to an adult.[113]

3.95 A New Zealand study pointed to research demonstrating that 30 per cent of young people aged between 11 and 13 years and 19 per cent aged between 14 and 15 years showed significant impairment in understanding or reasoning. This would place them at the equivalent level of an adult with a serious mental illness who would normally be declared unfit to stand trial.[114]

Views in submissions and consultations

3.96 In submissions and consultations, some people observed that many young people would be unfit to stand trial based on the current unfitness criteria, due to immaturity or their developmental stage, even without a mental illness or intellectual disability.[115] It was also noted that children and young people have varied developmental (physical, social and psychological) trajectories.[116]

3.97 The majority of those who addressed this issue were of the view that the test for unfitness to stand trial should not ‘simply mirror’ the criteria for adults.[117] However, it was also observed that the Presser criteria were generally suitable with some modification.[118]

3.98 The need for a consistent test for unfitness to stand trial across jurisdictions was also noted.[119]

3.99 A unifying theme to arise from submissions and consultations was that the test for unfitness to stand trial should take into account the developmental stage of a young person.[120] This was seen to have a significant impact on the young person’s unfitness. The Australian Psychological Society noted the importance of relying on the developmental level of the young person and not their chronological age:

chronological age is not an infallible predictor of a young person’s capacity to fully comprehend and participate in the legal process. The justice system therefore needs to be sufficiently flexible to be able to respond to young people in a manner that matches the individual developmental level of the young person in question.[121]

3.100 Other suggestions in submissions and consultations included:

• The test for unfitness to stand trial should consider modifications that can be made to the hearing and education that can be provided to enable the young person to reach the fitness threshold.[122] The Commission considers this suggestion for reform at [3.123]–[3.126] and [3.138]–[3.143].

• The test should include a consideration of decision-making capacity or effective participation.[123] The Commission’s discussion at [3.30]–[3.39] is also applicable to young people.

• The test should take into account the differences in the length and complexity of proceedings.[124] The Commission’s discussion at [3.65]–[3.68] also applies to young people.

• The test should consider the young person’s ability to understand what it means to enter a plea.[125] The test the Commission recommends now includes a requirement that the accused be able to understand the significance of entering a plea.

The Commission’s conclusion

3.101 The Commission agrees that there should be a consistent test across jurisdictions to avoid an artificial jurisdictional distinction being made when applying the test. It would not, for example, be desirable for there to be one test that applies to an accused who is 17 years of age who appears in the Children’s Court and another for a person of the same age who appears in the County Court.

3.102 Another reason is to avoid a distinction being made based on the chronological age of an accused. It was considered inappropriate for a different test to apply to an accused merely because of their chronological age given that this is not generally an accurate reflection of their developmental stage, particularly within the cohort of young people appearing in the criminal justice system. For example, an accused who is 18 years and 6 months could be at the same developmental stage as a 15-year-old. If there were different tests for unfitness based on age, then these two accused would be subject to different tests even though they may be at the same stage developmentally.

3.103 The Commission recognises the significant effect a young person’s developmental stage has on their unfitness to stand trial. Young people may fail to meet the current criteria for unfitness simply because of their stage of development or maturity. As the Australian Institute of Criminology (AIC) has concluded, ‘immaturity is a significant factor in shaping juveniles’ competence in court, irrespective of other influences’.[126]

3.104 The Commission agrees with submissions and consultations indicating that the test for unfitness to stand trial should be modified to take into account the developmental stage of a young person. The Commission recommends that in applying the test, the judge or magistrate be required to consider this factor.

3.105 The Commission otherwise agrees that the criteria in the test can be applied fairly to young people and is of the view that, as far as possible, the test should be consistent between jurisdictions and not dependent on chronological age.

Recommendation

17 Section 6 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) should be amended to add a requirement, separate to the criteria in section 6(1), that in determining whether a young person (a person who at the time of the hearing is under 21 years of age) is unfit to stand trial, the court must consider the developmental stage of that person.

Applying the test to optimise fitness to stand trial

3.106 The current process for determining unfitness to stand trial has been criticised because of the ‘possible danger of too readily dismissing the person’s capacity to comprehend’.[127] There are good reasons why measures to optimise an accused’s fitness to stand trial should play a greater role in court processes. This was discussed in the Queensland Court of Appeal decision in R v M,[128] an appeal from Re IMM[129] where the Queensland Mental Health Court found that a person with an intellectual disability was fit to be tried because the trial court could adapt its procedures sufficiently to accommodate his condition:

To deny a person like [the accused] a trial would, having regard to both his interest in responding to the charge and possibly having his name cleared (while acknowledging of course that he bears no onus), and the interest of the community in ensuring that criminal charges are properly pursued, be frankly inconsistent with the rule of law, essentially because it would be discriminatory. Contemporary courts are sensitive to the varying needs of those who come before them.[130]

3.107 The Law Commission of England and Wales expressed the view that ‘special measures’ should play a greater role in the test for unfitness to stand trial.[131] Its view is that in determining whether the accused has decision-making capacity, consideration should be given to the extent to which special measures could assist the accused to participate in their trial.[132] It also considered whether expert assessments of unfitness to stand trial could be supplemented with suggestions on how the accused can be assisted during the trial in order for it to proceed fairly.[133]

3.108 In Australia, there is some opportunity for courts to consider the availability of measures to optimise an accused’s fitness to stand trial. In Ngatayi v The Queen,[134] for example, the High Court held that whether an accused is provided with an interpreter or assisted by counsel would be a factor in determining whether someone was able to understand the proceedings.

3.109 In the consultation paper the Commission discussed the following ways to optimise fitness to stand trial:

• providing adjustments in court to accused to enable them to participate more fully in proceedings (‘support measures’)

• providing education for an accused during the adjournment period following a temporary finding of unfitness to enable them to participate more fully in proceedings.

3.110 Both options could be particularly beneficial for improving the fitness to stand trial of accused with an intellectual disability and young people.

Outcomes in cases where unfitness to stand trial is raised

3.111 The limited information available to the Commission suggests that when an issue of unfitness to stand trial is raised, it is likely that the person will be found to be unfit.

3.112 Analysis of the 65 judgments available in the 159 CMIA cases dealt with in the higher courts over a 12-year period from 2000–01 to 2011–12 indicates that the issue of unfitness to stand trial was raised in 19 cases. In 16 of these 19 cases (84.2 per cent) the accused was found unfit to stand trial.

3.113 There was insufficient information from which to draw any conclusions about how common it is for young people to be found unfit to stand trial from those who raised the issue. However, the data indicated that there was a range of outcomes (detailed in Table 10 in Appendix D), including being found fit to stand trial, pleading guilty, being found unfit to stand trial and charges being dismissed or withdrawn, and being placed on a non-custodial supervision order.

In-court support measures to optimise fitness to stand trial

3.114 The Commission sought views on whether support measures should be taken into consideration when determining unfitness to stand trial and whether accused should be provided with more support in court. The Commission highlighted potential support measures including:

• using a support person such as a ‘communication assistant’ or ‘intermediary’ who can interpret what is being said in court to the accused in a way that they can understand

• improving communication methods in court, for example, by using short sentences or providing hearing loops to people with a hearing impairment.

Views in submissions and consultations

3.115 The Commission also asked about the appropriate role of support people, including the scope of their legal responsibility, and the qualifications they should have.

