OVERVIEW - APPEARING IN COURT
4.1 Chapters 4-10 of the Discussion Paper discuss the legal, procedural and practical problems faced by people with an intellectual disability, when they come into contact with the court system, whether as a defendant, a witness, or a victim. The issues are covered as follows:
- Chapters 4 and 5: the fitness of an accused to be tried, and the use of diversionary procedures in the Local Courts.
- Chapter 6: the competency of a witness to give evidence.
- Chapter 7: if a witness is competent, whether special procedures should be available to assist the witness to give evidence.
- Chapter 8: the reliability of the evidence of a person with an intellectual disability, whether as the accused or a witness, including consideration of confessions, corroboration, and the evidence of expert witnesses.
- Chapter 9: the use of specific sexual offences where the victim has an intellectual disability, and victim compensation.
- Chapter 10: the availability to the accused with an intellectual disability of criminal defences.
FITNESS: AN INTRODUCTION
4.2 One of the first issues facing an accused person with an intellectual disability is his or her fitness to be tried by a court. Under the common law an offender must be “fit to be tried”, that is, capable of participating in the court process, before he or she can be dealt with by a criminal court.1 It is not an accused’s fitness at the time of the offence which is relevant, but at the time of the trial. Intellectual disability is one of many factors which may affect a person’s ability to comprehend the court process, to give instructions to lawyers and to give evidence in court. Other such factors include age, mental illness and some physical disabilities. The current regime for dealing with fitness to be tried in New South Wales came into operation on 22 August 1986 as a parcel of amendments to the Crimes Act 1900 (NSW) and the enactment of part of the Mental Health Act 1983 (NSW). The New South Wales Mental Health Review Tribunal (the “Tribunal”) was also established in 1986 to provide, amongst other things, expert assistance to the courts in this area. Although the regime is largely unchanged, following the repeal of the Mental Health Act 1983 (NSW) and amendments to the Crimes Act it is now governed by the Mental Health (Criminal Procedure) Act 1990 (NSW) (the “MHCP Act”) and the Mental Health Act 1990 (NSW), which both came into force on 3 September 1990. The two Acts contain a complex series of procedures to attempt to deal fairly with the accused’s possible unfitness.
4.3 The number of cases involving fitness hearings is relatively small: the Office of the Director of Public Prosecutions was involved in only 8 special hearings and 21 fitness to plead matters in the period from November 1990 to March 1992, compared to 3552 trials disposed of in the 1990-91 financial year.2 Between April 1992 and 16 March 1994 there were 64 fitness hearings and only four requests for special hearings.3 It is likely, however, that the issue of fitness is not identified or raised in every case where it is appropriate,4 particularly when defendants plead guilty.5 The procedure to be followed in such cases differs depending on whether the matter is to be heard in the Local Courts (see Chapter 5) or alternatively in either the Supreme or District Courts. The procedures used in both the Supreme and District Courts form the subject of this chapter.
What makes a person fit to be tried?
4.4 The new statutory regime does not define fitness to be tried, so the courts must rely on the common (or judge-made) law. The rationale for questioning a person’s fitness to be tried is fairness to the accused, though case law does not specifically refer to fairness.6 One of the most often quoted cases in relation to what comprises fitness to be tried is R v Presser, where Smith J of the Victorian Supreme Court set out a list of “minimum standards” to demonstrate the accused’s fitness, though he commented that the test should be applied in a “reasonable and commonsense fashion”.7 These can be summarised as the ability of the accused:
- to understand what s/he is charged with;
- to plead to the charge and to exercise his/her right of challenge to jurors;
- to understand generally the nature of the proceedings;
- to follow what is going on in court in a general sense (though not necessarily the purpose of court formalities) and to understand the substantial effect of any evidence given against him/her; and
- to decide what defence s/he will rely upon, and make this and his/her version of facts known to the court and his/her counsel. (The accused need not, however, understand court procedure and need not have the mental capacity to make an able defence.)8
However, it is unclear whether all these requirements need to be established before the accused is found fit.9
4.5 The Presser test was endorsed by the Victorian Law Reform Commission.10 However, some bodies have expressed their concerns about the practical application of the test as it affects people with an intellectual disability, for instance the Victorian Intellectual Disability Review Panel (the “Review Panel”). The Review Panel referred to:
the possible danger of too readily dismissing the person’s capacity to comprehend, and ... the subjective nature of determining the extent to which the person may satisfy the Presser criteria. It also fails to consider that the person may benefit from assistance or tutoring, in order to better understand the proceedings. Recommendations by experts as to whether a person meets the Presser rule are often made too simplistically and quickly judged in a single interview. A person may satisfy some criteria but not others and subjective judgements are made by expert witnesses as to the degree to which a person satisfies each of the criteria. Full and thorough assessments of a person’s cognitive ability, memory, comprehension etc, should be undertaken. Furthermore, the person’s prior knowledge and experience of court proceedings is also relevant and basic tutoring should be provided prior to a recommendation being made as to the person’s fitness to plead.11
4.6 The Review Panel commented that, because of the enormous implications of a finding of unfitness for a person with an intellectual disability, greater caution in its interpretation was required:
[t]he person should be given every opportunity, both pre-trial and during trial to improve their understanding of key concepts so as to maximise their ability to meet the Presser criteria at a common sense level. This may include Courts allowing advocates to assist the person with an intellectual disability in understanding the discussion and arguments during the Court proceedings.
