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Fitness to be Tried in Superior Courts

 

A paper by Chris Craigie, SC

Review of Concepts and Terms :

There are a number basic propositions, long established in our justice system which relate to proper forensic assessment of mental health and levels of intellectual functioning in accused persons. These propositions relate to persons fitting into one or more classic, but often overlapping categories . There is sometimes confusion about such terms as - unfit ',' forensic patient ',' not guilty by reason of mental illness - and simply 'guilty'[ but with substantially reduced culpability because of a mental illness ]. These terms arise from the following seminal propositions of principle that assume that, as a prerequisite to be subjected to conventional legal processes, an accused person must be :

1. Fit to stand trial , ie. in a state which is accepted by the law as being adequate to permit a satisfactory level of participation in the curial process .
[ The word - adequate' with some deliberation as it will be seen that the notion of 'fitness' can in practice encompass mental states that fall well short of some commonly accepted notions of normality or , in some cases , sanity .]

2. If fit to stand trial : Tried on the basis that the onus of proof beyond reasonable doubt lies with the Crown and includes proof of a mental element of intending at some direct [ or more inferential and reckless] level to engage in the conduct or act constituting the offence alleged . This is a fairly trite restatement of the 'golden thread - , so described as running through the criminal law in Woolmington v DPP [1935] AC 462 at 481-482 .
Exceptions to the rule are mainly in that rare or sometimes trivial class of offence where Parliament has either placed an onus on the defence or has specifically excluded the requirement for a mental element to be proved .

3.If fit to stand trial , tried on the above basis and found to have committed the acts constituting an offence alleged. It also of course is open to the defence to raise a defence which raises a doubt as to whether by reason of - a defect of reason , from a disease of the mind, as not to know the nature and quality of the act he was doing; or if he did know it that he did not know that what he was doing what was wrong - , (the classic formulation R v M'Naghten's Case (1843) 10 Cl & Fin 200 at 210). In the Australian context the 'M'Naghten Rules' remain seminal and are supplemented by the High Court of Australia's formulation in R v Porter (1933) 55 CLR 182:

' A case of this description must turn very largely upon the jury's appreciation of what amounts to knowledge of the nature and quality of the act and it wrongness. For it is evident that a jury although satisfied that no capacity existed in a particular accused to reason at all may think that at the back of it all was an awareness of the fact that other people might regard it as wrong. That would not lead to a conviction if the jury understands that , given a disease, disorder or defect of reason, then it is enough if it so governed the faculties at the time of the commission of the act that the accused was incapable of reasoning with some moderate degree of calmness as to the wrongness of the act of comprehending the nature or significance of the act of killing'.
 
In addition to the traditional 'insanity' defence now more felicitously referred to as a 'mental illness' defence there are the more tendentious categories of putative defence which focus on an incapacity to possess requisite mental states, whether the incapacity flows from the ingestion of some substance or from some state which may fall into the now somewhat insecure category of non insane automatism. The latter topic is not to be analysed in detail here but I observe that there appears to be an interesting and disturbing line of authority that moves such conditions as epilepsy away from non insane automatism and into a potential category of - disease - or disorder more traditionally associated with the M'Naghten defence and perhaps carrying its indefinite custodial consequences , if successful. For a helpful discussion of the potential overlap of concepts between non insane and insane automatism see the judgment of Hunt J , as he then was in R v Youssef ( 1990 ) 50 A Crim R 1 at 5 . His honour also postulates the following formula for a jury where both voluntariness and mental illness issues exist. A jury is to determine:
'(1) Whether the Crown has established that the act causing death or injury (or whatever) was the act of the accused ;
(2) Whether the Crown has established that the accused knew what he was doing at the time (that is, that it was a voluntary act ) ; and
(3) Whether the accused established that he did not know what he was doing at the time (that is he was suffering from a mental illness )'
The interesting and disturbing implication of this formula is that the onus will shift in establishing the same facts , depending how one seeks to characterise it . His Honour discusses the situation in which a non-trauma occasioned, condition-permanent condition may fall into either category and highlights the need to consider and lead appropriate evidence of the origins of such conditions such as epilepsy].