3.116 Submissions that addressed this issue and stakeholders who were consulted agreed that the law should recognise that fitness to stand trial can be enhanced if appropriate support is provided in court, and that accused with mental conditions should be provided with more support in court.[135] It was noted that giving support measures a greater role in the process for determining unfitness to stand trial would have the following benefits:

• It would ensure that support measures are considered in every investigation into unfitness to stand trial and would encourage the use of support measures in individual cases.[136]

• It would encourage experts to take support measures into account in their assessments.[137]

• It would ensure that the criteria are applied to the hearing being contemplated.[138]

• The test for unfitness would not capture a broader class of individuals than is necessary.[139]

• It is humane.[140]

• It would promote more meaningful participation by the accused.[141]

• It upholds the right to equality, as well as the right to a fair hearing and access to justice in the Charter of Human Rights and Responsibilities Act 2006 (Vic) (‘Charter’) and the Convention on the Rights of Persons with Disabilities.[142]

3.117 There were also some specific suggestions that experts should assess what type of support may assist an accused to participate in the trial.[143]

3.118 In relation to support measures for young people, it was recognised by legal practitioners that the Children’s Court generally operates consistently with section 522 of the Children, Youth and Families Act 2005 (Vic).[144] This provision requires the court to take steps to ensure proceedings are comprehensible to children and ensure that the child understands the nature and implications of the proceeding. Practitioners noted that those who represented young people in the Children’s Court were experienced in matters involving young people and would use a more suitable approach with them.[145] Victoria Police prosecutors provided examples of modifications that are currently made to proceedings, including addressing accused young people by their first name in court and encouraging prosecutors not to wear uniforms.[146]

3.119 However, it was noted that while some regional courts and higher courts did modify proceedings to suit young people, this practice was less common in those courts.[147] There was also support for a requirement to use support measures in CMIA matters specifically.[148]

3.120 Submissions highlighted the need for a specialised approach for young people in terms of support measures. The Australian Clinical Psychology Association observed that children required more help than adults in court and younger children needed more assistance and support than older children. The Victorian Equal Opportunity and Human Rights Commission referred to the Charter on the right of children to have ‘a procedure that takes account of his or her age’.[149]

3.121 It was suggested that the Commission should consider the use of support people such as carers, communication assistants or intermediaries to interpret for adults and young people what is said in court.[150] However, some clinicians at the Commission’s roundtable on the CMIA and the Children’s Court expressed concerns about such a role, in terms of how it would operate in practice as well as whether it could give rise to ethical problems regarding confidentiality and possible disclosures. Those who expressed such concerns noted that the role of the support person (whether they are impartial or an advocate) and who would fill that role (an expert or someone familiar to the young person) should be clearly defined.[151]

3.122 Submissions and consultations also suggested:

• improvements to communication methods in court—for example, using more visual aids[152] and making questions asked in court and other discussions in court easier to understand.[153]

• modifications to court procedure—for example, introducing shorter sessions[154] or reducing the formality or intimidation of proceedings.[155]

The Commission’s conclusion

3.123 The Commission recognises that unfitness to stand trial is support-dependent. As the Commission observed in its report on guardianship,[156] a person’s capacity depends on the nature of their disability and the novelty or complexity of the situation. In the Commission’s view, the law should accommodate the varying abilities and needs of accused who may be unfit to stand trial, to the greatest extent possible.

3.124 The importance of support measures in the unfitness to stand trial process was one of the strongest themes to come out of the Commission’s review of the CMIA. In the Commission’s view, support measures should be considered in determinations of unfitness with the aim of optimising an accused’s fitness where they might otherwise be unfit. For an accused, this provides them with the opportunity to participate in their trial. It also enables a full trial of the accused where this is fair and this is in the public interest.

3.125 Although it is currently open to courts and experts to consider the availability of support measures in determinations of unfitness to stand trial, it is evident from the input received that these are not necessarily considered, provided or available in all cases under the CMIA. The Commission has formed the view that it is necessary to expressly provide for the consideration of support measures in the test to ensure that such measures are considered in every investigation into unfitness and used where appropriate and available.[157]

3.126 In developing this recommendation, the Commission has adapted the wording used in the New South Wales Law Reform Commission’s recommended test for unfitness to stand trial.

Recommendation

18 Section 6 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) should be amended to add a requirement, separate to the criteria in section 6(1), that in determining whether a person is unfit to stand trial, the court must consider the extent to which modifications can be made to the hearing process to assist the accused to become fit to stand trial. Modifications include:

(a) whether a support person can assist the person’s understanding of the trial

(b) whether more appropriate communication methods can be used in court, and

(c) whether court procedure can be appropriately modified.

3.127 To support Recommendation 18, the Commission also recommends that these in-court support measures be made available.

3.128 The Commission considers that any support person appointed should have specialist skills in mental health or disability, and with young people, have specialist knowledge of child development. The United Kingdom may provide a helpful model that Victoria can refer to. In the United Kingdom, registered intermediaries have been introduced to help vulnerable witnesses and accused in communication.[158] Intermediaries take on a role that goes beyond that of an interpreter.[159] Generally, the intermediary will spend time developing a relationship with the individual while assessing their communication needs.[160] The intermediary will advise the court and lawyers about changes to procedure that may be necessary, and the type of language that should be used to communicate with the accused.[161] The intermediary will also provide support during the trial by interpreting responses.[162]

3.129 In its Inquiry into Access to and Interaction with the Justice System by People with an Intellectual Disability and their Families and Carers, the Victorian Parliament Law Reform Committee recommended that the Victorian Government consider establishing a witness intermediary scheme modelled on the United Kingdom scheme to provide support for people with an intellectual disability or other cognitive impairment.

3.130 In the Commission’s view, it is essential that the operational, legal and ethical role of support people, such as intermediaries, be defined with clarity. Such people should not substitute their views for those of the accused, or the accused’s lawyers, and should not seek to influence the accused.

3.131 While there are many recognised benefits with having support people, there are also concerns about how impartial they can be, especially if they are required to establish a relationship with the accused before the trial.[163] To counter any problems that may occur when a support person interprets a witness’s answer, one approach is to have the support person interpret the questions to the witness but not translate the answer. This approach was recommended by the Law Commission of New Zealand,[164] and is currently used in Ireland.[165] The Commission recommends that consideration be given to the appropriate scope of support people, and in particular registered intermediaries, in Victoria.

3.132 The Commission considers that the education and training it recommends for lawyers and the judiciary under Recommendations 10, 11 and 13 will encourage the use of more appropriate communication methods in court and modifications to court procedure.

3.133 In addition, courts could introduce practice notes to support the use of these measures. The Practice Direction on criminal procedure rules applying in the United Kingdom Crown and Magistrates’ Courts, for example, lists support measures that should be implemented when conducting trials involving young people.[166] These are discussed in more detail at [6.118] in Chapter 6.

Recommendation

19 To support Recommendation 18, there should be more support measures available in the court process to enable a court to modify proceedings and to assist an accused to become fit to participate in the hearing. For example:

(a) the introduction of a formal support person scheme, similar to intermediary schemes that operate in other jurisdictions, and

(b) the development and use of practice notes or practice directions in the Supreme Court, County Court, Magistrates’ Court and Children’s Court to promote the use of support measures for accused with a mental illness, intellectual disability or other cognitive impairment in court.

