Role of the jury and the defense

Turning then to the nature of an investigation into fitness and first of all, the role of the jury, the question of the accused’s fitness to stand trial is a question of fact which must be determined at an investigation by a jury empanelled for that purpose. It is presumed that every person is fit to stand trial. The jury’s role in an investigation is to determine on the balance of probabilities whether that presumption of fitness has been rebutted insofar as evidence is concerned, the court must hear any relevant evidence and submissions put by both the prosecution and the defense.

Indeed, the trial judge may also call evidence on his or her own initiative if they form the view that it is in the interests of justice to do so. Insofar as the onus of proof is concerned, I think I may have already mentioned that the standard of proof in an unfitness investigation is the civil standard of the balance of probabilities. Now, which party will bear the onus of proof depends on who raises the issue. If it is raised by the prosecution, it will be for the prosecution to prove. If it is raised by the defense, it will be for the defense to prove.

And in the less often case where the issue is raised by the judge, neither party bears the onus of proof, although the prosecution will take on the carriage of the investigation. I’ll turn then to possible findings or verdicts in an investigation, first of all, we have an especially empanelled jury to determine the issue and they will determine whether the accused is unfit to stand his or her trial. And if they do, the trial judge must then determine on the basis of the expert opinion available, whether the accused is unlikely to become fit within the next 12 months.

And if the accused is unlikely to become fit, then what’s called a special hearing will need to be conducted at which a different jury may make one of the following findings. The first possible finding is not guilty of the offense charged, the second is not guilty of the offense because of mental impairment and the third is that the accused committed the offense charged or an offense available as an alternative. I want to say something now about determining the accused’s capacity so the application of those minimum standards that the investigation examines to determine fitness.

So the first point to make is the jury should determine whether the accused is unfit to stand trial in what’s called a common sense fashion, because if the test is applied too literally, it may incorrectly set a threshold for fitness that can only be met by a person of very high intelligence. The critical question is whether the accused meets the minimum requirements for fitness as they are specified in the legislation, and they conform with what I’ve previously outlined for you. Now, the ability of an accused to follow the course of the trial and to understand the substantial effect of the evidence may depend on the complexity of the trial.

For example, a greater degree of understanding and capacity may be required for a complex fraud trial than for a trial in which the issues are narrow and well defined. Where counsel will represent the accused and aid the accused during the trial, the jury should take that into account in determining whether he or she is or will be able to understand and follow the court’s processes. It’s worth pointing out that poor forensic choices or counterproductive behaviour in court will not of itself render a person unfit to be tried. While the accused may be able to make forensic choices and instruct counsel on the nature of his or her defense, the requirements don’t require that they make an able defense.

The person will not be unfit to stand trial simply because they are suffering from a memory loss. For example, they cannot remember the facts surrounding the alleged offending. Similarly, bizarre or disruptive behaviour does not of itself render a person unfit to be tried. The overriding consideration is whether the accused can stand their trial in a meaningful sense and not just appear to do so.

I want to come back now, if I can, to that distinction between unfitness to be tried and mental impairment, the fitness of the accused to be tried, rather, addresses different issues to the defense of mental impairment. An accused may be unfit to be tried even if he or she is not insane in either the colloquial sense or in the M’Naughten sense. Similarly, the mere existence of a mental disorder will not mean that the accused is unfit to be tried. There must be some link between the mental disorder and the ability of the accused to understand and participate in the trial process. I thought it might be useful to make some observations about the workings of this law in practice.

I have already made the point that the law relating to fitness to stand trial is an incident of the accused’s right to a fair trial, and it follows that a judge needs to be astute to this issue in discharging his or her obligation to ensure that the accused does indeed have a fair trial.

When experts give evidence about the accused’s capacity to follow the trial or to give instructions and the like, it will generally be for the parties to adduce such evidence as they feel is relevant. Now, a judge may, of course, descend into the arena, to clarify questions or answers, and within reason and showing appropriate circumspection, the judge may identify matters that, in his or her view, may be of concern to the jury. The overarching concern during that time should always be directed to whether the trial will be a fair trial. Now, from a lawyer’s point of view, one needs to tread carefully.

It is, I think, reasonable to suggest that in instances where the accused is charged with very serious criminal offending, then issues of fitness and indeed mental impairment or insanity will usually be put forward and litigated.

The spectacle of a person being tried and severely punished for something they cannot understand or for actions for which they did not have the requisite guilty mind is unedifying, to say the least. And my respectful suggestion would be that that should be avoided. But the situation, you might think, might be different where the accused is charged with less serious criminal offenses. In those circumstances, there may be a possibility that the accused will be ordered to be subject to psychiatric and judicial supervision in a mental health facility or alternatively in the community for a length of time that’s disproportionate to the crime committed.

In other words, the lawyer has to consider whether a finding of unfitness or mental impairment sanity may be more damaging to the client’s interests than being dealt with through the ordinary criminal processes.

So that consideration is a live one where the offense is less serious than in the case of serious criminal offending, however, there will usually be little choice but to raise these issues. So that’s all I wanted to say about fitness for present purposes and in my next presentation, I want to talk about mental impairment.

Thank you for your attention.