Mental Impairment Defence and Unfitness to Stand Trial – The Process

There are two separate issues, each of which has been dealt with in a separate blog:

  1. Fitness to commit the offence; and
  2. Fitness to stand trial.

As the process is the same for each, the two separate issue will be dealt with together here and referred to as a mental fitness defence.

For the purposes of a mental fitness defence, the elements of the offence are divided in to two categories:

Objective elements, or what actually occurred; and

Mental elements, or whether the defendant was fit to commit the offence or is fit to stand trial.

A mental fitness defence relates to the second of these categories.

An accused is presumed not to have a mental fitness defence for the offence(s) they have been charged with.

An investigation into a mental fitness defence may be ordered by the Court of its own initiative, or on the application of prosecution or defence.  The Court can require some supporting information to suggest there is an issue related to mental fitness before embarking on an investigation.

Because a defendant who has issues of mental fitness is often unable to provide proper instructions to their lawyer about that issue, lawyers are given an independent discretion to act in their client’s best interests.

The usual process is that either the defence or the court will obtain a report or reports from an expert, usually a psychiatrist, into the defendant’s mental fitness.

If upon considering the report(s) the prosecution is satisfied that a mental fitness defence is available then they will concede the point and the court does not need to conduct a further investigation on that issue.

The court still needs to determine whether the person did in fact commit the acts alleged against them.  Often this is done by defence counsel admitting the objective elements on behalf of their client; however, on occasions there are hearings solely about the objective elements.

If a defendant is found to have a mental fitness defence and have committed the objective elements of an offence, they are declared liable to supervision.  This is dealt with below.

If prosecution do not concede a mental fitness defence or the defendant does not admit the objective elements of the offence then the matter proceeds to a hearing.  A defendant has the same right to have these issues determined by a jury as they do if the issue of a mental impairment defence had not been raised.

The Court has a discretion to proceed first either with the question of the mental fitness defence or with the objective elements.  Usually the court will proceed first with the question of mental fitness, because if found to be established the need for a trial on the objective elements often disappears.  However, there can be certain circumstances where it is appropriate to proceed first with the objective elements, for example where the issue is whether a person was in possession of a controlled drug and the evidence will not be contested.

Usually the trial on mental fitness will proceed by the defence calling experts who have assessed the accused.  These experts are then cross-examined by the prosecution and the prosecution may also call their own experts who have assessed the defendant.

Ultimately, regardless of the opinion of the experts, it is a matter for the court as to whether a mental fitness defence is made out, though of course the court has due regard to expert opinions.

If an accused is found to have committed the object elements but is not guilty or not able to be tried because of a mental fitness defence, then the defendant is declared liable to supervision.

The court then orders reports as to the defendant’s prognosis and treatment plans and the attitudes of their next of kin and the victim.

The court then sets a limiting term, that is how long the person should be subject to the supervision order.  This limiting term is the same length as the sentence of imprisonment the court would have imposed had the defendant not had a mental fitness defence.

Having set the limiting term, the court then determines what the conditions of it should be.  They can range from detaining the person in a secure mental health facility to some very minor form of supervision.  In determining the terms of the supervision, the court is to give primary consideration to the safety of the community, but this must be weighed against the fact that the person has not been convicted of a crime and we do not punish people for being sick.

Once set the terms of the supervision are not final.  A person under supervision, or the prosecution, or certain other parties can bring an application to the court to amend the terms of the supervision.  This allows the court to make amendments in accordance with any changes in the accused prognosis and also ensure that where possible a person will not go from being detained 24 hours a day to being released into the community without supervision or supports.

The Act seeks to strike a balance between the need to protect the community from those who commit acts which constitute criminal offences against the principle that we do not punish people because they have an illness.



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