Education programs to optimise fitness to stand trial during the adjournment period following a temporary finding of unfitness

3.134 If a jury finds the accused unfit to stand trial, the judge must determine whether that person is likely to become fit to stand trial within 12 months. If the judge determines that the accused is likely to become fit (‘temporary finding of unfitness’) and they do become fit after a period of adjournment, the trial will proceed. If the judge determines that the accused is not likely to become fit within 12 months, or remains unfit after the period of adjournment (‘permanent finding of unfitness’), a special hearing must be conducted before a jury to determine whether the accused is not guilty, not guilty because of mental impairment or committed the offence charged.

Views in submissions and consultations

3.135 Some submissions and people consulted supported the provision of education to optimise fitness to stand trial.[167] It was noted that:

• This is a humane option that may ultimately enable the accused to participate in their trial.[168]

• The finding that an accused cannot participate in their own trial is a serious one and therefore there is a responsibility to ensure that their ability to do so is maximised through education and treatment.[169]

3.136 Participants in the Commission’s clinician roundtable on the CMIA and the Children’s Court thought that it was important to distinguish between young people who could be fit to stand trial given the appropriate education, and those who would be unfit regardless.[170]

3.137 Some members of the advisory committee supported measures to provide education to optimise the fitness of people who had the capability to become fit and thought that this requirement should be enforceable through the CMIA.[171]

The Commission’s conclusion

3.138 Consistent with the Commission’s reasoning on the role of support measures, the law should accommodate the varying abilities and needs of accused who may be unfit to stand trial to the greatest extent possible. The Commission considers that an education program could increase the extent to which an accused can participate in their own trial and therefore promotes an accused’s right to a fair hearing and to equality before the law.

3.139 A number of jurisdictions in the United States have examples of such programs (often referred to as ‘competency training’ or ‘competency restoration’). These are generally conducted in psychiatric hospitals, in an outpatient or community-based service or are jail-based.[172] The programs are designed to educate accused to understand the nature of the charge, the roles of court staff, the nature of legal proceedings and so on.[173] The programs can be conducted by clinicians, including psychologists, social workers and case managers.[174] One particular program is based on the ‘Slater Method’ which is a ‘formal competency tool designed for persons with intellectual disabilities’.[175]

3.140 There are also specialised competency programs for young people. Virginia, for example, has introduced the Virginia Juvenile Competency Program.[176] It uses an interactive CD-ROM, a workbook, videos and flash cards with games and exercises designed for each young person based on their needs.[177]

3.141 However, it will be important to consider the feasibility and effectiveness of education programs. In California, for example, there is a waitlist that averages between 200 and 300 individuals each month for competency restoration constrained by the ‘physical capacity of these facilities and the state’s ability to hire sufficient staff’.[178] If the program is not adequately resourced, there is also a risk that accused will be detained for longer periods of time while waiting for a place in the program.

3.142 It will also be important to develop a program that is effective. One study in Florida found that 21 per cent of accused with an intellectual disability became competent after undergoing the program between 1977 and 1991.[179] In a more recent study, 56 per cent of accused who completed the program were found to be competent.[180] For young people, Viljoen and Grisso have observed that the likelihood of success varies depending on the type of impairment.[181] Success also depends on the suitability of the education program to the young person and the existence of a consistent relationship with trained counsellors.[182] Decisional skills may be particularly difficult to teach because they require an ability to weigh risks and the long-term consequences of options.[183]

3.143 The Commission recommends that the Victorian Government consider introducing an education program to enhance the accused’s ability to be found fit to stand trial for both adults and young people. The Commission considers that an education program to assist accused adults and accused young people to become fit to stand trial is a valuable initiative, provided a program that is adequately resourced and sufficiently effective can be developed. This recommendation also ties in with the recommendations made by the Commission in Chapter 6 on the model for the operation of the CMIA in the Children’s Court.

Implementation of a program should be considered as part of the case worker program in the Children’s Court model.[184] A specialised approach has been recommended to provide specialised support to young people as part of the operation of the CMIA in that jurisdiction.

Recommendation

20 The Victorian Government should consider introducing an education program to enhance the ability of accused adults and accused young people to become fit to stand trial.

Treatment and services to optimise fitness to stand trial during the adjournment period following a temporary finding of unfitness

3.144 Support measures in court and education programs are likely to be more effective in optimising the fitness to stand trial of people with an intellectual disability, and less effective for people with a mental illness where the focus is on the treatment of the mental condition to restore fitness. This raises the question of whether the adjournment period can be better used to optimise the fitness of people with a mental illness.

Views in submissions and consultations

3.145 In consultations forensic clinicians expressed the view that the period of adjournment following a temporary finding of unfitness should be used to the fullest extent, given the long-term and serious consequences for people who come under the CMIA. It was suggested that there should be intensive or optimal efforts during the adjournment period to treat the person to assist them to become fit to stand trial.[185]

3.146 Another suggestion made in consultations was that two independent psychiatrists should be consulted before an accused is found permanently unfit, given the serious implications of this decision.[186]

The Commission’s conclusion

3.147 The Commission agrees with this view and considers that the best way to achieve this would be to introduce requirements on the court in relation to the adjournment period following a temporary finding of unfitness to stand trial.

3.148 After the adjournment period following a temporary finding of unfitness to stand trial, if a real and substantial question is raised again, the judge must either:

• extend the period of adjournment for a further period (as long as the entire period does not exceed 12 months), or

• proceed to hold a special hearing under Part 3 of the CMIA within three months.[187]

3.149 The Commission recommends a requirement that the court must only proceed to hold a special hearing if it is satisfied that the accused, having regard to the education, treatment and services received, is not fit to stand trial. To support this recommendation, Recommendation 22 below proposes that assessments of unfitness to stand trial should include the measures (in terms of education, treatment or services) that would assist the accused to be fit to stand trial. The Commission also recommends that an expert advisory group consider whether legislative or other requirements should be introduced to require the application of the process in Recommendation 22 (Recommendation 23).

3.150 The Commission also makes a recommendation in relation to the provisions governing the abridgement of the adjournment period after a temporary finding of unfitness. During this period, at any time, the accused or the Director of Public Prosecutions may apply to the court for an order that the court proceed to a special hearing if they are of the opinion that the accused will not become fit to stand trial by the end of the 12-month period. This application must be accompanied by a report on the mental condition of the accused by a registered medical practitioner or a registered psychologist.[188] The Commission recommends a requirement that such a report on the mental condition of the accused should:

• expressly refer to the education, treatment and services recommended in any report on the accused’s unfitness to stand trial to assist the accused in becoming fit

• detail the education, treatment and services that the accused has received during the adjournment period.

3.151 On such an application, if the court is satisfied that the accused will not become fit to stand trial within 12 months after the finding of unfitness, an order must be made for the court to proceed to hold a special hearing.[189] The Commission recommends that this should not occur unless the court is satisfied that, having regard to the education, treatment and services received, the accused will not become fit to stand trial by the end of the 12 months after the finding of unfitness.

3.152 In the Commission’s view, these requirements will create a greater impetus to optimise the treatment of the accused during the adjournment period and also ensure that there is accountability for how that period is used.

Recommendation

21 The following amendments should be made to the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic):

(a) Section 14(2)(b) should be amended so that the judge must only proceed to hold a special hearing under Part 3 within three months if satisfied that the accused, having regard to the education, treatment and services received, is not fit to stand trial.

(b) Section 13(2) should be amended so that the report on the mental condition of the accused should contain information on:

(i) the education, treatment and services recommended in any report on the accused’s unfitness to stand trial to assist the accused in becoming fit to stand trial, and

(ii) the education, treatment and services the accused received during the period of adjournment.