4. If all the above stages have been contemplated and passed through the final stage at which the accused person's mental state is of relevance is in the contingency of a guilty finding or guilty plea . The now governing principle is that there are a variety of conditions which may fall short of providing an adequate defence but nonetheless weigh heavily in the sentencing process . The principle recognises that some persons are rendered unsuitable vehicles for the reflection of general deterrence in sentence [ see in R v Scognamilio 1991 56 A Crim R 81 R v Letteri N.S.W . CCA unreported 18 March 1992 and Rv Engert N.S.W. CCA unreported 20.11.95] . Balancing this apparently humanitarian and practical recognition that those who offend as a product of a mental state or incapacity are not likely to be deterred by condign punishments are the authorities that require a link between the condition suffered and the offence committed and the requirement also that a sentencing court have regard to dangerousness and protection of the community.
The above list is one of chronological progression in order to facilitate a grasp of the concepts in terms of application to a hypothetical individual at various stages in the disposition of a typical indictable matter wherein an individual committed for trial has shown signs which cause a court or his lawyers to consider issues relating to the accused's mental state .

Fit or unfit? the tests:To return to the main topic of fitness , the test outlined in R v Presser [1958] VR 45, per Smith J at 48 is that the accused needs to be
'up to certain minimum standards which he needs to equal before he can be tried without unfairness or injustice to him'.

The indicia of these standards are:
1. An ability to understand the basic nature of the charge.
2. An ability to plead to the charge and exercise a right of challenge.
3. An ability to generally understand the nature of the proceedings, ie that there is to be an inquiry as to whether the accused did what is charged with doing.
4. An ability to follow the course of the proceedings, although not in any sense requiring a particular competence in doing so, ie 'to understand what is going on in court in a general sense'.
5. An ability to understand 'the substantial effect' of evidence against him.
6. An ability to 'make his defence or answer the charge'.
7. An ability to instruct counsel in the sense of 'letting counsel know what his version of the facts is and, if necessary, telling the court what it is'.


It is notorious that within the framework of the fitness issue, one might find individuals who are intelligent, 'sane' but obviously unfit or, conversely, quite disturbed and psychotic but nonetheless fit to plead.

When to Raise the Fitness Question
It is preferable that at the first indication of a possible incapacity to meet one of the Presser elements the question should be addressed and the court alerted to a need to delay arraignment or trial. Procedures for bringing the fitness issue before the court vary, depending upon whether the matter has been raised before or after arraignment. Those varying procedures are to be found under s.81 (pre-arraignment) and s.9 of the Mental Health Criminal Procedure Act 1990. It should be noted that whilst either party may raise the question of fitness where it is to be raised by the defence prior to arraignment, a letter should be written to the prosecuting solicitor with carriage of the matter enclosing such medical and other material as thought appropriate and requesting that the prosecution approach the Attorney General seeking a determination that there should be a hearing under s.8(1). Ordinarily, there will be a counter-request from the prosecution seeking psychiatric examination. This is a matter for case by case judgement but, if it is accepted that the Crown may examine the accused, it is appropriate to make such examination conditional upon the examining psychiatrist not canvassing the issues of the alleged offence. (To prevent unfairness to accused)

Election for Determination of the Fitness Question by a Judge Alone
S.11A(1) permits the question of unfitness to be tried by judge alone if the accused so elects and the prosecutor consents. Even a client who has been placed under guardianship cannot delegate the making of the election, either for a judge alone fitness hearing or for any subsequent judge alone special hearing [see Public Guardian v Guardianship Board & Ors. No11 of 1997 NSW Supreme Court per Coram Hodgson J 16.5.97] . At first blush, this seems to raise a rather curious proposition that an accused person may be unfit to be tried but, nonetheless, capable of making a decision to have that issue determined by one type of tribunal rather than another. The Court of Criminal Appeal has addressed this somewhat anomalous situation in considering the case of Regina v Stephen Mifsud (unreported, 8 November 1995). Mr Mifsud was a man who, on all the evidence, appears to have been seriously ill with schizophrenia. He appealed against Judge Solomon's refusal to grant an application for trial by judge alone. S.11A(1) provides that
'A judge alone determination is available if 'the person (so) elects in accordance with the section and the judge is satisfied that the person, before making the election, sought and received advice in relation to the election from a barrister or solicitor''.

