Fitness to be Tried

Paper by Mark Ierace SC, Senior Public Defender presented at the University of NSW Law Faculty CLE/CPD day, 5.11.10

Introduction

The broad issue of fitness to be tried is too extensive to be covered in one brief paper, so I intend to focus on three aspects which you are most likely to encounter in criminal practice, and a fourth aspect that, although not common, is not easily researched.

The three aspects that are likely to be most useful are: determining whether a client is unfit, what diversionary measures are available in the Local Court, and the issue of fitness in the Local Court. The fourth aspect is what to do when a client who you suspect is unfit forbids you from raising fitness, or more generally when a client with an underlying mental impairment, although satisfying the fitness test, appears to be giving instructions contrary to their own interests.

Determining whether a client may be unfit

In this section I will start with an understanding of the nature of unfitness, typical underlying issues that may give rise to it, and what you can and should do to clarify whether there is a fitness issue that you need to raise with the court.

Unfitness to be tried, or as it is sometimes known, unfitness to plead The terms are not precisely interchangeable, but are usually both used to refer generally to fitness., is a term that denotes that a defendant or accused is unable to fairly partake in the trial (or Local Court hearing) process. Fitness is concerned with the accused's ability to partake in a trial, not his or her mental condition at the time of the offence. There may be particular defences available to the accused in relation to their mental illness or intellectual disability in that regard, such as the insanity defence. See s. 39, Mental Health (Forensic Provisions) Act 1990 (NSW).

In NSW it is a common law test, most conveniently set out in the Victorian decision of R v Presser [1958] VR 45. In that case, during an exchange with the Bar table, Justice Smith was recorded as stating the following, which has since been held by the High Court Kesavarajah v The Queen per Mason CJ, Toohey & Gaudron JJ, Dawson & Deane JJ agreeing, at pps. 245, 246. to state the essence of what is required in order for a defendant or accused to be fit at common law (at page 48):

Certain mental conditions have been recognised as capable of causing unfitness, including mental illness and an intellectual disability. In this paper I will refer to *mental impairment* as the generic term encompassing those two and other such conditions. To give simple examples in relation to the first two conditions, a person suffering paranoid schizophrenia who is hearing voices may be so distracted as to be unable to follow the evidence, or at least to distinguish between the evidence and what he or she believes the voices are saying. A person with an intellectual disability may be incapable of understanding abstract concepts; their comprehension may be limited to concrete notions, so that they are unable to understand much of what is being said by witnesses, even with the help of careful explanation.

If you suspect that your client may be unfit, you need to obtain a report addressing that issue from a forensic expert. In the case of a mental illness, a psychiatrist is appropriate, and in the case of a person with an intellectual disability, a psychologist. But how do you know if a client may be unfit?

Most mentally ill accused come with a history of mental illness, so that it is brought to the attention of their lawyer at the outset. Often the alleged crime is the first public indication of the mental illness, and the client has had some treatment in the prison system, as a result. If not, a client's mental illness may be detected by you; often the fact of the mental illness is central to understanding the alleged criminal behaviour. Mental illness is sometimes associated with bizarre or at least highly unusual behaviour; an unprovoked attack on a stranger with an odd oral justification being offered to the police, or perhaps manic behaviour, and so on. Sometimes it is necessary to tease out the impact of drugs and/or alcohol on the accused, in order to determine to what extent mental illness, and not the other, perhaps transient, factors affect the accused.

It is not so easy with an intellectual disability. Many defendants or accused with an intellectual disability have not been previously identified as such, and there is nothing at all about their behaviour to suggest it. Indeed, persons with an intellectual disability may be adept at deliberately covering up their disability, having learned painfully that it is not in their interests to be identified by strangers as *dumb*.