(c) Section 13(3)(c) should be amended so that the judge must be satisfied that the accused, having regard to the education, treatment and services received, will not become fit to stand trial by the end of the period of 12 months after the finding of unfitness.

Assessment of unfitness to stand trial by experts

Processes for applying the new tests for unfitness

3.153 The Commission’s recommendations (15–21) in relation to the test for unfitness to stand trial have broader implications for the process to be followed by experts in conducting assessments of unfitness. The recommendations propose changes to the way in which unfitness to stand trial is assessed and introduce new requirements for the court in various stages of the investigation of unfitness.

3.154 Some members of the Commission’s advisory committee suggested a two-stage process for expert assessments. Based on their advice, the Commission has set out below the process that should be followed in an assessment for the purposes of an investigation of unfitness under the recommended changes. This can be used as a basis for the work to be conducted by the advisory group that the Commission recommends be established to examine potential improvements to the application of the test by experts (see Recommendation 23 below).

3.155 This process can also be applied as part of the expert assessment conducted following an assessment order in the Children’s Court, discussed in more detail in Chapter 6 at [6.132]–[6.141].

Recommendation

22 The following process should be followed to support the Commission’s recommendations on unfitness to stand trial:

(a) In an examination of an accused by a registered medical practitioner or a registered psychologist on whether the accused is unfit to stand trial under the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic), the assessment should include:

(i) whether the accused is unfit to stand trial

(ii) if unfit to stand trial, whether or not the accused is likely to become fit to stand trial within a particular period and any measures (education, treatment or services) that would assist the accused to become fit to stand trial, and

(iii) if unfit to stand trial, the extent to which modifications can be made to the hearing process to assist the accused to become fit to stand trial.

(b) If requested, the assessment should also consider whether the accused is fit to plead guilty.

(c) As part of any assessment of unfitness to stand trial of a young person, the assessment should consider the developmental stage of the person.

(d) Upon consideration of the assessment, the court may proceed to determine whether the accused is unfit to stand trial, having regard to the extent to which modifications can appropriately be made to the hearing process to assist the accused to become fit to stand trial.

(e) If the accused is found fit to stand trial, the hearing should commence or resume in accordance with usual criminal procedures and with any appropriate modifications recommended in the assessment to assist the accused to become fit to stand trial.

(f) If the accused is found unfit to stand trial, the court may adjourn the matter for a period specified under section 11(4)(b) to allow the accused to become fit to stand trial, having regard to any measures recommended (education, treatment or services) that would assist the accused to become fit to stand trial.

(g) Following the period specified under section 11(4)(b) or in support of an application for an abridgment of the period under section 13 (as amended by Recommendation 21(b)), another examination of the accused by a registered medical practitioner or a registered psychologist should be conducted on the accused’s unfitness to stand trial.

(h) Any request or order for an assessment on whether the accused is unfit to stand trial should specify the matters the registered medical practitioner or the registered psychologist should consider.

Improving the application of the test by experts

3.156 In the consultation paper the Commission noted that the lack of clarity in some of the Presser criteria may cause problems for expert assessments of unfitness to stand trial. The lack of clarity could result in the inconsistent application of the criteria when determining the ‘cut-off point’ on the fitness continuum where it becomes fair that the accused stands trial.[190] The recommendations made above in relation to the test should make it easier for experts to apply. However, the Commission’s review identified other ways in which expert assessments can be improved.

Views in submissions and consultations

3.157 There was general recognition of the expertise and objectivity of experts on issues of unfitness.[191] The Criminal Bar Association, for example, observed that ‘They are on the whole comprehensive and well-targeted to the needs of the case’.[192]

3.158 It is also important to recognise the difficult task faced by experts in assessing unfitness to stand trial that involves subjective judgments about an accused’s functional abilities.[193]

3.159 Submissions and consultations noted problems in relation to assessments of unfitness to stand trial.[194] These included:

• discrepancies in experts’ training and expertise[195]

• reports sometimes lacking a forensic direction or familiarity with CMIA legal concepts[196]

• assessments conducted inappropriately (for example, questions not communicated effectively to people with an intellectual disability or in a culturally appropriate manner)[197]

• a small pool of experts, which could compromise objectivity.[198]

3.160 Similar concerns were expressed in relation to unfitness assessments of young people. For example, staff of the Department of Human Services informed the Commission that there is little or no guidance for determining whether a person with a cognitive impairment is unfit.[199] In these circumstances, it is difficult to disentangle what could be an issue of unfitness, development or disability.[200] Further, it was noted by staff of the Department of Human Services that there may be complexities in determining the ability of a young person to stand trial in view of developmental considerations.[201] It was also noted that approaches to communication with a young person are a key consideration in assessing unfitness to stand trial.[202]

3.161 Suggestions to improve expert assessments of unfitness to stand trial included:

• Unfitness assessments should be conducted by a multi-disciplinary specialised team of psychologists, psychiatrists and speech pathologists.[203] For young people, the expert should also have appropriate specialist skills in assessing young people.[204]

• There should be careful regulation of experts who assess unfitness in terms of qualifications and expertise through registration or accreditation of their competency to conduct these assessments.[205] Where the assessment concerns a young person, the expert should have demonstrated experience with young people.[206]

• There should be clearer guidance to experts about the test for unfitness. This could be achieved through the development of best practice guidelines on what should be included in a report, or through training.[207]

• A component of every assessment should be standardised.[208] For example, there should be standard information that should be included as part of every report. At the Commission’s roundtable with clinicians, it was noted that this would strike a balance between ensuring there is consistency between reports but also allowing for clinical discretion.

• Assessments should be conducted using appropriate communication techniques.[209] The Commission’s consultations with the Office of the Senior Practitioner and SCOPE highlighted the importance of effective communication techniques in assessments of unfitness.

The Commission’s conclusion

3.162 The Commission recognises that expert assessments form the evidentiary foundation of findings of unfitness to stand trial. In the Commission’s view, changes should be made to address unnecessary variability and to ensure the fairness and accuracy of expert assessments of unfitness to stand trial. As Freckelton has observed:

given that determinations have to be made about accused persons’ fitness to stand trial and given that those decisions are significantly influenced by expert evidence from psychiatrists and psychologists, it is important to reduce subjectivity and arbitrariness in the assessment process so far as that is possible by the provision of clear guidelines for what constitutes unfitness.[210]

3.163 The Commission considers that experts themselves are the best people to determine the changes that need to be introduced to address unnecessary variability and to ensure the fairness and accuracy of assessments of unfitness to stand trial. Experts are also best placed to determine how any changes should be implemented.[211] The Commission therefore recommends that the Victorian Government establish an expert advisory group to determine how best to resolve the issues outlined above.

Recommendation

23 The Victorian Government should establish an expert advisory group to determine:

(a) who should conduct assessments of unfitness to stand trial

(b) whether the group of people identified under paragraph (a) should be registered or accredited by a professional body, and if so, the requirements for registration or accreditation

(c) whether guidelines should be developed or experts should undergo training on applying the test for unfitness to stand trial, and if so, the content of the guidelines or training

(d) whether assessments should be standardised to a greater extent and the extent to which these should be standardised

(e) whether legislative or other requirements should be introduced to require the application of the process in Recommendation 22, and

(f) how to promote better communication techniques in the conduct of assessments.

