Con financiamiento

Background to the recommendations Who can raise fitness and when?

5.9 For criminal proceedings in the Supreme and District Courts, any party to the proceedings or the court can raise the issue of the accused’s fitness.10 The issue can be raised at any time during the course of the hearing but preferably is to be raised before the person is arraigned.11 If raised before arraignment, the Attorney General must determine whether an inquiry should be conducted into a person’s fitness to be tried prior to the hearing,12 or, if the question is raised after the person is arraigned, the court must hear submissions, in the absence of the jury, about whether there should be such an inquiry.13 If the Attorney General decides that an inquiry should be conducted, or the question of unfitness is raised in good faith after arraignment, the court must hold a fitness inquiry.14 Before such an inquiry is carried out the court may make any appropriate orders, including either granting the person bail or remanding the person in custody, or requiring psychiatric examinations or reports.15 The fitness inquiry is carried out by the court either with a judge sitting alone or with a jury constituted for that purpose.16

If found fit/unfit to be tried by the court?

5.10 If the defendant is found fit to be tried, criminal proceedings may re-commence or continue.17 If a jury has been used to determine fitness, a new jury must be empanelled.18 If found unfit to be tried, the person is referred to the Tribunal,19 which must determine whether, on the balance of probabilities, the person will become fit to be tried during the period of 12 months after the finding of unfitness.20 (This determination is referred to in this chapter as the “initial determination”.)

The Mental Health Review Tribunal

5.11 The Tribunal makes or reviews a variety of orders and decisions affecting people with mental illnesses or mental disorders living in the community or in hospital. It also makes determinations and recommendations to government about certain people involved in the criminal justice system, namely those found unfit to be tried by a court, found not guilty on the ground of mental illness, or who became mentally ill while in prison and have been transferred to a psychiatric hospital. These people are known as “forensic patients”.21 The Tribunal consists of both full-time and part-time members, including lawyers, psychiatrists and other suitably qualified or experienced persons.22 When considering forensic patients, the Tribunal meets as a three person panel consisting of the President or Deputy President, a psychiatrist and “a member (not being a psychiatrist or a barrister or solicitor) who has other suitable qualifications or experience”.23 Its meetings are to be conducted as informally as possible and it is not bound by the rules of evidence.24 Proceedings of the Tribunal are open to the public except in cases where an objection made by one of the parties to the proceedings is upheld by the Tribunal.25 Determination that the person WILL become fit to be tried within 12 months

5.12 Given that intellectual disability is a permanent condition, it is unlikely that a person with an intellectual disability will become fit to be tried within the year. People with some forms of mental illness, however, may recover sufficiently to become fit. Additionally, a person with an intellectual disability who also has a mental illness may become fit when the mental illness is treated. If the Tribunal’s initial determination is that (on the balance of probabilities) the person will become fit to be tried within 12 months, it also must determine whether the person is suffering from a mental illness or a mental condition for which treatment is available in a hospital.26 The court is then notified of the Tribunal’s findings and may make a number of orders affecting that person, including release on bail or detention for up to 12 months in a hospital or “place other than a hospital”.27 If the person is detained the Tribunal must review the person’s case again as soon as possible and determine whether in its opinion:

(b) the safety of the person or any member of the public will be seriously endangered by the person’s release.28

If, at this or subsequent reviews during the 12 month period, the Tribunal is of the opinion that the person has become fit to be tried, it must notify the Attorney General.29 The Attorney General then either advises the Minister for Health that no further proceedings will be taken, and the person is released after certain notification requirements are fulfilled, or requests the court to hold a further inquiry about the accused’s fitness.30

5.13 Release. If, at subsequent reviews during the 12 month period, the Tribunal still finds the person has not become fit to be tried (despite the original finding by the Tribunal that the person is likely to become fit) and is satisfied that the safety of the person or any member of the public will not be seriously endangered by the person’s release, the Tribunal must make a recommendation to the Minister for Health for the person’s release.31 The Tribunal does not have the power itself to order the release of the person. The Minister for Health must then notify the Attorney General and the Director of Public Prosecutions (“DPP”).32 The DPP has 21 days to advise the Attorney General if criminal proceedings will be taken against the person.33 At this point the Attorney General can object to the person’s release either because the person “has served insufficient time in custody or under detention” or because the Attorney General or the DPP intends to proceed with criminal charges against the person.34 If the Attorney General does not object, the Minister for Health may release the person, though such release may be subject to conditions.35 Breach of conditions can lead to arrest and further detention.36 Determination that the person WILL NOT become fit to be tried within 12 months

5.14 If the Tribunal’s initial determination (when the matter is first referred to it by the court) is that (on the balance of probabilities) the person will not be fit to be tried within 12 months, the Tribunal must notify the Attorney General.37 The Attorney General, after receiving advice from the DPP, can then either direct that a “special hearing” be held or decide not to proceed against that person, and advise the relevant agencies accordingly.38 In the latter case the person must be released.39

5.15 A number of submissions suggested that people with an intellectual disability should proceed directly to the special hearing following a finding of unfitness, as their condition is unchanging and the finding by the Tribunal that the person will not be fit to be tried within 12 months becomes an

unnecessary formality and delay.40 However, this presumes that the cause of the person’s unfitness was correctly identified at the fitness hearing. Many people have a range of factors, some permanent, some treatable, which may affect their fitness to be tried. Treatment for a previously undiagnosed mental illness in the 12 month period may allow a person with an intellectual disability to become fit to be tried. The proposal removes the protection provided by having the person appear before an expert Tribunal, which not only makes a determination about the person’s likely fitness (which may in fact be different from the court’s determination) but which also makes a determination about the person’s appropriate detention for the period before the special hearing. The Commission prefers that the Tribunal should consider all people who have been found unfit to be tried. It believes that the Tribunal, rather than a court, should make the decision that the person is unlikely to become fit to be tried within the 12 months, even for people with an intellectual disability. The Commission appreciates that this step does lead to some delays in the process, but believes that the protections provided are important. Other ways of reducing delays in the fitness process are considered in the recommendations below.