As Gleeson CJ observed:
'By hypothesis the section is concerned with the making of an election by a person whose fitness to be tried is in question because of some mental disorder. For such a person to make an effective election requires that the person understands what he or she is doing. The person must be able to understand what is involved in such an election'.

His Honour also noted that legal advice 'sought and received' did not mean that the accused had to take the initiative in obtaining advice. The essential question, it appears, was that 'the person should be willing to be advised on the matter and should understand the advice that is tendered'. The mere presence of a signed document from Mr Mifsud and medical reports outlining the nature of his psychiatric condition did not, in Judge Solomon's view, nor in that of the Court of Criminal Appeal, satisfy the minimum requirements of the section.
What may fairly be described as the Mifsud maze invites consideration of simple reform , perhaps by reversing the usual requirement and making a fitness hearing a matter for judge alone with an unfettered right to elect for a jury upon simple oral or written request in person or by counsel.

Overcoming the Mifsud maze
There will be cases where it is desirable to seek a judge alone hearing of the fitness issue. The most obvious reason is probably that some allegations are of such a nature that, particularly in what is sometimes a heated climate of populist justice, a particular jury may be tempted to perversely find an accused fit in order to 'make sure he doesn't get away with it'. Cases which fall into this category or where the psychiatric issues are clear and consistently supported by experts from both sides, lend themselves to judge alone hearings but the consent of the crown should not be presumed. A further note of qualification is required in order to avoid the difficulties outlined in R v Mifsud. For the most part, I would suggest that the election is more likely to be appropriate and valid when made by an informed but intellectually disabled person rather than a mentally ill person whose capacity to receive and retain even very basic information will always be suspect . Caution needs to be exercised in the case of each client category whether from the viewpoint of finding a capacity to receive and retain the information or from that of being able to do so without the distortions or delusions which may accompany a mental illness suffered by a highly intelligent client . I do not discount the possibility of the latter type of client making and adhering to an election but one has to be aware of risks that a delusional client may repudiate the election and some clients may simply forget making the election and become consequently distrustful of their lawyers. For my own part, I have seldom been sufficiently confident that a person suffering from a psychiatric illness has been capable of making the effective and simple election required under s.11A. I have had more confidence and success in approaching the issue where intellectually disabled persons are concerned: In two of my own cases, the R v Mifsud problems prior to a fitness hearing, (not to be confused with Special Hearing of which more is examined elsewhere in this paper ) have been avoided in the following fashion:
As the intellectually disabled client was in each instance familiar with courts , to the extent that he had been in prior difficulty with the criminal law, the experienced instructing solicitor was able to establish some rapport and communication on the simple basis that the client knew he was 'in trouble' and needed help. After a preliminary discussion in the presence of a parent, in one case and a long-term supervising social worker contact in the other, a simply worded letter advising election for judge alone was sent to the accused, care of the parent or social worker, who would then explained the options in the following very simple terms:
1. Confirmed that the client knew that he was in 'trouble'.
2. Confirmed that there was to be a preliminary hearing to find out whether the matter went any further on the basis that the accused might not be 'well enough' or 'clever enough'.
3. Confirmed advice already tendered that the solicitor was of the view that one person (i.e. the judge) would be preferred for this task rather than twelve persons, i.e. the jury.