Cost implications

3.164 Some of the Commission’s recommendations on the test for unfitness to stand trial may have cost implications.

3.165 The Commission’s additions to the criteria add factors on which an accused must be assessed, which may increase the complexity of assessments and possibly the resources or time required to conduct them.

3.166 The recommendations that have the most significant cost implications are those that contemplate the introduction of a formal support person scheme for providing support in court and an education program to optimise the fitness of accused adults and accused young people. It has not been possible for the Commission to quantify the cost implications of these recommendations in any detail due to the need for more exploration and research to be done by the Victorian Government prior to them being established. Recommendation 19, which suggests the courts introduce practice notes to promote the use of support measures, will also have a small cost implication for the courts to develop and publish such material.

3.167 However, the costs incurred to establish and resource such programs and the work to provide support and education to optimise the fitness of accused may be offset by the costs saved if the measures to optimise fitness are successful and fewer people are found unfit to stand trial. A person who is fit will be dealt with via the usual criminal process to determine their criminal responsibility. If found guilty of the offence, the person is liable to be convicted and sentenced, in almost all cases a sentence with a definite period. This can be compared with a person whose conduct is proved on the evidence available after being found unfit to stand trial. If declared liable to supervision under the CMIA in the higher courts, they will be placed on an indefinite supervision order. Thus, there are costs that will be saved where accused are not required to go through the specialised processes under the CMIA and be subject to longer periods of supervision under an indefinite CMIA order, compared with a finite sentencing order. The recommendation made by the Commission to allow an accused to be found ‘fit to plead guilty’ may also contribute to these cost savings.

3.168 Due to the very complex supervision arrangements under the CMIA, Forensicare and the Department of Human Services were not able to provide comprehensive information to the Commission to enable a proper analysis of the costs of supervision under the CMIA, compared with supervision under some form of sentence, which may be the result if an accused was fit to stand trial or plead to a charge and subsequently found guilty and sentenced. Forensicare advised the Commission that it costs $588.83 per day (approximately $214,923 per year) per forensic patient for supervision and treatment in the high-secure custodial setting at Thomas Embling Hospital.[212] This can be compared with the cost per Victorian prisoner in 2012–13 of $270.12 per day (approximately $98,594 per year).[213] It costs significantly more for the custodial supervision of young people—the cost per day, per young person subject to detention-based supervision on an average day in Victoria in 2012–13 was $1,109.69 (approximately $405,037 per year).[214]

3.169 It is clear that it costs less to detain a person in prison than it does in a secure mental health hospital. The measures recommended by the Commission to optimise the fitness of accused—where appropriate and in accordance with their human rights—could therefore have a long term cost-saving effect in those cases where a person has been assisted or restored to fitness to participate in the criminal justice system.

3.170 Recommendation 23, regarding the establishment of an expert advisory committee to make improvements to the application of the unfitness test by experts, will also have cost implications in the resourcing of such a group. However, in the Commission’s view, these costs should be offset by improvements in the way that unfitness assessments are conducted, consistent with the Commission’s reform aims that fitness be optimised where appropriate through the production of high quality reports and fuller consideration of the measures that can be used by courts to optimise fitness.


  1. Arlie Loughnan, Manifest Madness: Mental Incapacity in Criminal Law (Oxford University Press, 1st ed, 2012) 67.

  2. R A Duff, Trials and Punishments (Cambridge University Press, 1986) 119.

  3. Richard J Bonnie, ‘The Competence of Criminal Defendants: A Theoretical Reformulation’ (1992) 10(3) Behavioural Sciences and the Law 291, 295.

  4. R v Cumming [2010] 2 NZLR 433, 441.

  5. Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) s 7(1).

  6. For example, in referring to the law prior to the CMIA, quoting a section of the CMIA which uses the expression ‘the question of a person’s fitness to stand trial’ or decisions of courts which use that expression.

  7. The term ‘young people’ is used as a general term in this paper to refer to individuals who qualify to be dealt with in the Children’s Court or under special provisions that apply to ‘children’ (aged under 18 years) and ‘young offenders’ (aged 19 to 20 years) in the Children, Youth and Families Act 2005 (Vic) and the Sentencing Act 1991 (Vic). When referring to specific provisions or legislation, the terms ‘children’ or ‘young offenders’ will be used to describe individuals.

  8. (1831) 1 Lewin 62; 168 ER 960.

  9. (1836) 7 C&P 303, 304; 173 ER 135.

  10. Ibid.

  11. [1958] VR 45.

  12. Ibid 48.

  13. Victoria, Parliamentary Debates, Legislative Assembly, 18 September 1997, 187 (Jan Wade, Attorney-General).

  14. Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) s 6.

  15. Ibid s 7(1).

  16. Ibid ss 7(2)–(3).

  17. Submission 8 (Office of Public Prosecutions). Consultation 21 (Consultant psychiatrists, Forensicare).

  18. Submissions 4 (The Australian Clinical Psychology Association); 11 (Jamie Walvisch); 19 (Forensicare). Consultation 26 (Office of the Chief Psychiatrist and Legal Branch, Department of Health).

  19. Submissions 6 (Associate Professor Andrew Carroll); 16 (Australian Psychological Society).

  20. Submission 6 (Associate Professor Andrew Carroll).

  21. The Commission notes that in its guardianship reference, it recommended a new definition for ‘disability’ in the assessment of capacity. The Commission has taken a different position in relation to the test for unfitness to stand trial because of the views it received in submissions and consultations. Further, unlike the CMIA, the Guardianship and Administration Act 1986 (Vic) had an existing definition of ‘disability’.

  22. Advisory committee (meeting 1). For example, a severe urinary tract infection could result in fever and hallucinations which could affect an accused’s capacity.

  23. Law Commission (England and Wales), Unfitness to Plead, Consultation Paper No 197 (2012) 27–32.

  24. Ibid. See also, Lucy Scott-Moncrieff and Guy Vassall-Adams, ‘Yawning Gap: Capacity and Fitness to Plead’ (October 2006) Counsel 14.

  25. See, eg, Law Commission (England and Wales), above n 23, 51–66; W J Brookbanks and R D Mackay, ‘Decisional Competence and “Best Interests”: Establishing the Threshold for Fitness to Stand Trial’ (2010) 12(2) Otago Law Review 265; New South Wales Law Reform Commission, People with Cognitive and Mental Health Impairments in the Criminal Justice System: Criminal Responsibility and Consequences, Consultation Paper No 6 (2010) 7–12.

  26. Warren J Brookbanks, ‘Fitness to Plead and the Intellectually Disabled Offender’ (1994) 1(2) Psychiatry, Psychology and Law 171, 173–4.

  27. Brookbanks and Mackay, above n 25, 271.

  28. Warren Brookbanks and Jeremy Skipworth, ‘Fitness to Plead’ in Warren Brookbanks and Sandy Simpson (eds) Psychiatry and the Law (LexisNexis New Zealand, 2007) 169.

  29. Law Commission (England and Wales), above n 23, 62; Law Commission (England and Wales), Unfitness to Plead, Issues Paper (2014) 11–12 .

  30. Ibid 39.

  31. New South Wales Law Reform Commission, People with Cognitive and Mental Health Impairments in the Criminal Justice System: Criminal Responsibility and Consequences, Report No 138 (2013) 31–2.

  32. Scottish Law Commission, Report on Insanity and Diminished Responsibility, Report No 195 (2004) 48; New South Wales Law Reform Commission, above n 25, 9–10.