Evidence led about unfitness to plead should be carefully examined (and cross-examined, if necessary) before being accepted by courts. In order to overcome the general ignorance by professionals on issues related to intellectual disability, it is also suggested that assessments provided to the courts by expert witnesses such as psychiatrists and psychologists, should be conducted only by those who have the relevant knowledge and expertise in the area of intellectual disability.12 [emphasis in original]
4.7 The President of the New South Wales Tribunal, when asked for his comments on this proposal, rejected the idea of recommending the “instruction” of an accused person with an intellectual disability about court processes. He commented that:
[s]uch instructional programmes would have only short term goals, and might interrupt, or distract from the kinds of long term programmes that need to be put in place for the education and training of intellectually disabled people who have fallen foul of the criminal justice system.13
It has also been stated that special instruction was an inappropriate solution because:
it takes the proceedings quite out of context. It would be unjust to try a person for an offence in circumstances where he or she, by reason of special coaching, has a limited understanding of the proceedings but little else.14
PROCEEDINGS IN THE SUPREME AND DISTRICT COURTS
Overview of the procedure
Who can raise fitness and when?
4.8 For criminal proceedings in the Supreme and District Courts, any party to the proceedings or the Court can raise the issue of the accused’s fitness.15 The question of a person’s fitness can be raised at any time during the course of the hearing but preferably is to be raised before the person is arraigned.16 If raised before arraignment, the Attorney General must determine whether an inquiry should be conducted into a person’s fitness to be tried prior to the hearing,17 or, if the question is raised after the person is arraigned, the Court must hear submissions, in the absence of the jury, about whether there should be such an inquiry.18 If the Attorney General has determined that an inquiry should be conducted, or the question of unfitness is raised in good faith after arraignment, the Court must hold a fitness inquiry.19 Before such an inquiry is carried out the Court may make any appropriate orders, including either granting the person bail or remanding the person in custody, or requiring psychiatric examinations or reports.20 The fitness inquiry is carried out by the Court either with a judge sitting alone or with a jury constituted for that purpose.21 Appendix B, Table 2 provides a flow chart of these procedures.
If found fit/unfit to be tried by the court?
4.9 If the defendant is found fit to be tried, criminal proceedings may re-commence or continue.22 If a jury has been used to determine fitness, a new jury will need to be empanelled.23 If found unfit to be tried, the person is referred to the Tribunal,24 which must determine (which determination is, for convenience, referred to in this chapter as the “initial determination”) whether, on the balance of probabilities, the person will become fit to be tried during the period of 12 months after the finding of unfitness.25
The Mental Health Review Tribunal
4.10 The Tribunal makes or reviews a variety of orders and decisions affecting people with mental illnesses or mental disorders. It also makes determinations and recommendations to government affecting people, including people with an intellectual disability, known as “forensic patients”. Such patients include people found unfit to be tried by a court, people found not guilty on the ground of mental illness (see Chapter 10), or those who have become mentally ill while in prison and have therefore been transferred to a psychiatric hospital. The Tribunal consists of both full time and part time members, including lawyers, psychiatrists and other suitably qualified or experienced persons.26 When exercising its functions in relation to forensic patients, the Tribunal meets as a three person panel consisting of the President or Deputy President, a psychiatrist and “a member (not being a psychiatrist or a barrister or solicitor) who has other suitable qualifications or experience.”27 Its meetings are to be conducted as informally as possible and it is not bound by the rules of evidence.28 Proceedings of the Tribunal are open to the public except in cases where an objection made by one of the parties to the proceedings is upheld by the Tribunal.29
Determination by the Tribunal that the person will become fit to be tried within 12 months
4.11 Given that intellectual disability is a permanent condition, it is unlikely that a person with an intellectual disability will become fit to be tried within the year. People with some forms of mental illness, however, may do so and a person with an intellectual disability may also have a mental illness which impairs his or her understanding and may become fit when the mental illness is treated. If the Tribunal determines at the initial determination that the person will become fit to be tried within 12 months, the Tribunal also must determine whether the person is suffering from a mental illness or a mental condition for which treatment is available in a hospital.30 The Court is then notified of the Tribunal’s findings and may make a number of orders in relation to that person, including release on bail or detention for up to 12 months in a hospital or “other place”.31 If the person is detained, he or she becomes a “forensic patient”,32 and the Tribunal must review the person’s case again as soon as possible and determine whether in its opinion:
If at this or subsequent reviews during the 12 month period the Tribunal is of the opinion that the person has become fit to be tried, it must notify the Attorney General.34 The Attorney General then either advises the Court that no further proceedings will be taken, and the person is released after certain notification requirements are fulfilled, or requests the Court to hold a further inquiry about the accused’s fitness.35 Appendix B, Table 4 provides a flow chart of these procedures. Section 29(1) of the MHCP Act requires the Attorney General to consult with the Director of Public Prosecutions (“DPP”) before the Attorney advises the Court. The Attorney General’s Issues Paper queried whether this required a “face to face” meeting or not, and suggested this section be clarified to allow for written consultation.36
4.12 If at subsequent reviews during the 12 month period the Tribunal still finds the person has not become fit to be tried and is satisfied that the safety of the person or any member of the public will not be seriously endangered by the person’s release, the Tribunal must make a recommendation to the Minister for Health for the person’s release.37 The Tribunal does not have the power itself to order the release of the person. The Minister must then notify the Attorney General and the Director of Public Prosecutions.38 The DPP has 21 days to advise the Attorney General whether criminal proceedings will be taken against the person.39 At this point the Attorney General can object to the person’s release either because the person “has served insufficient time in custody or under detention” or the DPP intends to proceed with criminal charges against the person.40 If the Attorney General does not object, the Minister for Health41 may release the person, though such release may be subject to conditions. Although one would think that the Tribunal is the most appropriate body to determine what conditions are necessary, the Act is silent on this point. Breach of conditions can lead to arrest and further detention.42
Determination by the Tribunal that the person will not become fit to be tried within 12 months
4.13 If the Tribunal finds at the initial determination (when the matter is first referred to it by the court) that the person will not be fit to be tried within 12 months, the Tribunal must notify the Attorney General.43 The Attorney General can then either direct that a “special hearing” be held or decide not to proceed against that person.44 In the latter case the person must be released.45 Appendix B, Table 3 provides a flow chart of these procedures.