So how do you determine whether a client may have an intellectual disability, particularly since many clients are poorly educated? A client with an intellectual disability is likely to mask the fact by giving simple *yes/no* responses to questioning. At some point during a conference, ask the client to explain back to you in their own words an abstract piece of advice that you have given them. If this is not done satisfactorily, try again with a different piece of abstract advice. If they do not comprehend the essence of the advice, obtain a psychological assessment. I urge you to do this will all clients who fail this simple test, without exception. Many clients with an intellectual disability have gone right through the criminal justice system with no-one being the wiser. If the client does not have English as a first language, make sure that you carry out your test with an interpreter. An example where the absence of an interpreter contributed to an inaccurate assessment of an accused's intellectual capacity is R v Tuigamala [2006] NSWCCA 380.

A rough guide to levels of intellectual disability in IQ terms is as follows, the norm being an IQ of 100: These ranges are taken from the DSM-IV.

The terminology is quite misleading; a mild or moderate degree of intellectual disability is, in fact, quite severe.

Professor Eileen Baldry from the University of NSW recently carried out a study of some 680 prisoners in NSW prisons who have an IQ of less than 70 (being a person with an intellectual disability). Only 23% (156) were clients of the relevant NSW government agency (the NSW Dept of Ageing, Disability and Home Care: *DADHC*), and of those, 79% (123) were first diagnosed in prison. Therefore only 33 of the 680 prisoners with an intellectual disability had disability services prior to their imprisonment.

The identification of a client's intellectual disability is important for other issues, beyond fitness; whether their ERISP is admissible, whether they are a competent witness under the Evidence Act, and it may have ramifications for their sentence. An offender whose intellectual disability or mental illness contributed to their commission of the offence may warrant a lesser sentence, partly because general deterrence is not to be given the same weight. See for example R v Engert (1995) 84 A Crim R 67 (NSW CCA) and R v Way [2004] NSWCCA 131 per the Court at [86] where the disability is causally related to the commission of the offence, and subject to issues of the protection of society.

A final few words on unfitness: it is not confined to psychiatric or psychological issues. As our population becomes older, we are likely to encounter what I call medical unfitness; that is, accused who cannot fairly partake in a trial process because of a physical disability, such as a poor heart condition.

Local Court charges; diversionary measures

There are legislative provisions for diversionary options that are frequently applied to defendants with an intellectual disability or mental illness in the Local Court. These are sections 32 and 33 of the Mental Health (Forensic Provisions) Act 1990 (NSW) (*the MHFPA*).

Section 32

If, at any stage of proceedings, *it appears to the magistrate* that the defendant has an intellectual disability, mental illness or other mental condition for which treatment is available in a mental health facility, and *on an outline of the facts alleged in the proceedings or such other evidence as the Magistrate may consider relevant, it would be more appropriate to deal with the defendant in accordance with the provisions of this Part than otherwise in accordance with law*, then the magistrate may dismiss the charge and discharge the defendant unconditionally or subject to conditions set out at s.32(3). A failure by the defendant to comply with conditions within 6 months of discharge may result in the magistrate dealing with the charge as if the defendant had not been discharged.

Section 33

Section 33 applies to defendants who satisfy the definition of a *mentally ill person* in the Mental Health Act 2007, s. 3, MHFPA. which appears at section 14 of that Act. The essence of that definition is that there are reasonable grounds for believing that, as a consequence of mental illness, the person requires care, treatment or control in order to protect that person or others from serious harm.

In such circumstances, the magistrate may order that the defendant be detained in a mental health facility for assessment, or discharge the defendant into the care of a responsible person, either unconditionally or subject to conditions. The magistrate also has a power to order a community treatment order; s. 33(1A), which subjects the defendant to compulsory treatment in the community.

The charge which gave rise to the proceedings are automatically dismissed after 6 months of the matter is dealt with, pursuant to s. 33 (s. 33(2)).

Section 32 (1): 'It appears to the Magistrate'

The provisions may be applied whether or not a plea has been entered; Perry v Forbes NSW SC 21.5.93 (unreported). The magistrate is to have regard to the seriousness of the alleged offence in determining whether to apply s. 32; DPP v Sami El Mawas [2006] NSWCA 154. The magistrate must make *a positive finding of fact* that the section be applied; Confos v DPP [2004] NSWSC 1159 at para 16. The magistrate cannot make orders that purport to bind the Crown to provide particular services to the defendant; Minister for Corrective services v Harris NSW SC, Brownie J, 10.7.87 (unreported).