  33. New South Wales Law Reform Commission, above n 25, 10.

  34. Submissions 4 (The Australian Clinical Psychology Association); 11 (Jamie Walvisch).

  35. Submission 16 (Australian Psychological Society).

  36. As discussed in the consultation paper, one of the justifications for the requirement that an accused be fit to stand trial is so the accused is able to form a link between their alleged crime and their trial or punishment and be accountable for their actions. See also, Bonnie, above n 3, 295.

  37. Submission 11 (Jamie Walvisch).

  38. Submission 18 (Victoria Legal Aid).

  39. Submissions 8 (Office of Public Prosecutions); 19 (Forensicare).

  40. Submission 19 (Forensicare).

  41. Submission 8 (Office of Public Prosecutions). Consultation 21 (Consultant psychiatrists, Forensicare).

  42. Submission 19 (Forensicare). Consultation 21 (Consultant psychiatrists, Forensicare).

  43. Submission 8 (Office of Public Prosecutions).

  44. Advisory committee (meeting 1); (meeting 2a); (meeting 2b).

  45. R v Cumming [2010] 2 NZLR 433, 441. Bonnie, above n 3, 295.

  46. Law Commission (England and Wales), Unfitness to Plead, Analysis of Responses (2013) 7–8.

  47. Faisal Mudathikundan, Oriana Chao and Andrew Forrester, ‘Mental Health and Fitness to Plead Proposals in England and Wales’ (2014) 37(2) International Journal of Law and Psychiatry 6.

  48. Timothy Rogers et al, ‘Reformulating Fitness to Plead: A Qualitative Study’ (2009) 20(6) The Journal of Forensic Psychiatry & Psychology 815, 823.

  49. The wording of this proposed criterion is based on a formulation by Ian Freckelton in ‘Rationality and Flexibility in Assessment of Fitness to Stand Trial’ (1996) 19(1) International Journal of Law and Psychiatry 39, 57: ‘he or she cannot rationally make the decision on whether to give evidence and, if he or she wishes to give evidence, do so rationally and without being substantially prejudiced by psychiatric or intellectual impairment’.

  50. See, eg, Scott-Moncrieff and Vassall-Adams, above n 24; Helen Howard, ‘Unfitness to Plead and the Vulnerable Defendant: An Examination of the Law Commission’s Proposals for a New Capacity Test’ (2011) 75 Journal of Criminal Law 194.

  51. Victorian Law Reform Commission, Guardianship, Final Report No 24 (2012) 118–20.

  52. Mental Health Act 2014 (Vic) s 69.

  53. The Mental Health Act 2014 (Vic) replaced the Mental Health Act 1986 (Vic) on 1 July 2014: see Chapter 1 n 14.

  54. Bonnie, above n 3, 298.

  55. Freckelton, above n 49, 45.

  56. Dusky v United States 362 US 402 (1960).

  57. Scottish Law Commission, above n 32, 48.

  58. Criminal Law Consolidation Act 1935 (SA) s 269H.

  59. New South Wales Law Reform Commission, above n 31, 31–2.

  60. Law Commission (England and Wales), above n 23, 65.

  61. Victorian Parliament Law Reform Committee, Inquiry into Access to and Interaction with the Justice System by People with an Intellectual Disability and their Families and Carers (2013).

  62. Ibid 231.

  63. Submission 6 (Associate Professor Andrew Carroll).

  64. Submission 11 (Jamie Walvisch). Submission 12 (Progressive Law Network) also supported an inclusion of rationality.

  65. Submission 8 (Office of Public Prosecutions). Consultation 21 (Consultant psychiatrists, Forensicare).

  66. Submission 4 (The Australian Clinical Psychology Association). Consultations 21 (Consultant psychiatrists, Forensicare); 52 (Dr Adam Deacon).

  67. Consultation 21 (Consultant psychiatrists, Forensicare).

  68. Submission 10 (Victorian Equal Opportunity and Human Rights Commission).

  69. Submission 11 (Jamie Walvisch).

  70. Consultation 21 (Consultant psychiatrists, Forensicare).

  71. Advisory committee (meeting 2a).

  72. Brookbanks, above n 26, 174.

  73. (2000) 203 CLR 1.

  74. New South Wales Law Reform Commission, above n 31, 23.

  75. Freckelton, above n 49, 56. Freckelton proposes that a criterion for assessment should be based on whether the accused’s mental condition means that they are significantly prejudiced as criminal defendants.

  76. Consultation 55 (Children’s Court roundtable—clinicians). Freckelton uses the term ‘meaningful’ in Freckelton, above n 49.

  77. See, eg, the discussion at [3.114]–[3.133] and Recommendation 18.

  78. See Chapter 2, Recommendations 10, 11 and 13.

  79. Submission 19 (Forensicare).

  80. Consultation 21 (Consultant psychiatrists, Forensicare).

  81. Submission 11 (Jamie Walvisch).

  82. Ibid.

  83. Consultation 47 (Magistrates’ Court roundtable).

  84. Advisory committee (meeting 2); (meeting 2a).

  85. R v Sonnet (2010) 30 VR 519, 549. An exception to this rule is where a ‘special hearing’ is being conducted under the CMIA following a finding that the accused is not fit to stand trial. Section 16(2)(b) allows the accused’s legal representative to exercise the accused’s right to challenge jurors in such cases.

  86. Ronen v The Queen (2004) 211 FLR 320, 329–33 [50]–[68] (Ipp JA); Victorian Law Reform Commission, Jury Empanelment, Report No 27 (2014) 40.

  87. Submissions 4 (The Australian Clinical Psychology Association); 11(Jamie Walvisch).

  88. Submission 19 (Forensicare).

  89. [2006] SASC 46 (23 February 2006).

  90. Ibid [50], quoting R v Wahlstedt (2003) 231 LSJS 140, 143–4 (Rice DCJ).

  91. As required by section 6(1)(f) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic).

  92. Submissions 8 (Office of Public Prosecutions); 11 (Jamie Walvisch); 18 (Victoria Legal Aid); 19 (Forensicare).

  93. Submission 8 (Office of Public Prosecutions).

  94. Submission 19 (Forensicare).

  95. Submissions 21 (Criminal Bar Association); 16 (Australian Psychological Society); 4 (The Australian Clinical Psychology Association).

  96. Submission 16 (Australian Psychological Society).

  97. Submission 4 (The Australian Clinical Psychology Association).

  98. Submissions 11 (Jamie Walvisch); 8 (Office of Public Prosecutions).

  99. Submissions 8 (Office of Public Prosecutions); 11 (Jamie Walvisch); 18 (Victoria Legal Aid); 19 (Forensicare).

  100. Advisory committee (meeting 2a).

  101. Victorian Law Reform Commission, above n 51, 121.

  102. Ibid 53.

  103. Submission 14 (Office of the Public Advocate). Consultations 5 (Consumer Advisory Group (CAG) Community Forensic Mental Health Service); 11 (Melbourne Magistrates’ Court); 15 (Northern Area Mental Health Service); 8 (Latrobe Community Mental Health Service); 19 (Forensic Clinical Specialists); 25 (Victoria Legal Aid—criminal lawyers).

  104. Bonnie, above n 3, 313.

  105. Data provided by the Victorian Institute of Forensic Mental Health (Forensicare) on report requests by the Office of Public Prosecutions (OPP) in 2012–13 and the first two quarters of 2013–14. This information did not include the outcomes of such cases and does not represent all the requests for reports made over the relevant period. Prior to the beginning of 2012, when funding was secured for such reports from the Department of Justice, Forensicare’s practice was to cap the number of reports completed in response to such requests due to a lack of specific funding for such work.