4.14 Special hearing. A special hearing is conducted like a normal criminal trial before a judge and jury or, if the accused elects, by a judge sitting alone. The verdicts available at the special hearing are:46
(a) not guilty of the offence charged [in which case the person is released];
(b) not guilty on the ground of mental illness;47
(c) that on the limited evidence available, the accused committed the offence charged;
(d) that on the limited evidence available, the accused person committed an offence available as an alternative to the offence charged.
If a finding of guilt “on the limited evidence available” is made at that special hearing (that is, verdicts (c) or (d)), the Court must indicate the sentence it would have imposed if the special hearing had been a normal trial with a finding of guilt. Such a sentence, if any, is referred to as a “limiting term”.48 There is a right for an appeal from such a verdict.49 After sentencing, the Court refers the person to the Tribunal which must then determine whether the person has a mental illness/mental condition or not and notify the Court of its determination,50 following which the Court can order that the person be detained in a hospital or “in a place other than a hospital.”51 In practice, the only other alternative in New South Wales to a psychiatric hospital is gaol, even though this generally will be inappropriate for a person who is unfit to be tried.
4.15 Release after the special hearing. After the special hearing, the responsibility of the Tribunal continues for the person serving a limiting term, who is classified as a “forensic patient”. As for persons found unfit to be tried and ordered to be detained (see para 4.11) the Tribunal must, as soon as practicable, review the person’s case and determine whether:
The procedure then is identical to that set out in para 4.12. In any event, release will be automatic at the end of the limiting term.53 There is no power to detain the person beyond the limiting term. However if the person is a “mentally ill person” or a “mentally disordered person” and a medical practitioner is satisfied that no other appropriate means for dealing with a person are reasonably available, the person can be detained as an involuntary patient.54
4.16 Review of convictions. A peripheral issue which arises in relation to special hearings is the right of the person who is not fit to be tried and has a finding of guilt made at a special hearing to apply for an inquiry into their conviction under the Crimes Act 1900 (NSW). The New South Wales Attorney General’s Criminal Law Review Division released in November 1992 an Issues Paper reviewing the operation of (what was then) s 475 of the Crimes Act 1900 (NSW). That Paper noted that as the type of “conviction” required before an inquiry could be undertaken did not include a determination of guilt at a special hearing under the MHCP Act,55 an inquiry was not available to such a person. The Attorney General’s Issues Paper questioned whether an inquiry under s 475 should be available to people found unfit to be tried (including some people with an intellectual disability) who received a special finding of guilt. The problem was overcome by the Crimes Legislation (Review of Convictions) Amendment Act 1993 (NSW), which inserted a new Part 13A into the Crimes Act, including a definition of “conviction” which includes “a verdict of the kind referred to in section 22(1)(c) or (d)” of the MHCP Act.56
Continuing review by the Tribunal of forensic patients
4.17 The Tribunal may, at any time, review the case of persons detained who were considered unfit to be tried and make a recommendation for release to the Minister for Health. In any event, such a review (as for all forensic patients) must take place at least every six months.57 The Tribunal shall not make a recommendation for release: “unless it is satisfied, on the evidence available to it, that the safety of the patient or any other member of the public will not be seriously endangered by the person’s release.”58 As part of the regular six monthly review, the Tribunal must notify the Attorney General if a detained person has become fit to be tried.59 The Attorney General must then either request the Court to hold a further inquiry about the accused’s fitness or advise the Minister for Health that no further proceedings will be taken and the Minister for Health must do all things in his or her power to order the person’s release.60
Difficulties with the legislation
4.18 As the description above suggests, the procedures involving unfitness are lengthy and complicated. It has been noted, however, that the issue of a person with an intellectual disability’s fitness to be tried “is now being more systematically addressed, particularly before the District Court, and by prosecuting authorities, than was the case prior to [the new procedures]”.61 The Commission has therefore proposed that, as the existing procedures are relatively new, it is more appropriate at this stage to consider how the identified difficulties may be overcome rather than to propose a fundamental change in the system. The Commission welcomes submissions in this regard. One area where a fundamental change could be considered is the presumption of fitness. Under the current system, the court has to consider not the accused’s fitness to be tried, but rather his or her unfitness. Thus the jury or judge is not asked to determine whether the person is fit, but whether the person has been shown to be unfit. If the evidence is evenly balanced, the jury should find that the person is fit. It has been suggested to the Commission that it would be more appropriate to have to find that a person is fit to be tried and that, where the evidence is evenly poised, the person should be presumed to be unfit, not fit. There are policy arguments either way: some would argue that since the 1986 amendments a finding of unfitness is not as onerous as it once was and that it is more inappropriate to try an unfit person than to find a fit person unfit, while others would argue (which is supported by some of the difficulties outlined below) that a finding of unfitness should be avoided at all cost and therefore the presumption should be one of fitness. The Commission does not make a proposal at this stage but seeks submissions whether there are compelling reasons to reverse the presumption in this way.