 

In each case, the guardian or other supporter would both read out the letter and ask for its essence to be repeated back by the client, who would then be asked to confirm that he had understood both the choices and the advice and now wished to proceed according to the advice. In each case, evidence was called or available to the effect that the parent and social worker were satisfied that the accused was capable of making simple choices between given alternatives, eg to catch the bus rather than the train, to go to the corner shop not the supermarket, to wear a sweater not a T-shirt, etc. As each witness was able to state that there was a capacity to make such decisions on a limited but informed basis, the court was able to determine that there was a competent, although not sophisticated, decision made on the limited basis required. This certainly seems to be consistent with the purpose of the section under which parliament must be assumed to have contemplated a situation where a level of understanding sufficient to make a very simple choice could coincide with an incapacity to meet one or more of the Presser tests .

Apart from the two instances above I have also had matters where the process of advice and confirmation carried out and recorded by affidavit from an instructing solicitor , supported by a psychiatrist's affidavit to the effect that the simple advice as to options has been understood.

Procedures for Election
Although s.11A(6) contains provision for the making of rules of court with respect to the judge alone election at a fitness hearing, no such rules have been promulgated to this date. A consequence of this is that there is [notwithstanding the court's expectation that a form will be filed], as yet, no standard form of election document parallel to the normal trial election form under s.32(1) of the Criminal Procedure Act. It will should suffice to simply alter the usual judge alone trial form with the addition of the correct sections of the MHCPH Act and the attestation - In making this choice for a hearing of the question of my fitness to stand trial I have from sought, received and understood advice from...........[Solicitor]. It will be the obvious that the solicitor , not counsel gives the advice and thereby becomes a potential witness, although usually in practice not called. It is to be noted that, in the absence of formal rules, there is indeed no requirement for any particular form nor, in contrast to the requirements for trial or special hearing by judge alone, a requirement that the election be made at any particular time prior to hearing. Common sense would indicate that something in the nature of the form would nonetheless be filed in good time prior to the hearing.


A Note on Procedures relating to Fitness Hearings and subsequent Special Hearings :

Procedures under s.14 (to be employed after a finding of unfitness) must not be confused with those procedures to be followed after a subsequent Special Hearing under s.21(1). It should be borne in mind that bail may be granted after a fitness hearing but the provisions of the Bail Act do not apply after a s.21(1) special hearing (ie., a hearing as to whether the unfit accused has committed an offence). In some cases a palpably unfit person (particularly an intellectually disabled individual) remains on bail in the community or in a community facility throughout the processes of the fitness hearing , consequent Mental Health Review Tribunal consideration and subsequent Special Hearing . It is also possible for that person to remain in the community ( although at this stage not under the operation of the Bail Act ) after an adverse Special Hearing verdict (other than a finding of not guilty by reason of mental illness-which triggers automatic procedures for detention as a forensic patient ). Inquiries of the Mental Health Review Tribunal reveal that there have been to date been a number of individuals who have been through each of the above processes and have remained in the community, notwithstanding the imposition of a limiting term as the indicative sentence a judge has imposed pursuant to a special verdict of guilty. Power to leave the accused at liberty arises from s.24(1), wherein

'(a) Following the nomination of a limiting term, a judge must refer this person to the Mental Health Review Tribunal; and

(b) May make such order with respect to custody of the person, as the court considers appropriate.

A limiting term serves primarily as some assistance to the Mental Health Tribunal in determining further supervision of the offender it is also not a sentence in the conventional sense . No order as to custody leaves the accused at liberty, notwithstanding an indication of a period of imprisonment stated as a limiting term under s.23 as an indication of the sentence which would have been imposed had the accused been fit to be tried. In Regina v Malcolm Anthony Boyle (unreported, NSW CCA, 19 September 1997) Mathews J nominated a limiting term of three years imprisonment plus an accumulative one year but, notwithstanding the total limiting term of four years, declined to make an order with respect to custody with the result that Mr Boyle remained in the care of his wife. Her Honour also made it clear that the decision not to make an order with respect to custody was an indication to the tribunal that detention in a place other than a hospital or a prison would be appropriate. There is a further assistance from the District Court before Saunders DCJ where, in R v Ali Tass (Penrith DC, 17/2/95), a similar result was arrived at by the judge making an order with respect to custody but, again, in terms that left the accused at liberty in the community. That matter is presently under appeal, although it appears that the appeal arises from an issue not challenging the power to make such an order. I would think, on balance, that the more secure course was that of making 'no order as to custody', as adopted by Mathews J.