5.16 Special hearing. A special hearing is conducted like a normal criminal trial before a judge and jury or, if the accused elects, by a judge sitting alone. The verdicts available at the special hearing are:

(a) not guilty of the offence charged [in which case the person is released]; (b) not guilty on the ground of mental illness;

(c) that on the limited evidence available, the accused person committed the offence charged;

(d) that on the limited evidence available, the accused person committed an offence available as an alternative to the offence charged.41

If a finding of guilt “on the limited evidence available” is made at that special hearing (that is, verdicts (c) or (d)), the court must indicate the sentence it would have imposed if the special hearing had been a normal trial with a finding of guilt. Such a sentence, if any, is referred to as a “limiting term”.42 There is a right for an appeal from such a verdict.43 After sentencing, the court refers the person to the Tribunal. The Tribunal must then determine whether or not the person has a mental illness or mental condition and notify the court of its determination,44 following which the court can order that the person be detained in a hospital or “in a place other than a hospital”.45 In practice, the only other alternative in New South Wales to a psychiatric hospital is gaol, even though this generally will be inappropriate for a person who is unfit to be tried.

5.17 Release after the special hearing. After the special hearing, the responsibility of the Tribunal continues for the person serving a limiting term, who remains classified as a “forensic patient”. As for persons found unfit to be tried and ordered to be detained (see para 5.10), the Tribunal must, as soon as practicable, review the person’s case. It must determine whether:

(a) the person has become fit to be tried for an offence; and

(b) the safety of the person or any member of the public will be seriously endangered by the person’s release.46

The procedure then is similar to that set out in paras 5.12-5.13. In any event, release will be automatic at the end of the limiting term.47 There is no power to detain the person beyond the limiting term. However if the person is a “mentally ill person” or a “mentally disordered person” and a medical practitioner or an “accredited person” is satisfied that no other appropriate means for dealing with a person are reasonably available, the person can be detained as an involuntary patient.48

Continuing review by the Tribunal of forensic patients

5.18 The Tribunal may, at any time, review the case of persons detained who were considered unfit to be tried and make recommendations for release to the Minister for Health. Such a review (as for all forensic patients) must take place at least every six months.49 As always, the Tribunal cannot make a recommendation for release “unless it is satisfied, on the evidence available to it, that the safety of the patient or any member of the public will not be seriously endangered by the person’s release”.50 As part of the regular six monthly review, the Tribunal must notify the Attorney General if a detained person has become fit to be tried.51 The Attorney General, after consultation with the DPP, must then either request the court to hold a further inquiry about the accused’s fitness or advise the Minister for Health that no further proceedings will be taken and the Minister for Health must order the person’s release.52 Appeals are discussed at paras 5.60-5.65 below.

Developments since DP 35

Model Mental Impairment and Unfitness to be Tried (Criminal Procedure) Bill 1995

5.19 The Model Criminal Code Officers Committee has developed a Model Bill in the area of fitness to be tried and mental impairment. The October 1995 version was completed following the release of a draft Bill in late 1994 and a period of consultation. The 1995 Bill, which is substantially similar to the 1994 version, has been sent to the Standing Committee of Attorneys General (“SCAG”) and the relevant State Ministers, but has not yet been officially endorsed by SCAG. South Australia and Western

Australia have recently introduced Acts with some similarities to the Model Bill.53

5.20 The Bill provides for fitness inquiries and special hearings, but all relevant decisions are made by the court, not the executive or a Tribunal. Other differences between the Model Bill and the New South Wales position are:

the same procedures apply to all courts, including Local Courts (cl 5); there is a statutory definition of fitness (cl 6);

if the question of fitness is raised at a committal hearing, the committal must be completed and the question reserved for determination at trial (cl 8(2));

the same jury can be used for the fitness issue and the remainder of the proceedings involving the accused (cl 10(3));

the person’s situation is reviewed by an appropriate expert every 12 months, not every 6 months as in New South Wales (cl 21);

the Bill sets out principles of release to guide the courts (cl 23);

evidence of findings made at the fitness or special hearings is not admissible against the defendant in criminal proceedings (cl 31); and

there are provisions for reporting on the attitudes and counselling of the next of kin and victims. Victorian review of Governor’s Pleasure legislation

5.21 The Community Development Committee of the Parliament of Victoria also reported on this area in October 1995.54 In brief, the Committee appears to have largely followed the special hearing and limiting term approach adopted in the Model Bill, though with Victorian adaptations. The Committee has not recommended a system based on the New South Wales Tribunal model. Additionally, unlike the Model Bill, the Committee did not believe that the recommended system should apply to courts of summary jurisdiction. The Committee also recommended the establishment of a Forensic Leave Panel to hear all applications for leave of absence by forensic patients.

Discussion of the Commission’s recommendations: Supreme and District Courts

5.22 The Commission’s recommendations in this area are designed primarily to achieve two ends, first to ensure that the unfit accused is not disadvantaged compared to a “normal” accused person, and secondly to ensure that the unfit accused with an intellectual disability, which is a permanent condition, is not disadvantaged compared to other persons found unfit for other reasons, for example, because of mental illness and physical disability.