How to run a fitness hearing

District and Supreme Courts

In the District and Supreme Courts, there is a legislative scheme of procedure for fitness hearings. That procedure, and the consequences of a finding of unfitness, is set out in Part 2 of the MHFPA, sections 4 to 30.

The essence of that scheme is an issue of fitness may be raised at any time during the course of a hearing, although preferably before arraignment (s.7(1)), on more than one occasion (s.7(2)), and by any party to the proceedings or by the Court (s.5).

A fitness inquiry is to be conducted unless the Court is of the opinion that, assuming the person was found guilty, then having regard to the trivial nature of the charge or offence, the nature of the person's disability or any other matter that the Court thinks proper to consider, it would be inappropriate to inflict any punishment (s. 10(4). This provision is rather useless, since it has been held that only an unconditional discharge pursuant to section 10 of the Crimes (Sentencing Procedure) Act 1999 would meet the test of *any punishment*; even the degree of punishment implicit in the recording of a conviction would exclude consideration of the section. Newman v R [2007] NSWCCA 103.

At a fitness inquiry a person's unfitness is to be determined on the balance of probabilities (s.6),the onus is not to rest on any particular party (s. 12(3)), it is not to be conducted in an adversary manner (s.12(2)), and it is to be determined by Judge alone (s.11).

If the person is found fit, the proceedings continue normally (s.13). If found unfit, the person is referred to the Mental Health Review Tribunal (*the MHRT*) which, amongst other matters, must determine whether the person is likely to become fit within 12 months (s.16(1)). If so, the matter is adjourned, in anticipation of the normal procedure continuing when the person is found to be fit in due course (s.17). If not, the matter comes back to court for a *special hearing*, which is intended to determine whether, on the limited evidence available, the person committed the crime charged (s.19). The special hearing is to be conducted *as nearly as possible as if it was a trial of criminal proceedings* (s.21(1). In EK v R [2010] NSWCCA 199 the Court held that s. 306I of the Criminal Procedure Act 1986, which provides for the testimony of a complainant from an earlier trial may be tendered in a special hearing, as if it was a normal trial. If, on the limited evidence, the accused is found to have committed the crime, then the judge must determine whether, had it been a normal trial, a sentence of imprisonment would have been handed down. If so, the judge must indicate what the total sentence would have been s. 23). That is known as the limiting term, and denotes the maximum period that the accused may be detained, although they may be released earlier than that time, if in the opinion of the MHRT they do not pose a danger of serious harm to themselves or others.

The Local Court: Summary Hearings

There are no legislative provisions for defendants in the Local Court in respect of whom there is a fitness issue, so the common law applies, although there is no impediment to the magistrate simply proceeding via sections 32 or 33 of the MHFPA if the defendant is suspected of being unfit; Mackie v Hunt (1989) 19 NSWLR 130. However, sometimes the magistrate is entitled to not utilise these sections, for example where the defendant has previously had their benefit and not complied with conditions, or where the charges are regarded by the magistrate as being too serious. What then is to be done?

At common law, there must first be a determination of fitness. If the defendant is fit, the matter proceeds normally. If the magistrate concludes that the defendant is unfit, the defendant must be discharged.

In Mantell v Molyneux [2006] NSWSC 955, Adams J stated [28]:

If you have a report that your client is unfit, serve it on the prosecution, and make your client available to be interviewed by the prosecution's expert.  A word on reports. When you request a report from a forensic expert, ask that the expert not canvass the alleged circumstances of the offence, if possible; sometimes it is not. Similarly, when you advise the prosecution that your client is available to be examined by their forensic expert, put in writing that the waiving of privilege does not extend to questioning by the expert of those circumstances. Sometimes it is unavoidable, for example, where the only issue of fitness is whether the defendant/accused is capable of putting their version of events, but so far as is possible, this should be avoided, so that if your client is found fit, the history given in the report as to the offence is not used against him or her at a subsequent hearing and/or sentence proceeding.