A Typical Chronology in District & Supreme Court :

1.EITHER PARTY , OR THE COURT [ s 5 Mental Health Criminal Procedure Act], RAISES A QUESTION AS TO THE ACCUSED's FITNESS [PREFERABLY BEFORE ARRAIGNMENT BUT CAN BE RAISED LATER, EVEN DURING A TRIAL AND MAY ARISE ON MORE THAN ONE OCCASION: S.7 MHCP Act ] .

2. a.[ IF RAISED BEFORE ARRAIGNMENT ] APPLICATION TO MADE TO A.G. FOR FITNESS HEARING S.8 (1) MHCP Act .
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b.[IF RAISED AFTER ARRAIGNMENT, PERHAPS DURING THE TRIAL ]
THE JUDGE IS TO DETERMINE IF THERE IS A FITNESS ISSUE , IN THE ABSENCE OF ANY TRIAL JURY ( S 9 ) AND ADJOURN OR TERMINATE THE MAIN PROCEEDINGS . THE TRIAL JURY MAY BE DISCHARGED AND ANOTHER JURY IS TO BE EMPANELLED FOR A FITNESS HEARING IF IT IS FOUND TO BE A QUESTION FOR DETERMINATION.

3. THE FITNESS ISSUE IS:
(A) TO BE TRIED ON THE BALANCE OF PROBABILITIES
(B) IS NON ADVERSARIAL IN NATURE
(C) MAY BE TRIED BY JUDGE ALONE [ WHERE APPROPRIATE AND THE ACCUSED IS CAPABLE OF MAKING AN ELECTION S. 11A]
4. 1 OR RECOMMENCE BEFORE A FRESH JURY ON ANOTHER DATE -BEING FIT IS NO BAR TO BEING FOUND NOT GUILTY ON THE GROUNDS OF MENTAL ILLNESS.

5. IF FOUND UNFIT ON THE BALANCE OF PROBABILITIES :
THE PROCEEDINGS ARE ADJOURNED FOR A DETERMINATION BY THE MENTAL HEALTH REVIEW TRIBUNAL WHICH WILL, AS SOON AS PRACTICABLE , CONDUCT A REVIEW ON THE BALANCE OF PROBABILITIES AS TO WHETHER THE ACCUSED WILL BECOME FIT WITHIN 12 MONTHS ( S.16 ).
6. IF THE ANSWER TO [5] ABOVE IS 'YES': THE TRIBUNAL MUST ALSO DETERMINE (S16 (2)(a)WHETHER THE ACCUSED IS SUFFERING FROM A - 'mental illness' or (b) 'a mental condition for which treatment is available in a hospital , whether or not the person objects to being detained in a hospital '.
THE COURT THEN RECEIVES NOTIFICATION WHICH EMPOWERS IT TO GRANT BAIL OR ORDER CONTINUED DETENTION IN A HOSPITAL , WITH OR WITHOUT CONSENT OF THE ACCUSED AND FOR A PERIOD NOT EXCEEDING 12 MONTHS .
(s 17 MHCP Act) .
7. IF THE ANSWER TO [5] ABOVE IS 'NO'[ I.E.. THE ACCUSED IS NOT LIKELY TO BECOME FIT WITHIN TWELVE MONTHS ] , THE TRIBUNAL THEN NOTIFIES THE A. G. WHO MAY DIRECT A SPECIAL HEARING OR TERMINATE PROCEEDINGS (S 18 ).

