On 27 March 2021, a new regime came into effect in New South Wales which aims to divert those with mental health issues away from the criminal justice system, and towards getting them the help they need.
Part 4 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (the Act) contains the rules regarding whether a person is mentally fit to stand trial.
If you or a loved-one has been charged with a criminal offence while suffering from a mental health condition or a cognitive impairment, call Sydney Criminal Lawyers anytime on (02) 9261 8881 and let our experienced defence team provide support, guidance and formidable representation throughout the process.
What is a ‘fitness to stand trial’?
A person can normally be put to trial before a judge and jury, or a judge-alone, if they are able to understand and comprehend the nature of the charges brought against them, instruct their lawyers and participate in the court process.
However, the law says that those who are unable to do these things due to mental health issues cannot be put on trial in certain situations.
This means they are unfit to stand trial.
When is a person unfit to stand trial?
The law makes clear that a person who has a mental health impairment and/or a cognitive impairment is unfit to stand trial if he or she is unable to do one of more of the following:
- Understand the offence the subject of the proceedings,
- Plead to the charge,
- Exercise the right to challenge jurors,
- Understand generally the nature of the proceedings as an inquiry into whether the person committed the offence with which the person is charged,
- Follow the course of the proceedings so as to understand what is going on in a general sense,
- Understand the substantial effect of any evidence given against the person,
- Make a defence or answer to the charge,
- Instruct the person’s legal representative so as to mount a defence and provide the person’s version of the facts to that legal representative and to the court if necessary, or
- Decide what defence the person will rely on and make that decision known to the person’s legal representative and the court.
The above list is not exhaustive. In other words, other factors can be taken into account when deciding whether a person is unfit to stand trial.
What is a mental health impairment?
A person has a ‘mental health impairment’ if:
- He or she has a temporary or ongoing disturbance of thought, mood, volition, perception or memory,
- The disturbance is significant for clinical diagnostic purposes, and
- The disturbance impairs the person’s emotional wellbeing, judgment or behaviour.
Mental health impairment includes, but is not limited to:
- Anxiety disorder,
- Affective disorder, including clinical depression and bipolar disorder,
- Psychotic disorder, and
- Substance induced mental disorder that is not temporary.
Mental health impairment does not include:
- The temporary effect of ingesting a substance, or
- A substance use disorder.
What is a cognitive impairment?
A person has a ‘cognitive impairment’ if:
- He or she has an ongoing impairment in adaptive functioning
- The impairment relates to comprehension, reason, judgment, learning or memory, and
- The impairment results from damage to, or dysfunction, developmental delay or deterioration of the brain or mind.
Cognitive impairment may arise from:
- Intellectual disability,
- Borderline intellectual functioning,
- Acquired brain injury,
- Drug or alcohol related brain damage, including foetal alcohol spectrum disorder, or
- Autism spectrum disorder.
Who may raise a question of fitness?
The question of fitness may be raised by the court, the defence or the prosecution.
When may a question of fitness be raised?
If it is practicable to do so, the question of fitness should be raised before the person is ‘arraigned’; in other words, before he or she has the charges read out to them in court and formally enters pleas of guilty or not guilty.
However, the question can be raised at any time during the proceedings.
What standard of proof is applied to the question of fitness?
The question of whether a person is fit to stand trial is decided ‘on the balance of probabilities’; in other words, more likely than not.
This is lower than the usual criminal standard of ‘beyond a reasonable doubt’.
What happens when the question of fitness is raised before an arraignment?
If the question of fitness is raised before an arraignment – in other words, before the charges are read to the defendant and he or she enters a formal plea – the court must determine whether a ‘fitness inquiry’ should be conducted before the trial proceeds.
However, the court can then decide – at any time before the trial – that such an inquiry is no longer required.
What happens when the question of fitness is raised after an arraignment?
If the question of fitness arises after an arraignment – in other words, after the charges are read to the defendant and he or she enters a formal plea – the court must hear any submissions from the defence and prosecution regarding whether a ‘fitness inquiry’ should be held, in the absence of the jury.
What is a ‘fitness inquiry’?
A fitness inquiry is a type of hearing to decide whether a person is unfit to stand trial.
When must a court hold a fitness inquiry?
The court must conduct a fitness inquiry if:
- It determines that such an inquiry should be conducted before a person is arraigned and it does not change that determination, or
- The person’s unfitness is raised after the defendant is arraigned.
Such an inquiry must be held ‘as soon as practicable’ after the court makes its determination.
When may a fitness inquiry not be held?
The court is not required to hold a fitness inquiry if:
- It appears that the question of fitness has been raised in bad faith, or
- The charges are trivial, the person’s cognitive impairment is substantial, or for any other reason – in which case the court can dismiss the charges and discharge the person.
What orders can the court make before a fitness inquiry?
The court is permitted to do one or more of the following before a fitness inquiry is held:
- Adjourn the case,
- Grant bail,
- Refuse bail for up to 28 days,
- Order a psychiatric assessment or psychiatric report,
- Discharge a jury, or
- Make any other appropriate orders.
What are the procedures for a fitness inquiry?
The following procedures apply to a fitness inquiry:
- It is conducted by a judge-alone,
- The defendant is represented by a lawyer,
- It is not to be conducted in an adversarial manner, and
- The onus of proof on the balance of probabilities does not rest on either party.
What must the court consider when deciding whether to declare a person unfit?
In addition to mental state, the court must take the following matters into account when deciding whether to declare a defendant to be unfit to stand trial:
- Whether the trial can be modified, or assistance provided, to enable the defendant to understand and effectively participate in the process,
- The likely length and complexity of the trial, and
- Whether the defendant is, or can be, represented by a lawyer.