  106. De-identified data provided by the Department of Human Services (DHS) (collated by the OPP and DHS). The information was initially collated by the OPP to identify the cases where it had been asked to provide advice regarding the jurisdiction of matters involving young people and the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) (approximately 21 matters). DHS added to the data by identifying four additional matters and documenting the known previous or current involvement with its programs: see Appendix D. There was information in 16 of the 25 total cases on whether the issue raised was one of unfitness or the defence of mental impairment. Of these, 13 related to an issue of unfitness alone, while two cases concerned both issues of unfitness and the defence of mental impairment. Only one case involved a defence of mental impairment alone.

  107. Chapter 6 contains the Commission’s recommendations regarding the process for determining unfitness to stand trial in the Children’s Court.

  108. See Chapter 2 at [2.77].

  109. Jodie O’Leary, Suzie O’Toole and Bruce D Watt, ‘Exploring Juvenile Fitness for Trial in Queensland’ (2013) 20(6) Psychiatry, Psychology and Law 853, 861.

  110. New South Wales Law Reform Commission, Young People with Cognitive and Mental Health Impairments in the Criminal Justice System, Consultation Paper No 11 (2010) 82.

  111. O’Leary, O’Toole and Watt, above n 109, 855.

  112. Ibid.

  113. Eraka Bath and Joan Gerring, ‘National Trends in Juvenile Competency to Stand Trial’ (2014) 53(3) Journal of the American Academy of Child & Adolescent Psychiatry 265, 266.

  114. Sophie Klinger, ‘Youth Competence on Trial’ [2007] New Zealand Law Review 235, 253.

  115. Submission 26 (Youthlaw). Consultations 45 (Youthlaw); 51 (Children’s Court roundtable—legal practitioners); 44 (Victoria Police—Children’s Court police prosecutor and policy staff); 50 (Parkville Youth Justice Centre, Department of Human Services); 53 (Head Office (Youth Justice, Forensic Disability, Child Protection and Senior Practitioner), Department of Human Services).

  116. Consultation 53 (Head Office (Youth Justice, Forensic Disability, Child Protection and Senior Practitioner), Department of Human Services).

  117. Submission 33 (Commission for Children and Young People). Consultation 48 (Children’s Court—President and magistrates, Melbourne).

  118. Submission 33 (Commission for Children and Young People). Consultations 48 (Children’s Court—President and magistrates, Melbourne); 46 (County Court of Victoria—judges).

  119. Consultations 47 (Magistrates’ Court roundtable); 51 (Children’s Court roundtable—legal practitioners).

  120. Submissions 23 (Dr Robert G Adler); 31 (Australian Psychological Society); 33 (Commission for Children and Young People). Consultations 45 (Youthlaw); 54 (Dr Katinka Morton); 44 (Victoria Police—Children’s Court police prosecutor and policy staff).

  121. Submission 31 (Australian Psychological Society).

  122. Submission 28 (The Australian Clinical Psychology Association). Consultation 55 (Children’s Court roundtable—clinicians).

  123. Submissions 31 (Australian Psychological Society); 33 (Commission for Children and Young People).

  124. Submission 30 (Victoria Police). Consultations 55 (Children’s Court roundtable—clinicians); 52 (Dr Adam Deacon).

  125. Consultation 55 (Children’s Court roundtable—clinicians).

  126. Kelly Richards, Australian Institute of Criminology, What Makes Juvenile Offenders Different from Adult Offenders?, Trends & Issues in Crime and Criminal Justice No 409 (2011) 6.

  127. Victorian Intellectual Disability Review Panel, Submission, 17 December 1992, 8, cited in Freckelton, above n 49, 45.

  128. [2002] QCA 464 (15 November 2002).

  129. [2002] QMHC12 (28 June 2002).

  130. [2002] QCA 464 (15 November 2002) [15] (de Jersey CJ).

  131. Law Commission (England and Wales), above n 23, 80–8. The Law Commission of England and Wales uses the term ‘special measures’ to refer to measures that assist vulnerable people to participate in proceedings. This report uses the term ‘support measures’. In May 2014 the Law Commission of England and Wales published an issues paper, asking whether accused should have a statutory right to the support of a registered intermediary: Law Commission (England and Wales), above n 29, 27–9. Registered intermediaries are discussed in more detail at [3.128].

  132. Ibid 86.

  133. Law Commission (England and Wales), above n 46, 32.

  134. (1980) 147 CLR 1, 9.

  135. Submissions 6 (Associate Professor Andrew Carroll); 8 (Office of Public Prosecutions); 10 (Victorian Equal Opportunity and Human Rights Commission); 19 (Forensicare). Consultation 21 (Consultant psychiatrists, Forensicare).

  136. Submission 4 (The Australian Clinical Psychology Association).

  137. Advisory committee (meeting 2a).

  138. Consultation 23 (Supreme Court of Victoria—judges). Advisory committee (meeting 2a).

  139. Submission 10 (Victorian Equal Opportunity and Human Rights Commission).

  140. Submission 6 (Associate Professor Andrew Carroll).

  141. Submission 4 (The Australian Clinical Psychology Association). Advisory committee (meeting 2a).

  142. Submission 10 (Victorian Equal Opportunity and Human Rights Commission).

  143. Submissions 19 (Forensicare); 8 (Office of Public Prosecutions). Consultation 55 (Children’s Court roundtable—clinicians).

  144. Consultation 51 (Children’s Court roundtable—legal practitioners).

  145. Ibid.

  146. Consultation 44 (Victoria Police—Children’s Court police prosecutor and policy staff).

  147. Submission 33 (Commission for Children and Young People). Consultations 51 (Children’s Court roundtable—legal practitioners); 46 (County Court of Victoria—judges).

  148. Submissions 27 (Victoria Legal Aid); 28 (The Australian Clinical Psychology Association); 29 (Victorian Equal Opportunity and Human Rights Commission). Consultations 44 (Victoria Police—Children’s Court police prosecutor and policy staff); 55 (Children’s Court roundtable—clinicians); 54 (Dr Katinka Morton).

  149. Charter of Human Rights and Responsibilities Act 2006 (Vic) s 25(3).

  150. Submissions 4 (The Australian Clinical Psychology Association); 8 (Office of Public Prosecutions). Consultations 54 (Dr Katinka Morton); 40 (Communication Resource Centre, Scope); 21 (Consultant psychiatrists, Forensicare); 17 (Department of Human Services case managers, Shepparton); 23 (Supreme Court of Victoria—judges).

  151. Consultation 55 (Children’s Court roundtable—clinicians).

  152. Consultation 40 (Communication Resource Centre, Scope).

  153. Ibid.

  154. Submission 8 (Office of Public Prosecutions). Consultations 40 (Communication Resource Centre, Scope); 23 (Supreme Court of Victoria—judges); 24 (County Court of Victoria—judges).

  155. Consultations 23 (Supreme Court of Victoria—judges); 24 (County Court of Victoria—judges). Note that one person consulted did not believe that proceedings should be made less formal, but noted that proceedings should reflect the seriousness of the matter: Consultation 37 (Partner of a victim of crime).

  156. Victorian Law Reform Commission, above n 51, ch 7.

  157. This is consistent with the Law Commission’s proposals: see Law Commission (England and Wales), above n 23, 88. See also Law Commission (England and Wales), above n 29, 27–9.