You may need to seek an adjournment until the reports are obtained. When both reports are at hand, the magistrate can then set the matter down for a hearing to determine fitness. If there is a contest as to whether the defendant is unfit, seek a date suitable to both experts.

It is often helpful for the solicitor to give evidence, or at least provide a statement to the forensic expert taken from their conference notes, to contribute to their report, and in so doing waiving privilege to that limited extent. This is often powerful evidence of the defendant's inability to comprehend relevant matters, or the intervention of psychotic thinking. If you are the solicitor, you may need to brief counsel for the fitness hearing, so that you can give this evidence.

The Local Court: Committals

Fitness is a relevant consideration in committals, but it is expressly excluded from Part 2 of the MHFPA (s. 31). In committal proceedings, if you have a report that your client is unfit, you have a choice; either raise it in the Local Court, in which case if the magistrate is satisfied that your client is unfit the committal will be suspended and, subject to other considerations your client may be the subject of an ex officio indictment, or proceed as best you can until the matter is referred to the District or Supreme Court, and raise it there, in which case it will be dealt with according to the MHFPA. The first course is likely to be preferable in cases where the defendant would benefit from a testing of the evidence at committal.

The practice presently deployed by practitioners of not raising fitness before or during a committal, so that an unfit client does not lose the benefit of one, is a practical measure, subject to the ethical issue of whether the practitioner is obliged to raise the issue, given that there is authority that it is likely that a committal in NSW cannot occur with an unfit defendant. R v Mailes [2001] NSWCCA 155, per Wood CJ at CL (Spigelman CJ and Greg James J agreeing) at para 161, finding that the decision of the High Court in Ebatarinja v Deland [1998] HCA 32 had *potential relevance* to a committal in NSW.

What if the client does not want to raise fitness?

It is my view that if you have a reasonable concern that your client may be unfit to be tried, but your client instructs you to not obtain a report or alert the court to the issue, your obligations as an officer of the court override your duty to your client; you must inform the court of the existence of a fitness issue, even if your instructions have been withdrawn.

The former Chief Justice of the Supreme Court of the ACT, the Honourable Jeffrey Miles QC, recently completed an inquiry into issues of fitness concerning David Eastman. Eastman was convicted in 1995 of having murdered the ACT Assistant Police Commissioner, Colin Winchester, in 1989. Following his conviction, he argued that he had been unfit, that the prosecution was aware that he was likely to have been unfit, and that they had a duty to raise the matter with the court, and accordingly he was entitled to a retrial. The underlying mental condition was a mental illness. The High Court rejected the application (Eastman v R [2000] HCA 29), but the ACT government established the inquiry into Eastman's fitness during his trial.

In his Report (*the Eastman Report*), See recommendation of Miles CJ at vol. 1, para 289 of: Inquiry under s 475 of the Crimes Act 1900 into the matter of the fitness to plead of David Harold Eastman, published 6 October 2005 in 2 volumes. Miles noted that counsel who had appeared for Mr. Eastman at his trial at one point had been concerned as to his fitness, but did not inform the Court, on Mr. Eastman's instructions. Shortly afterwards counsel's instructions were withdrawn. In his report, his Honour expressed the view that counsel has a duty to the Court to raise a fitness issue, which continues even if their instructions are withdrawn. I agree with this view. He added that professional rules should be amended to provide guidance for such situations, and if this does not occur, legislation should be considered.

What if your fit but mentally impaired client gives instructions as to the conduct of the trial which appear not to be in his or her best interests?

What if your mentally impaired client, who is otherwise fit, gives instructions as to the conduct of the trial which appear not to be in his or her best interests? The way in which this issue sometimes arises is that a client with a mental impairment, usually a mental illness or personality disorder, is charged with a serious offence and has available sufficient evidence (sometimes overwhelming) to raise the insanity defence, but instructs counsel to not do so. The client satisfies the Presser test, but the lawyer suspects that the mental illness is nevertheless distorting their thinking to the extent that, if it was not for the mental illness, they would permit their counsel to raise the insanity defence as an option before the court.