8. SPECIAL HEARINGS: These hearings are not to be confused with the preliminary fitness and subsequent Tribunal determinations . They in fact take the place or [and are intended to resemble as much as possible a criminal trial . As in the case of Fitness Hearings the accused may elect for trial alone , although how this is to be done and accepted in practice raises the first of a number of anomalies arising from the fact that the accused has by found 'unfit 'and is thereby presumably incapable of accepting advice or giving instructions . It may be theoretically possible that the 'unfit' client is capable of accepting a lawyer's services and giving certain basic instructions implicit in establishing the retainer . In my view the whole position of a lawyer in this situation is so problematical that one may be effectively limited to appearing and putting the crown to proof by every legitimate forensic technique available . The extreme example of the conundrum is represented by the client who at some stage has said [ and may continue to say to the lawyer 'I did it .'In the context of a Special Hearing this admission to the advocate or instructor could not have the status of instructions , any more than , say , an intimation [ for it can only be that , rather than an instruction ] that some nominated person had either committed the offence or was guilty of some misconduct to the prejudice of the accused in his hearing . The question - how do I challenge witnesses when I can only ask and not put ?'produces a number of very uncertain and unsatisfactory answers , the best of which is probably 'one does one's best !'In a practical sense the role of the advocate in a special hearing has strong elements of guardianship about it , with the
disadvantage that , one is not empowered to make decisions on the clients behalf other than choosing between various options that arise as one puts the Crown to proof in much the same way one might in appearing for a client at trial who has admit his guilt to you but accepts defending the matter within the narrow parameters ethically available in such circumstances .

9 AVAILABLE VERDICTS AT A SPECIAL HEARING :
[A] NOT GUILTY . AS IN A CONVENTIONAL TRIAL THE ACCUSED IS DISCHARGED AND FREE UNLESS SUBJECT OF SOME RESTRAINT INDEPENDENT OF THE PROCEEDINGS .
[B] NOT GUILTY ON THE GROUNDS OF MENTAL ILLNESS
[ THE ACCUSED THEN RETURNS TO THE STATUS OF FORENSIC PATIENT UNDER TRIBUNAL SUPERVISION , AS WOULD AN ACCUSED FOLLOWING THE SAME VERDICT IN A CONVENTIONAL TRIAL ]
[C] ON 'THE LIMITED EVIDENCE AVAILABLE , THE ACCUSED PERSON COMMITTED THE OFFENCE CHARGED '.(OR AN ALTERNATIVE CHARGE AVAILABLE ON THE EVIDENCE ) The available verdicts under s 22 MHCP Act have equivalent status to conventional acquittals but the 'qualified findings of guilt 'do not equate to convictions where a negative verdict is returned , notwithstanding that verdicts [ of having committed the offence ] are a bar to further prosecution [s 22 (3)(a)] , subject to the limited circumstances of s 28 , relating to the commencement of ordinary proceedings for the same facts at any time before the expiration of the limiting term , unless the person has been released from custody or discharged [ if a forensic patient ] Section 28 (3) provides for the taking into account of detention periods 'before , during and after 'a Special Hearing where the accused is subsequently convicted of substantially the same offence arising from the same facts .

Who is a Forensic Patient ?
Serving prisoners or accused persons who are diverted into the mental health system and through operation of orders by a Court , the responsible minister , the Governor in Council or the Chief Health Officer all come under the general heading . Orders bringing about forensic status arise in the following situations
1. The court has determined , after arraignment that a fitness issue arises and has remanded the accused in custody pending a fitness hearing s10(3)(c) MHCP Act .
2. The accused has been found unfit at a fitness hearing and the court has referred the matter to the Mental Health Review Tribunal for determination and refused bail s14 . MHCP Act ..
3. The accused is assessed as likely to become fit within 12 months and the court upon notification does not grant bail s 17(3) MHCP Act .
4. The accused found not guilty by reason of mental illness at a special hearing
[ on this contingency an automatic court order of detention under Tribunal supervision follows ].
5. The accused is subject of a 'qualified - guilty verdict at a Special Hearing (i.e.. was found to have committed the offence but as proceedings were a Special Hearing has not been convicted ) and an order is made as to custody in connection with the setting of a limiting term s 27MHCPAct.
6. The accused is found not guilty by reason of mental illness at an ordinary trial -an automatic order follows [ as in (4) ] S 39 MHCP Act .
7.A serving prisoner becomes mentally ill and under the provisions of s 97(1) of The Mental Health Act 1990 is transferred to a hospital .