4.19 Though this chapter will largely consider legislative difficulties, many difficulties faced by people with an intellectual disability in the criminal justice system are not easily overcome by legislation. The President of the Tribunal commented:
the problems faced by [people with an intellectual disability] caught up within the processes of the Mental Health (Criminal Procedure) Act arise not from the Act itself, but from the lack of adequate community placements and programmes, ignorance on the part of many judges and lawyers about mental retardation, the slowness of the criminal justice system, and other factors which ultimately go to resources, planning, and education. These matters are beyond the capacity of the legal system to change, and are ultimately matters for government policy and public sector management.62
Similarly, the Redfern Legal Centre Intellectual Disability Rights Service (“IDRS”) also noted that while the ability of the Tribunal to recommend early release is of potential benefit, “it is of little practical value if there are no services available for the people with an intellectual disability outside of Corrective Services.”63 These issues are discussed further in Chapter 13.
The distinction between intellectual disability and mental illness
4.20 One preliminary issue is the difficulty caused by the reference to “mental health” in the titles of the MHCP Act and the Tribunal. Though this may seem a minor point, the MHCP Act and the Tribunal both affect people with an intellectual disability as well as those with mental illness. To do so under the title of mental health adds to the continuing confusion between mental illness and intellectual disability. In neither the Mental Health Act 1990 (NSW) nor the MHCP Act is intellectual disability (or “developmental disability of mind” as it is referred to) defined. In fact, though the MHCP Act purports, in its Preamble, to deal with “criminal proceedings involving persons affected by mental illness and other mental conditions”, the definition of “mental condition” in s 3 of the Act specifically excludes “developmental disability of mind”.
4.21 This definitional point raises other questions, for instance:
[s]trictly speaking, consequent to the definition of “mental condition” ... the Mental Health Review Tribunal is not called upon to make any determination in relation to services or “treatment” for an intellectually disabled forensic patient. See sections 16(2)(b); 24(2)(b); 27. Indeed the Tribunal is not required to determine specifically whether the person has a “developmental disability of mind”, although in fact it does do so ... . Guidance should be sought from the Tribunal as to whether it considers that it should have a legislative power to this effect.64
4.22 The Tribunal has not raised this point directly in submissions to the Commission, although its President did comment that he did not believe that further statutory elaboration of the Tribunal’s role under s 16-17 was necessary.65 The Commission suggests that to overcome the confusion in this area and to ensure that specific consideration is given to the needs of the forensic patient with an intellectual disability, either “mental condition” needs to be re-defined, or a reference to intellectual disability be inserted into the MHCP Act where appropriate. The Commission considers it inappropriate to redefine “mental condition” to include “intellectual disability” as that is clearly not the intention of the Act and it may continue the confusion between mental illness and intellectual disability. In Chapter 2, Proposal 1, the Commission suggested that references to “developmental disability of mind” or “developmentally disabled” be replaced by “intellectual disability”. It further proposes that reference to intellectual disability be specifically inserted in those sections which refer to the Tribunal’s determination about the person’s mental illness or mental condition, namely s 16(2)(b), s 17(3)(b), s 24(2)(b) and s 27.
PROVISIONAL PROPOSALS FOR REFORM
10. The following sections of the Mental Health (Criminal Procedure) Act 1990 (NSW) should be amended to read:
16. (1) ...
(2) If the Tribunal determines that a person will, during the period of 12 months after the finding of unfitness, become fit to be tried for an offence, the Tribunal must also determine whether or not:
(a) the person is suffering from a mental illness; and/ or
(b) the person has an intellectual disability; or
(c) the person is suffering from a mental condition
...
...
17. (1) ...
(2) ...
(3) If the Tribunal has determined:
(a) ...
(b) that the person has an intellectual disability and is not suffering from a mental illness ... the Court may order that the person be detained in a place other than a hospital, for a period not exceeding 12 months.
24. (1) ...
(2) If a Court refers a person to the Tribunal, the Tribunal must also determine whether or not:
(a) the person is suffering from a mental illness; and/or
(b) the person has an intellectual disability; or
(c) the person is suffering from a mental condition ...
(3) ...
27. If a Court is notified by the Mental Health Review Tribunal of its determination in respect of a person under section 24(3), the Court may:
(a) ...
(b) if the Tribunal has determined that the person has an intellectual disability and is not suffering from a mental illness ... - order that the person be detained in a place other than a hospital.