This is a vexed issue, and it is unclear whether at common law it is a fitness issue.

There is some doubt that the Presser test permits a court in a fitness hearing to have regard to the capacity of a mentally disordered accused to rationally make trial-related decisions, although there is at least one recent decision that suggests that it is, R v JH [2009] NSWSC 551.and the NSW Law Reform Commission appears to be of that view. NSW LRC Consultation Paper 6: People with cognitive and mental health impairments in the criminal justice system: criminal responsibility and consequences, Jan 2010, para 1.16: *The [Presser] standards are articulated in terms that are capable of allowing courts to take into account, in determining the defendant's understanding or capacity, his or her ability to make rational decisions in relation to participation in the trial proceedings'. In Presser, Smith J appeared to clearly rule out as a fitness consideration the capacity of an accused with a *mental defect* to make an *able*defence, although he did not elaborate on that term:

One might infer that the uncontroversial element of the Presser test that: 'he needs to be able to plead to the charge' implies that it is an informed plea, and similarly that the accused's choice of defence, referred to in the above passage, is also a considered, and prima facie reasonable choice. However, this may not be so. Firstly, it is at odds with Smith J's express rejection of this notion. In Ngatayi v R, Gibbs, Mason & Wilson JJ referred to this passage and said: ibid fn 8, at para 8.

Secondly, in Eastman v The Queen [2000] HCA 29, Gleeson CJ noted with approval four propositions as to fitness from a judgement of the Ontario Court of Appeal, one of which was that:

Gleeson considered that: ** each of the above propositions are sound, and they are consistent with the [ACT] statutory test.* at para 27. That statutory test effectively reproduced the Presser standard. the statutory test is set out at para 23. Miles CJ, in the Eastman Report, also was of the view that the ACT statutory test was incompatible with a consideration of whether an accused was capable of *a rational decision to act in his best interests.* Eastman Report, Vol. 1, para 248. Although Gleeson CJ's observations were not adopted by the other members of the Bench in Eastman, they were cited with approval by the NSW CCA in R v Rivkin [2004] NSWCCA 7. at para 302 of the Court's judgement. There is also English authority to the same effect. R v Robertson [1968] 3 All ER 557. Court of Appeal. The judgement of the court (by Lord Parker CJ) was to the effect that the mere fact that the accused was not capable of making trial-related decisions in his own best interests was not a reason in itself for unfitness.

In the case of the Ontario Court of Appeal from which Gleeson CJ drew the propositions, R v Taylor, R v Taylor (1992) 77 CCC (3d) 551. the Court considered a submission that an accused who was suffering from paranoid schizophrenia was unfit '... on the basis that the accused ... suffered from delusions so pervasive and irrational that he was 'unable to perceive his own best interests and how those interests should be addressed in the course of a trial''. ibid page 566. The Court rejected the submission:

This passage conveniently states the obvious counter-argument to introducing into the Presser test a consideration of the capacity of the accused to provide sensible instructions, particularly as to whether to plead, and if not, what defences, if any, are to be run.

My view is that if you come across such a problem, you should run it. It is an issue that requires clarification by appellate review.

Mark Ierace SC
Senior Public Defender
Carl Shannon Chambers
2 November 2010

Section 32, MHFPA

32 Persons suffering from mental illness or condition

(1) If, at the commencement or at any time during the course of the hearing of proceedings before a Magistrate, it appears to the Magistrate:

the Magistrate may take the action set out in subsection (2) or (3).

(2) The Magistrate may do any one or more of the following:

(3) The Magistrate may make an order dismissing the charge and discharge the defendant:

(3A) If a Magistrate suspects that a defendant subject to an order under subsection (3) may have failed to comply with a condition under that subsection, the Magistrate may, within 6 months of the order being made, call on the defendant to appear before the Magistrate. (3B) If the defendant fails to appear, the Magistrate may:

(3C) If, however, at the time the Magistrate proposes to call on a defendant referred to in subsection (3A) to appear before the Magistrate, the Magistrate is satisfied that the location of the defendant is unknown, the Magistrate may immediately:

(3D) If a Magistrate discharges a defendant subject to a condition under subsection (3), and the defendant fails to comply with the condition within 6 months of the discharge, the Magistrate may deal with the charge as if the defendant had not been discharged. (4) A decision under this section to dismiss charges against a defendant does not constitute a finding that the charges against the defendant are proven or otherwise.