Practical Considerations For Lawyers .
Occasionally the situation will arise where a lawyer will have doubts as to whether a client is fit to stand trial . Whilst a number of possibilities may arise from this situation , doing nothing or simply hoping that the client is fit , as the alternative is tortuous and inconvenient and unpredictable course , should not be numbered among them . A potentially unfit client may assert fitness or a wish not to have the issue raised but a lawyer who , may in reality be acting for a client incapable of instructing. Such a lawyer walks an ethical and moral razor's edge if the matter is suppressed or ignored . It is no part of a lawyer's duty to deliver up to the criminal justice system an individual whom the lawyer believes may well be incapable of participating in processes to which an accused person is exposed in a setting that assumes that the accused person is fit to stand trial or plead . It is certainly not the lawyer's function to decide whether the client is fit or not fit ; rather it is the lawyers function to identify existence of the issue and [ if it has any substance ] bring it to the attention of the court .
The fitness issue, once apparent, is not simply another tactical option.
To ask , as I have heard on occasion,'aren't we better off trying to prove the client fit?'evidences a fundamental error of approach to one's obligation to avoid having a potentially unfit person submitted as fit for exposure to the ordinary processes of criminal law.
If one is simply confronted by a disturbed , obviously mentally ill or intellectually disabled client , one should not assume that he or she is unfit but consider first whether you should be asking the classic R v Presser questions [ or simple derivatives thereof ] as a first step to determine whether the client's condition raises a real question of fitness . Most clients with any of the conditions mentioned should have psychiatric assessments in any event and one should be careful to select experts who are experienced in forensic issues and capable of assisting in your assessment of the client's capacity to instruct , receive advice and participate in a hearing . The client does not need to be intellectually capable of defending himself well but must meet the minimal standards of fitness . Fitness hearings are very much two lawyer proceedings if one is to have the benefit of possibly the most compelling expert ie. the lawyer who has or has not been able to obtain satisfactory instructions on the fitness issues . It is not always that the solicitor files an affidavit or is called in a fitness hearing, but it is wise for counsel to have the solicitor's evidence ready to supplement or meet evidence from both Crown and Defence experts . I specify 'counsel - without seeking to oust a solicitor advocate but recognising that representing a potentially unfit client is a two lawyer task , if only because one of the two is an 'expert' and a potential witness in the fitness inquiry. The solicitor's affidavit should be based on thorough notes of a conversation wherein the client is taken through the R v Presser questions in a clear fashion without any qualification, assistance or explanation . If client's answers turn out to be bizarre or unresponsive that is all the more reason to include them in the affidavit. The Crown usually seeks permission to examine the accused , this should only be granted on the basis of written permission from the defence which states that the issues of any alleged offence are not to be discussed with the client , unless of course , you seek to have a mental illness issue jointly considered at an early stage . I have rarely encountered a situation where the latter would be desirable , save for an instance where a client's capacity to withstand the rigours of a trial rested on whether unanimity of medical opinion could be arrived at , thereby considerably shortening any likely trial.
One should be careful not to regard a 'pass - in the Presser examination as necessarily conclusive of fitness. Many clients of some intelligence may pass the test, in the sense that they answer the formal questions rationally, but be subject to florid psychotic episodes that will render them incapable of participating in a trial. In such a situation an expert may assess the client as being at risk of being distracted by such symptoms as - hearing voices - or likely to react to his or her illness in such a an extreme manner as to distract and prejudice the tribunal of fact at trial. The essential task in the fitness hearing is to predict whether it is probable that the client will be able to participate in any forthcoming trial on the present indictment.