4.23 The Commission also suggests that, to overcome the confusion between mental illness and intellectual disability, name changes should be considered in this area, for example changing “forensic patient” to “forensic person”, to avoid any connotations of illness. The reference to “patient” implies that the person is either in hospital or under medical care. Yet forensic patients with an intellectual disability (unless they also have a mental illness) are likely to be detained in gaol rather than in hospital.66 The forensic part of the Tribunal’s work, however, forms only a small percentage of its total workload67 and people with an intellectual disability comprise a minority of these cases. According to its statistics, the Tribunal has only reviewed 48 persons with an intellectual disability (a total of 132 reviews) under the 1983 and 1990 Mental Health Acts.68 As the majority of the Tribunal’s work is therefore concerned with its civil jurisdiction affecting people who have a mental illness or disorder, the Commission considers a name change for the Mental Health Review Tribunal is not warranted, while acknowledging that the name does cause some confusion.
PROVISIONAL PROPOSALS FOR REFORM
11. That references to "forensic patient" in the Mental Health (Criminal Procedure) Act 1990 (NSW) or the Mental Health Act 1990 (NSW) be replaced by "forensic person".
4.24 The Commission also suggests that the provisions of the MHCP Act would be better positioned in the Crimes Act 1900 (NSW), as was previously the case, thus also removing the confusion caused by the name of the MHCP Act.
PROVISIONAL PROPOSALS FOR REFORM
12. That the provisions of the Mental Health (Criminal Procedure) Act 1990 (NSW) be relocated in the Crimes Act 1900 (NSW).
4.25 While recognising the clear distinction between mental illness and intellectual disability, the Commission does not believe a new structure, such as an “Intellectual Disability Review Tribunal” or any other form of duplicate bureaucracy, is warranted. The Queensland Department of Family Services and Aboriginal and Islander Affairs suggested that instead the existing system could be made more effective by either: (a) training of members of the Tribunal about intellectual disability; or (b) when a person with an intellectual disability appears before the Tribunal, including on the Tribunal a representative with expertise in intellectual disability.69 The Commission supports this proposal in relation to the New South Wales Tribunal.
PROVISIONAL PROPOSALS FOR REFORM
13. That, wherever practicable, the membership of the Mental Health Review Tribunal include, as one member of its three person panel, a member with appropriate expertise in the area of intellectual disability in circumstances where the Tribunal knows or suspects that the person appearing before it has an intellectual disability.
Standard of proof
4.26 The question of an accused person’s unfitness to be tried is determined on the balance of probabilities,70 rather than the higher criminal standard of beyond reasonable doubt. Hayes and Craddock have commented that:
[t]his is a retrograde step. The intellectually disabled accused stands a more significant chance of being incarcerated because of the disability under the NSW legislation [than under the common law]. The Crown is able to take advantage of the intellectual disability of the accused to have the accused subjected to the rigours of the mental health system and the “special hearing” provisions whether or not it has a case it can prove against the accused.71
Submissions to date have not raised any concerns about the standard of proof. The Commission seeks further submissions in this area.
Trial by judge alone - the use of standard forms
4.27 As discussed above, there is provision for the accused to elect that the fitness hearing or the special hearing be heard by a judge sitting alone, instead of with a jury, if 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.”72 It may save considerable time for fitness matters to be heard by a judge alone, particularly in relatively non-contentious matters, for example if experts for both sides agree that the accused is clearly unfit to be tried.73 Seeking and receiving advice about such an election is likely to be a difficult matter for an accused whose fitness and understanding is questionable. Under the District Court Rules (rule 10B), the election is indicated by signing an approved form and lodging that form with the registry. If the accused is unfit to make the election and to complete the form, it has been queried whether there should be some provision that the person’s counsel or the judge in the matter can make this decision. It would be a very onerous obligation for counsel to assume, however, and the suggestion was greeted with some concerns in the Commission’s consultations with the legal profession. An alternative would be to avoid the likely farce of trying to obtain the informed consent of the accused by removing the element of choice. It may be argued that a fitness hearing (which is largely dependent on expert evidence) is most appropriately heard by a judge alone, and a special hearing (which is to be as similar as possible to a normal criminal trial) should be heard by a judge and jury. The Commission seeks further input from professionals who have participated in fitness hearings or special hearings, whether the removal of this right to election may result in an injustice to the accused.
PROVISIONAL PROPOSALS FOR REFORM
Length of detention, delay and complexity
4.28 A number of submissions expressed concern about the delay caused by, and the complexity of, the fitness procedures.74 Fitness proceedings can add as much as 12 months to the usual delay experienced in criminal proceedings.75 The combination of delays and discretionary release may mean that a person is detained for a much longer period than he or she would have served even if sentenced to the maximum term for the offence. This may lead to a person or his or her lawyer attempting to avoid a finding of unfitness, or to avoid raising the issue in court. In the case of lawyers, this becomes an ethical issue, that is, whether he or she, as an officer of the court, must raise the possibility of their client’s unfitness to be tried, even if this is against their client’s interests or express instructions. Guidelines about making these decisions are better left to the ethics committees of the Law Society and the Bar Association.
4.29 One alternative way to reduce delay and simplify the fitness procedure in relation to people with an intellectual disability was proposed by IDRS. As intellectual disability involves a permanent incapacity, IDRS suggested that, after a finding of unfitness, the requirement for a determination by the Tribunal of whether the person will become fit within 12 months be deleted.76 The danger of this proposal is that it removes the protection provided by having the person appear before an expert Tribunal, which not only makes a determination about the person’s likely fitness, which may in fact be different from that of the court, but which also makes a determination about the person’s appropriate detention. The Commission proposes that this determination by the Tribunal be retained, despite the potential for lengthening proceedings, because of the risk that a person may have a “dual diagnosis” (that is, both an intellectual disability and a mental illness) or that they may be incorrectly diagnosed as having an intellectual disability. The Commission seeks submissions about any other alternatives which may reduce delay and complexity.
