The law on (un)fitness to be tried

My name is Judge Michael O’Connell, and I’ve been asked to provide an overview to you about the law relating to fitness or unfitness of a person to stand trial, together with a summary of the law as it relates to insanity or as it’s become known in this state, mental impairment. Now, generally, I’ll refer to the law as it currently exists in the state of Victoria and Australia. But many of the concepts I’ll be referring to, have their genesis in the common law. But let me begin with an overview of the relevant legislation as it relates to this area of the law.

Now, first, the law relating to an accused’s fitness to stand trial and mental impairment, (formally known as insanity), is regulated by an act of parliament called the Crimes Mental Impairment and Fitness to Be Tried Act, 1997. And that’s been operational in Victoria since April 1998. Now, much of that legislation has its origins in the common law, but as I’ll explain later, it attempts to deal with mentally ill offenders in a much more humane way than was previously the case under our common law system. So, we should first start with what is a fundamental distinction that defines this area of the law. And that distinction is between unfitness to be tried and mental impairment.

The issue of fitness to stand trial, it should be understood, relates to the accused’s condition at the time of trial. And that’s important to bear in mind, whereas the defense of mental impairment, that is insanity, that defense relates to the accused’s condition at the time of the actual offence. So we’ll move now and consider some of the detail associated with unfitness to be tried. And the first point to make is that it is an important common law principle that a person cannot be tried for criminal offences unless they are fit to stand trial.

The essential principle being that no person should be tried for a crime unless they are in a position to defend themselves and that includes being in a mental condition to defend themselves. It follows that ensuring that a person is fit to be tried is an incident of ensuring a fair trial. And that involves determining whether the accused, because of mental defect, fails to come up to certain minimum standards, which he or she needs to meet before they can be tried, as it is said, without unfairness or injustice to them. The first requirement is that the accused must be able to understand the nature of the charge. The second requirement is that they must be able to enter a plea.

Thirdly, they must be able to exercise the right to challenge jurors or the jury pool. Fourth, they must be able to understand the nature of a trial as an inquiry into whether the accused committed the offense. Fifthly, they must be able to follow the course of the trial. Sixthly, they must be able to understand the substantial effect of any evidence that may be given in support of the prosecution, and seventhly, they must be able to instruct counsel. Now, those criteria encompass the minimum standards for an accused person to meaningfully participate in the trial. Now, if they are unable to meet any of those requirements, then they are likely to be found unfit to stand trial.

There are two parts to this test that the jury must find on the balance of probabilities. The first is that the accused currently suffers from at least one of those incapacities. That is that they can’t meet one of those minimum requirements. And secondly, that the incapacity is caused by the accused’s impaired or disordered mental processes. Now, while the accused does not need to be insane to be considered unfit to stand trial, his or her incapacity must be caused by impaired or disordered mental processes. Now, that does not mean that the accused must suffer from a mental illness.

A person’s mental processes may be impaired or disordered due to other factors such as intellectual impairment, a profound learning disability, an acquired brain injury would be another example. A person’s mental processes may also be impaired or disordered where impairment impedes the reception rather than the processing of information. So what I mean by that is that in some circumstances, a physical impairment such as profound deafness might, for example, fall within the test as to unfitness to stand trial. So the next question to consider is when should an investigation into an accused’s fitness to stand trial be held?

And essentially, a judge must order an investigation into the accused’s fitness to stand trial if it appears that there is what is called a real and substantial question about that issue and a real and substantial question will exist whenever it would be open to a properly instructed jury to conclude that the accused was not fit to stand trial. To order an investigation, a judge does not need to have formed a prima facie view about the accused’s unfitness. Fitness is to be tried by a jury, and it is for them to determine whether or not a person is unfit.

And that question will be left to the jury to determine at an investigation unless no reasonable jury could conclude that the accused was unfit.

Now, the issue of the accused’s fitness should be raised by some evidence before the judge, for example, it’s simply not enough for counsel to make assertions that their client is unfit. Those assertions would need to be supported by evidence such as a psychiatrist’s or psychologist’s report, affidavits indicating behaviour out of court of the accused, or perhaps even in court behaviour. Things of that kind are required. The obligation to order an investigation is part of a judge’s duty to ensure a fair trial and where the accused is unrepresented or has previously been found unfit to be tried, it is important that the judge be particularly careful to ensure that the trial is not unfair in those circumstances.

It should be said that failing to order an investigation where there is a real and substantial question about the accused’s fitness to stand trial will constitute a fundamental defect in the trial procedure, and it would render the trial a nullity. I’ll turn briefly now, if I can, just to the procedure for ordering an investigation into an accused’s fitness- first point to make is that the issue of the accused’s fitness to stand trial may be raised at any stage of the proceedings by the prosecution, by the defense or even by the judge.

And if the question of fitness arises during a trial, the trial will need to be adjourned or discontinued to allow the investigation to be conducted. The judge may therefore be required to adjourn a trial and order an investigation even after the close of the prosecution case or even after final addresses have been given to the jury because the accused must be able to make a defense. And it is the case, I should add, that the accused’s fitness to stand trial can be raised more than once in the same proceeding. The fact that an investigation has previously been held doesn’t prevent a judge from ordering a further investigation.