(4A) A Magistrate is to state the reasons for making a decision as to whether or not a defendant should be dealt with under subsection (2) or (3). (4B) A failure to comply with subsection (4A) does not invalidate any decision of a Magistrate under this section.(5) The regulations may prescribe the form of an order under this section.

Section 33, MHFPA

33 Mentally ill persons

(1) If, at the commencement or at any time during the course of the hearing of proceedings before a Magistrate, it appears to the Magistrate that the defendant is a mentally ill person, the Magistrate (without derogating from any other order the Magistrate may make in relation to the defendant, whether by way of adjournment, the granting of bail in accordance with the Bail Act 1978 or otherwise):

(1A) Without limiting subsection (1) (c), at the commencement or at any time during the course of the hearing of proceedings before a Magistrate, the Magistrate may make a community treatment order in accordance with the Mental Health Act 2007 for implementation by a declared mental health facility in relation to the defendant, if the Magistrate is satisfied that all of the requirements for the making of a community treatment order at a mental health inquiry under that Act (other than the holding of an inquiry) have been met in respect of the defendant.

(1B) The provisions of the Mental Health Act 2007 (other than section 51 (1) and (2)) apply to and in respect of the defendant and that order as if the order had been made by the Tribunal under that Act. (1C) A Magistrate must, before making an order under subsection (1A), notify the Director-General of the Department of Health, or a person authorised by the Director-General of the Department of Health for the purposes of this section, of the proposed order.

(1D) If, at the commencement or at any time during the course of the hearing of proceedings under the Bail Act 1978 before an authorised officer, it appears to the authorised officer that the defendant is a mentally ill person, the authorised officer (without derogating from any other order under the Bail Act 1978 that the officer may make in relation to the defendant):

(2) If a defendant is dealt with at the commencement or at any time during the course of the hearing of proceedings before a Magistrate or authorised officer in accordance with this section, the charge which gave rise to the proceedings, on the expiration of the period of 6 months after the date on which the defendant is so dealt with, is to be taken to have been dismissed unless, within that period, the defendant is brought before a Magistrate to be further dealt with in relation to the charge.

(3) If a defendant is brought before a Magistrate to be further dealt with in relation to a charge as referred to in subsection (2), the Magistrate must, in dealing with the charge, take account of any period during which the defendant was in a mental health facility as a consequence of an order made under this section. (4) The fact that charges are to be taken to have been dismissed under subsection (2) does not constitute a finding that the charges against the defendant are proven or otherwise.

(4A) A Magistrate is to state the reasons for making a decision as to whether or not a defendant should be dealt with by an order under subsection (1) or (1A). (4B) An authorised officer is to state the reasons for making a decision as to whether or not a defendant should be dealt with by an order under subsection (1D).

(4C) A failure to comply with subsection (4A) or (4B) does not invalidate any decision of a Magistrate or authorised officer under this section.

(5) The regulations may prescribe the form of an order under this section.

(5A) An order under this section may provide that a defendant:

(6) In this section, a reference to an "authorised officer" is a reference to an authorised officer within the meaning of the Criminal

Procedure Act 1986.

Section 36 MHFPA

36 Means by which Magistrate may be informed

For the purposes of this Part, a Magistrate may inform himself or herself as the Magistrate thinks fit, but not so as to require a defendant to incriminate himself or herself.

Section 14, Mental Health Act, 2007

14 Mentally ill persons

(cf 1990 Act, s 9)

(1) A person is a mentally ill person if the person is suffering from mental illness and, owing to that illness, there are reasonable grounds for believing that care, treatment or control of the person is necessary:

(2) In considering whether a person is a mentally ill person, the continuing condition of the person, including any likely deterioration in the person's condition and the likely effects of any such deterioration, are to be taken into account.