4.30 The Legal Aid Commission of NSW is also concerned that the fitness procedure is unnecessarily complicated and impossible to explain to a client who may be unfit to be tried. Its submission suggested that the procedure could be simplified by terminating the Court’s involvement at the procedures laid down in s 24(1), that is at the referring of the person to the Tribunal after the Court has set a limiting term. The Tribunal could then make the further order, which is currently made by the Court in s 27, that the person be detained, either in a hospital or in “a place other than a hospital”, as the Tribunal immediately assumes this role in any event by s 80(1)(b) of the Mental Health Act 1990 (NSW).77 The Commission supports this proposal.
PROVISIONAL PROPOSALS FOR REFORM
15. That s 27 of the Mental Health (Criminal Procedure) Act 1990 (NSW) be amended to the effect that orders are made by the Tribunal, not the Court.
Power to dismiss charge - the s 10(4) procedure
4.31 The Court may also decide not to conduct a fitness inquiry, but instead to dismiss the charge and order that the person be released if “it is of the opinion that it is inappropriate, having regard to the trivial nature of the charge or offence, the nature of the person’s disability or any other matter which the Court thinks proper to consider, to inflict any punishment ...” [emphasis added].78 This alternative is only available for indictable offences (which are unlikely to be considered to be trivial offences) and it has been stated that the section can only be used in rare circumstances.79 Supporters of this section believe that its operation should be extended to avoid lengthy and futile fitness proceedings in appropriate cases.80 Its opponents suggest instead that this section should be repealed as it effectively enables the judge, rather than the Director of Public Prosecutions, to “no bill” proceedings.
4.32 Another difficulty with s 10(4) is that even a person who has already spent more time on remand than any likely sentence for the offence could not be discharged under this section, because a back-dated sentence (or even a bond) is still considered to be “punishment”.81 It has been suggested that, instead of the words “any punishment”, the wording of the equivalent section in the Commonwealth legislation82 be adopted, that is: “to inflict any punishment, or to inflict any punishment other than a nominal punishment ...”, together with a specific mention in the legislation that the court may take into account the time already spent in custody. The Commission supports the retention of the subsection with the amendments proposed.
PROVISIONAL PROPOSALS FOR REFORM
16. That s 10(4) of the Mental Health (Criminal Procedure) Act 1990 (NSW) be amended as follows:
10(4) If, in respect of a person charged with an offence, the Court is of the opinion that it is inappropriate to inflict any punishment, or to inflict any punishment other than a nominal punishment, having regard to the trivial nature of the charge or the offence, the nature of the person’s disability or any other matter including time already spent in custody which the Court thinks proper to consider, the Court may determine not to conduct an inquiry and may dismiss the charge and order that the person be released.
If fit to be tried?
4.33 As discussed above, if the defendant is found fit to be tried, criminal proceedings may re-commence or continue.83 In relation to the treatment of some of the evidence gathered for the purposes of the fitness hearing, Hayes and Craddock have made the following proposal.
Such a proposal needs to take into account the issue of admissions made to psychologists or psychiatrists (deliberately or inadvertently), whether such experts should be compellable, and who makes this decision. Though such expert witnesses should not need to discuss the facts of the actual offence in determining fitness, it is more difficult to prevent the accused from doing so. In other contexts, for example, evidence given to the Independent Commission Against Corruption, where the right to refuse to answer on the grounds of self incrimination has been removed, such evidence cannot be used in evidence against the person at their subsequent trial.85 Though there could be a prohibition against the prosecution relying on admissions (made to an expert witness in the context of determining fitness) at the subsequent hearing, this would probably not prevent the prosecution pursuing a line of inquiry suggested by a statement made to one of their experts. Another possibility would be to direct the expert not to include such information in his or her report. The current practice appears to be to allow the Crown experts to have qualified access to the accused, by seeking an undertaking that the expert will not ask for a history of the events. This practice was challenged in the District Court where the prosecution unsuccessfully sought to obtain an order that the accused undergo “an unrestricted psychiatric examination” by a psychiatrist provided by the Crown.86 It is obviously in the interests of justice, however, that the prosecution’s experts should have some access to the accused to make their own assessment of fitness. The Commission suggests that, in fairness to the accused, the expert report(s) as to fitness should not be able to be used in evidence at the subsequent trial. The Commission makes no comment about any arrangements which may be made between the prosecution and the defence in relation to the terms on which access to the accused is granted, though it has been suggested in consultations that this may be an area for an internal DPP policy.
PROVISIONAL PROPOSALS FOR REFORM
17. Any expert report prepared for the purpose of assessing the fitness of the accused to stand trial should not be able to be used in evidence at the subsequent trial.