  158. Department of Justice (UK), Registered Intermediaries: Assisting Vulnerable Witnesses and Defendants with Communication Difficulties in the Criminal Justice System, Factsheet (September 2013) <http://www.dojni.gov.uk/index/publications/publication-categories/pubs-criminal-justice/registered-intermediaries-information-leaflet.pdf>. The 2013 Criminal Practice Directions permit the court to appoint an intermediary for the accused. See Court of Appeal (Criminal Division), Criminal Practice Directions [2013] EWCA Crim 1631, [3F.1]–[3F.6].

  159. Penny Cooper and David Wurtzel, ‘A Day Late and a Dollar Short: in Search of an Intermediary Scheme for Vulnerable Defendants in England and Wales’ (2013) 1 Criminal Law Review 4, 5.

  160. Ibid.

  161. Department of Justice (UK), above n 158.

  162. Youth Justice and Criminal Evidence Act 1999 (UK) c 23, s 29(2).

  163. Kirsten Hanna et al, ‘Questioning Child Witnesses: Exploring the Benefits and Risks of Intermediary Models in New Zealand’ (2013) 20(4) Psychiatry, Psychology and Law 527, 533.

  164. Law Commission (New Zealand), The Evidence of Children and Other Vulnerable Witnesses, Preliminary Paper No 26 (1996) 45.

  165. Terese Henning, ‘Obtaining the Best Evidence from Children and Witnesses with Cognitive Impairments—“plus ça change” or Prospects New?’ (2013) 37 Criminal Law Journal 155, 174.

  166. Crown Court and Magistrates’ Courts (UK), Practice Direction—Part III.30: Further Practice Directions Applying in The Crown Court and Magistrates’ Courts—Criminal Procedure Rules, Treatment of Vulnerable Defendants (19 April 2013) <http://www.justice.gov.uk/courts/procedure-rules/criminal/practice-direction/part3>.

  167. Submissions 19 (Forensicare); 18 (Victoria Legal Aid); 8 (Office of Public Prosecutions). Consultations 21 (Consultant psychiatrists, Forensicare); 28 (Senior Practitioner—Disability Practice Leader, Office of Professional Practice, Department of Human Services).

  168. Submissions 19 (Forensicare); 6 (Associate Professor Andrew Carroll).

  169. Consultation 21 (Consultant psychiatrists, Forensicare).

  170. Consultation 55 (Children’s Court roundtable—clinicians).

  171. Advisory committee (meeting 2a).

  172. Hogg Foundation for Mental Health, Restoration of Competency to Stand Trial (Issue Brief, 2013); Legislative Analyst’s Office (California), An Alternative Approach: Treating the Incompetent to Stand Trial (2012) 10.

  173. Barry W Wall and Paul P Christopher, ‘A Training Program for Defendants With Intellectual Disabilities Who Are Found Incompetent to Stand Trial’ (2012) 40 The Journal of the American Academy of Psychiatry and the Law 366, 366.

  174. Ibid 368.

  175. Ibid 367.

  176. Janet Warren et al, ‘Developing a Forensic Service Delivery System for Juveniles Adjudicated Incompetent to Stand Trial’ (2009) 8 International Journal of Forensic Mental Health 245, 246.

  177. Ibid 249.

  178. Legislative Analyst’s Office (California), above n 172, 3, 9.

  179. Wall and Christopher, above n 173, 367.

  180. Ibid.

  181. Jodi L Viljoen and Thomas Grisso, ‘Prospects for Remediating Juveniles’ Adjudicative Incompetence’ (2007) 13(2) Psychology, Public Policy and Law 87, 107. See also, Warren et al, above n 176, 258–9.

  182. Warren et al, above n 176, 259.

  183. Viljoen and Grisso, above n 181, 107.

  184. See Recommendation 46.

  185. Consultations 21 (Consultant psychiatrists, Forensicare); 55 (Children’s Court roundtable—clinicians).

  186. Consultation 21 (Consultant psychiatrists, Forensicare).

  187. Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) s 14(2)(b).

  188. Ibid ss 13(1)(b), (2).

  189. Ibid s 13(3)(c).

  190. Astrid Birgden and Don Thomson, ‘The Assessment of Fitness to Stand Trial for Defendants with an Intellectual Disability: A Proposed Assessment Procedure Involving Mental Health Professionals and Lawyers’ (1999) 6(2) Psychiatry, Psychology and Law 207, 211.

  191. Consultation 23 (Supreme Court of Victoria—judges).

  192. Submission 21 (Criminal Bar Association).

  193. Submission 19 (Forensicare).

  194. Submissions 5 (Patricia Farnell); 13 (Australian Community Support Organisation Inc.). Consultations 27 (Victoria Police—police prosecutors); 55 (Children’s Court roundtable—clinicians).

  195. Consultation 55 (Children’s Court roundtable—clinicians).

  196. Consultation 27 (Victoria Police—police prosecutors).

  197. See, eg, consultation 28 (Senior Practitioner—Disability Practice Leader, Office of Professional Practice, Department of Human Services).

  198. Submission 13 (Australian Community Support Organisation Inc.).

  199. Consultation 53 (Head Office (Youth Justice, Forensic Disability, Child Protection and Senior Practitioner), Department of Human Services).

  200. Ibid.

  201. Ibid.

  202. Ibid.

  203. Consultation 40 (Communication Resource Centre, Scope).

  204. Submissions 31 (Australian Psychological Society); 33 (Commission for Children and Young People); 29 (Victorian Equal Opportunity and Human Rights Commission).

  205. For example, the Australian Clinical Psychology Association suggested training and accreditation requirements similar to those in place for providing assessments to the Motor Accidents Authority of New South Wales: Submission 4 (The Australian Clinical Psychology Association).

  206. Submission 28 (The Australian Clinical Psychology Association). Consultations 55 (Children’s Court roundtable—clinicians); 54 (Dr Katinka Morton).

  207. For example, Victoria Legal Aid suggested that a guide for experts could specify what should be included in a report; for example, specifying that reports explicitly address each element of the unfitness criteria. Submissions 11 (Jamie Walvisch); 16 (Australian Psychological Society); 18 (Victoria Legal Aid); 4 (The Australian Clinical Psychology Association).

  208. Submission 33 (Commission for Children and Young People). Consultations 54 (Dr Katinka Morton); 55 (Children’s Court roundtable—clinicians).

  209. Submission 31 (Australian Psychological Society). Consultations 36 (Family member of person subject to a non-custodial supervision order under the CMIA); 28 (Senior Practitioner—Disability Practice Leader, Office of Professional Practice, Department of Human Services); 40 (Communication Resource Centre, Scope).

  210. Freckelton, above n 49, 54.

  211. For example, any change could be implemented through the introduction of statutory provisions or regulations in the CMIA, education and training or the development professional guidelines.

  212. This figure was calculated over a one-year period from February 2013 to February 2014 and includes all the direct inpatient costs at the hospital, including clinical services provided by other agencies and non-medical services. It does not include an allocation for the indirect costs of running the hospital, such as the clinical and corporate management and support. The figure provided is an average produced from the total costs across the number of patients the hospital can accommodate. It does not take account of the different costs between units depending on their staffing models and programs and does not distinguish between the legal status of individual forensic patients and their leave requirements.

  213. Steering Committee for the Review of Government Service Provision, Report on Government Services 2014 (2014) Table 8A.7.

  214. Ibid Table 16A.24.

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