How long is a person fit or unfit?
A person who is found to be unfit continues to be so until it is established that he or she is unfit, and vice-versa.
What happens if a person is found to be fit?
If a person is found to be fit, the proceedings recommence or continue as usual.
What happens if a person is found to be unfit?
If a person is found to be unfit to be tried, the court must then determine whether – on the balance of probabilities – he or she:
- May become fit within the next 12 months, or
- Will not become fit within the next 12 months.
What orders can the court make if a person is found to be unfit?
The court can make any one or more of the following orders if a person is found to be unfit to stand trial:
- Discharge the jury,
- Adjourn the case,
- Grant bail,
- Refuse bail, or
- Any other appropriate order.
What happens if the court finds that the unfit person will remain unfit for the next 12 months?
If the court finds that a person who has been found unfit to stand trial will continue to be so for the next 12 months, a ‘special hearing’ will then be held.
However, a special hearing will not be required if the prosecution (normally by the DPP) advises the court that no further proceedings will be taken against the person.
In that event, the charge or charges will be dismissed and the person will be acquitted.
What happens if the court finds that the unfit person may become fit in the next 12 months?
If the court finds that the unfit person may become fit within the next 12 months, it must refer him or her to the Mental Health Review Tribunal.
What happens in the Mental Health Review Tribunal?
The Tribunal may conduct a review of the unfit person to determine whether he or she will be fit to be tried within 12 months of a finding of unfitness.
The Tribunal may then notify the court as to its determination, at which time the court may confirm unfitness and proceed by way of a ‘special hearing’ or fitness by way of a committal hearing by referring the matter before a magistrate.
What is a ‘special hearing’?
A special hearing is a court process to determine whether, despite the person’s unfitness to stand trial, he or she is guilty of the offence charged or another offence.
The prosecution is required to prove the offence or offences beyond a reasonable doubt.
If the prosecution is unable to do so, the person must be acquitted.
When must a special hearing take place?
A special hearing must take place as soon as practicable after the court or Mental Health Review Tribunal determines that a person will not, during the 12 months following a finding of unfitness, become fit to be tried.
The requirement does not apply if the court has ordered the person’s release.
What are the procedures for a special hearing?
The following procedures apply to a special hearing:
- It must be conducted ‘as nearly as possible’ as if it were a trial,
- A court may modify processes to facilitate the person’s effective participation,
- A finding of unfitness to be tried is not to be taken as an impediment,
- The person is to be taken to have pleaded not guilty to the substantive charge or charges,
- The person may raise any available legal defence,
- The person is entitled to give evidence ie to testify during the hearing, and
- The court may permit the person not to appear, or exclude the person from appearing, if it feels this is appropriate provided the person is represented by a lawyer.
Who will a special hearing be heard before?
A special hearing is heard before a judge-alone unless an election is made for the matter to be heard before a jury by:
- The defendant and the court is satisfied the person sought, received and understood advice about electing to have a jury, or
- A lawyer is representing the defendant, or
- The prosecution elects to have the matter heard before a jury.
When must an election for a jury be made?
Any election to have a special hearing heard before a jury must be made:
- Before the day of the special hearing if the defendant elects, or
- At least 7 days before the special hearing if the prosecution elects.
If such an election is made, the defendant or his or her lawyer may later elect to have the special hearing determined by a judge-alone.
What verdicts can be reached during a special hearing?
The verdicts available at a special hearing include:
- Not guilty of the offence charged,
- Act proven but not criminally responsible due to mental health impairment or cognitive impairment,
- On the limited evidence available, the person committed the offence, and
- On the limited evidence available, the person committed an alternative offence.
What happens if the verdict is not guilty?
A person who is found not guilty at a special hearing is treated in the same way as if he or she had been found not guilty after a trial.
What happens if the verdict is proven but not criminally responsible?
Where a verdict of offence proven but not criminally responsible due to mental health impairment or cognitive impairment is returned, the person is dealt with in the same way as if they had raised the defence of not guilty due to mental health impairment or cognitive impairment and been successful with that defence.
This means the person must be referred to the Mental Health Review Tribunal which may determine that he or she is required to undertake treatment in a mental health facility.
The court cannot make an order for the person’s unconditional release.
What happens if the verdict is that the offence was committed?
A verdict of offence committed on limited evidence does not amount to a conviction and is subject to appeal in the same way as a finding of guilt.
However, the finding is considered to be a conviction for the purposes of the complainant making a claim for compensation.
What penalties can be imposed after a finding of offence proven at a special hearing?
Where the special hearing found the offence or an alternative offence to be proven, the court may:
- Impose a ‘limited term’ of imprisonment which is the ‘best estimate’ that a court would have imposed given all of the circumstances, or
- Impose any other penalty, including a non-conviction order or any alternative to imprisonment, that the person may have been eligible for if he or she had been found guilty in regular proceedings
What factors will be taken into account when determining a penalty?
When determining a penalty after a finding of offence proven include, the court:
- Must consider the fact that the person may not be able to enter a guilty plea (and thereby receive a sentencing discount) and/or demonstrate mitigating factors for sentencing due to his or her mental health impairment and/or cognitive impairment,
- May apply any sentencing discounts that could have been applied following a guilty plea, and
- Must consider periods of detention and/or custody before, during and after the special hearing.
Can an unfavourable verdict be appealed?
Yes. An unfavourable verdict can be appealed in the same way as a verdict in regular court proceedings.