Directions to the jury
4.34 Concerns have been raised about the impact of the general misunderstanding and preconceptions about intellectual disability on the fitness and special hearing procedures, and how best to overcome these through appropriate directions to the jury. Under s 21(4) of the MHCP Act, at the commencement of the special hearing the judge must explain to the jury “the fact that the accused person is unfit to be tried in accordance with normal procedures, the meaning of unfitness to be tried, the purpose of the special hearing, the verdicts which are available and the legal and practical consequences of those verdicts.” Hayes and Craddock pointed out some of the disadvantages of this procedure:
[f]irst, although it is quite immaterial to the proof of the Crown case, the jury will hear that the accused has a disability which may trigger some erroneous prejudices about the intellectually disabled defendant. The jury may be under the misapprehension that such people are prone to commit criminal offences, that they cannot control their urges, or that they are dangerous or perverted. There is the additional risk that the jury will, inappropriately and mistakenly, believe that if they find that the accused committed the offence, he or she will receive appropriate services or placement which will reduce the chance of re-offending. Whilst there is the opportunity provided in s 22(3)(c) for appealing on questions of law, there is no opportunity to redress these prejudices and wrong assumptions.87
4.35 It has also been suggested that the Judge’s Bench Book (prepared by the Judicial Commission of New South Wales) should contain both suggested directions to the jury pursuant to sections 12(4) and 21(4) of the MHCP Act, and suggested wording for the “swearing in” of the jury for fitness hearings and special hearings, and for receiving the jury’s finding.88 The Commission has received from the Judicial Commission the material relating to intellectual disability contained in the two Bench Books prepared for Local Courts and Trial Courts. The Commission has reviewed the material provided to it and believes it could be improved. For example, there is no definition of intellectual disability provided in either Book; there is no discussion of the diversionary procedure for Magistrates available under the MHCP Act in the Local Courts Book; in the Trial Courts Book the consequences of unfitness to be tried (including reference to special hearings and limiting terms and the likely place of detention) are not fully set out in the suggested direction to the jury; and a suggested jury direction is only provided for fitness hearings - the judge is required to adapt the special hearing direction from the fitness direction. The Commission suggests that expert assistance should be sought by the Judicial Commission to review the adequacy of the Bench Books in this area. The Commission believes that the following material would assist the judiciary and magistracy:
- an explanation of intellectual disability, including reference to statutory definitions;
- an explanation of the diversionary procedures for Magistrates under s 32-33 of the Mental Health (Criminal Procedure) Act 1990 (NSW);
- complete suggested directions for both s 12(4) and s 21(4) of the MHCP Act, including a detailed explanation of the consequences of the relevant findings, as required by legislation;
- an explanation of the appropriateness and acceptability of psychological evidence in relation to intellectual disability;
- an appropriate wording for the “swearing in” of a jury at a fitness or special hearing as, due to the limited nature of these hearings compared to a normal trial, the usual words for the “swearing in” are inaccurate and may be confusing; and
- general comments on the procedure to be followed at fitness or special hearings, including whether the indictment should be tendered at the fitness hearing and what other material should be tendered.
Though information about the principles affecting the sentencing of people with an intellectual disability would also be useful, this is probably more appropriately covered by the Judicial Commission’s Sentencing Information System, which already contains relevant material on this subject.
PROVISIONAL PROPOSALS FOR REFORM
18. That the Judicial Commission of New South Wales review the adequacy of the material in the Bench Books in relation to intellectual disability.
Bail
4.36 After a finding of unfitness, the Court is obliged to refer the person to the Tribunal in order to determine whether he or she is likely to become fit within 12 months.89 Pending the Tribunal’s determination, the Court may grant bail90 or “make any ... order that the court considers appropriate.”91 A possible difficulty is:
if the Tribunal determines that the person is unlikely to become fit within 12 months there is no expressed statutory power for either the Court or the Tribunal to continue, vary or refuse bail. If a determination is made that the defendant is likely to become fit, the situation is covered to some extent by section 17(3) of the [MHCP Act], although there is still a gap between the determination and the Court’s response to the Tribunal’s finding. ... However there will be a problem if an unfit defendant requires a variation of “bail” conditions, or breaches their “bail”, subsequent to a determination by the Tribunal that he or she is not likely to become fit within 12 months, but prior to coming before the Court for a Special Hearing. Such a scenario is quite possible, indeed inevitable.92
This area needs to be clarified. The Commission suggests that the Court be given the power to have a matter brought back before it on an application from either side in the period between a finding of unfitness and the special hearing to consider any possible variation in the orders made under s 14(b) of the MHCP Act.
PROVISIONAL PROPOSALS FOR REFORM
19. That s 14 of the Mental Health (Criminal Procedure) Act 1990 (NSW) be amended to provide that, in the period between a finding of unfitness and the special hearing, the Court may, on an application by either side, have the matter brought back before it to consider any possible variation in the orders made under s 14(b).