Which Experts Should One Call?
In simple terms if the history is one of psychiatric disturbance or illness there should be a psychiatric assessment . Where the history is one of intellectual disability a clinical psychologist should be retained as a bare minimum. Sometimes both a psychologist and Psychiatrist will need to be consulted, as the psychiatrist will need the results of psychometric testing by the psychologist as a source of basic information on IQ and other aspects of capacity. Except in the case of obviously intellectually disabled client [ where an IQ assessment is the most pressing need], if limited to a choice between one kind of expert or another I would opt for the Psychiatrist as having the particular standing and skills more likely to be accepted by the court . A client who has shown suicidal tendencies should be definitely seen by a Psychiatrist , whatever supplementary assessment is to obtained by a psychologist . Similarly any condition suspected as having an organic origin requires the medical base of psychiatric assessment.
Whichever discipline is selected one must obtain a report which directs itself to the issue of fitness specifically and not to matters related either to the alleged offence or any prospective defence . The expert should not be retained unless familiar with fitness issues and should be on call to give evidence if required [ this usually is not required where the hearing is before a judge alone and the experts are in agreement on the main issue]. If the client has been treated in the past authority to obtain medical records should be obtained or , if the latter is not possible , subpoenaed well before the hearing with photo-copy access in order to brief your expert[s] at the hearing. Sometimes the client will be undergoing on-going treatment in the prison hospital , their clinical notes and those of prior treating institutions should be obtained with a view to determining which of the treating doctors should be called. In a judge alone fitness hearing or special hearing it may be that there is a unanimity of medical opinion , even so reports alone should not be relied upon on the assumption that the judge will simply allow both sides to tender reports. In many instances that may be the approach adopted but the court should be extended the courtesy of at least having the doctors on call. In the case of a jury it will be exceptional to avoid calling the doctors, even if the judge approves of the rather tedious alternative of having lengthy reports read to the jury, in most cases a less than satisfactory course.
As a matter of reality one needs to be aware that psychiatrists and psychologists go in and out of fashion so far as judicial perceptions of credibility are concerned. Certainly, if unfamiliar with the area, ask around as to the reputation of practitioner-experts and be aware that even the best may have 'bad days' or have produced conclusions which were inconvenient for one side or another but nonetheless highly credible in the eyes of the court.

Note for the wary: In a recent District Court matter of R v Peter Malafouris a question arose as to whether there was a capacity to amend the indictment presented by insertion of an alternative count [ malicious wounding with intent to cause grievous bodily harm and addition to the original count alleging intent to murder ] at the fitness hearing when , at length the matter came on for a special hearing. Although the issue was not fully litigated when a permanent stay was sought the crown adjourned the matter for further consideration and advice from the Solicitor General . The crown , on reflection, accepted the analysis that there was no power to amend and that , if it was sought to do so the remedy was to lay a fresh indictment at a fresh fitness hearing. As it happened Mr Malafouris had become fit in the interim and was so found and subsequently acquitted on a verdict of not guilty be reason of mental illness . The object lesson is to carefully check that the indictment handed up at the fitness hearing remains the same indictment at a consequent special hearing which should arise from the Attorney General ordering a special hearing on advice that recites the same indictment . In Malafouris the Attorney was incorrectly advised that the accused had been charged with the amended indictment. The resultant section 18 direction by the Attorney was arguable defective as a result and there was , in any event no power in the court to hold a special hearing other than on the indictment as presented at the fitness hearing.
As a finding of unfitness is related only to the matter on the indictment presented
at the fitness hearing there is often a frustrating necessity to have further hearings. This is unfortunate and typically may occur when , for instance , an intellectually disabled person is alleged to have committed a series of perhaps near identical offences relating to complainants who emerge at different times . At present the only remedy is multiple hearings , unless there has been an initial finding on an indictment covering all matters , which may be to the prejudice of the accused. I understand that this and other matters are under further examination by the Criminal Law Review Division of the Attorney General's Department .

CHRIS CRAIGIE S.C.
Deputy Senior Public Defender
24/08/2004

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