Special hearings and limiting terms
4.37 Recommendations of the Victorian Law Reform Commission (“VLRC”). The VLRC’s Report Mental Malfunction and Criminal Responsibility recommended changes to Victoria’s current system of detention at the “Governor’s pleasure” for people found unfit to plead.93 Some people have criticised the artificiality of the special hearing system.94 The VLRC, however, considered the operation of the New South Wales MHCP Act and reported a general satisfaction with the scheme apart from two aspects. The VLRC first expressed concerns about the concept of a finding of guilt at a special hearing in situations where limited evidence is available and the accused is unfit to be tried. The VLRC commented:
Guilt is inextricably linked with intent and that is a matter which cannot be satisfactorily dealt with where the defendant is unable to give proper instructions. The [VLRC] has concluded that the only possible findings should be “acquittal”, “not guilty on the ground of mental impairment”, or that “no issues can be determined”. In the last case, the finding of unfitness to stand trial remains extant.95
4.38 The VLRC also disagreed with the setting of limiting terms. It commented:
The arguments against this are the same as those applicable to setting limiting terms after a “not guilty on the ground of mental impairment” verdict. The limiting period is too artificial when a sentencing judge is asked to set it by reference to the sentence for a guilty person: in unfitness cases, the key issue in sentencing - culpability - cannot be determined. For this reason, most members of the Commission believe that the detention of a person should be open-ended. Release decisions should be made by reference to the person’s dangerousness. The procedures governing release should be the same as for those found not guilty on the ground of insanity. These provisions should minimise the possibility of over-cautious release decisions.96
4.39 The VLRC therefore recommended a special hearing system with the three possible findings set out above.97 It recommended, in addition, that it should not be possible to raise unfitness at committal proceedings:98 if the evidence against the defendant is weak, he or she can be discharged anyway, and the jury should have the opportunity to determine the fitness of the accused if there is sufficient evidence to warrant committal.99
4.40 A further recommendation was that, for indictable cases involving people with an intellectual disability, the Office of the Public Advocate (“OPA”) should be notified so that the need for the OPA’s services, including the possible appointment of a guardian, could be assessed.100 There is no direct equivalent of the OPA in New South Wales, however the Public Guardian can be appointed as a guardian for a person who requires one but has no family member or other person who could, or is willing to, be appointed. The difficulty is that the Public Guardian must be notified of the person’s situation to enable it to make such an application, or an application brought by some other person to the Guardianship Board, before this need could be met. The Commission suggests that, where a person appearing before it has no guardian and it appears to the Court that a guardian may be necessary, the Court should be empowered to adjourn the proceedings and direct that an appropriate person (presumably the Public Guardian) be notified of the person’s position and that that person consider bringing an application to the Guardianship Board. The Commission assumes that the Court would only require such a power in the context of fitness or special hearings, but seeks further information about any other circumstances in which such a need could arise and whether the power should be generally available. (Guardianship issues were considered in more detail in Chapter 3.)
PROVISIONAL PROPOSALS FOR REFORM
20. Where a person appearing before any court in a fitness or special hearing does not have a guardian and it appears to the Court that a guardian may be necessary, the Court should be empowered to adjourn the proceedings and direct that an appropriate person (presumably the Public Guardian) be notified of the person’s position and consider bringing an application to the Guardianship Board.
4.41 Setting the limiting term. In addition to the difficulty of ignoring the incapacity of the accused when setting a limiting term, it is impossible for the judge to allow, as occurs in normal criminal proceedings, a reduction in sentence for a plea of guilty. It would be impossible for counsel to indicate whether a plea of guilty would have been forthcoming if their client had been fit to be tried, because the ability to enter a plea is part of the concept of fitness to be tried.101 In R v Boyle, Mathews J commented that having a fixed term for the limiting term was unfair as the unfit person is deprived of the benefit of his sentence being divided into minimum and additional terms, especially where the total sentence would have been less than three years, and release would occur automatically at the expiration of the minimum term. She continued that though the provisions of the Mental Health Act 1990 (NSW) meant that considerations of dangerousness were permitted to override sentencing considerations:
[n]evertheless it is a matter of some concern that a person who is unfit to be tried, and therefore does not stand convicted of any offence, might well be detained in custody for a significantly longer period than would have occurred had he, in fact, been convicted of the same offence. I raise this matter because it appears to me to be a matter of general concern ... 102
PROVISIONAL PROPOSALS FOR REFORM
21. For the purpose of setting the limiting term, the judge should be required to give the person the benefit of assuming that the person would have pleaded guilty. The legislation should also be amended so that the limiting term is divided into minimum and additional terms.
4.42 The Legal Aid Commission raised a further concern in relation to special hearings:
s 22(3)(b) states that a limited finding of guilt at a special hearing constitutes a bar to further prosecution in respect of the same circumstances, but subject to s 28 [which] removes this bar if the person is still in custody and becomes fit to be tried. I would submit that the bar should be absolute. The prosecution has already presented its entire case and obtained an order that the person spend up to a maximum time in custody. The person will only be released on a finding that to do so will not seriously endanger either that person or any other member of the public. The prospect of having the case again presented is, in my view, oppressive.103
The Commission supports the Legal Aid Commission’s proposal: it believes that it is onerous to the accused and to the witnesses involved to have the possibility of a further hearing remaining. If the accused becomes fit and it is considered that an injustice has been done at the earlier hearing there is now scope for a review of the earlier conviction under the new Part 13A of the Crimes Act 1900 (NSW).
PROVISIONAL PROPOSALS FOR REFORM
22. A limited finding of guilt at a special hearing should be a bar to further prosecution in respect of the same circumstances, and should no longer be subject to s 28 of the Mental Health (Criminal Procedure) Act 1990 (NSW).
Acquired brain damage and fitness
4.43 As discussed in Chapter 2, some people acquire brain damage as an adult, for example as the result of an accident. Such people may also be held to be unfit to plead as a result of their disability. This can raise, however, particular difficulties under the MHCP Act if, as Mathews J pointed out in R v Boyle,104 the accused acquired the disability after being charged and committed for hearing for an offence. In this matter the accused, after a failed suicide attempt, suffered severe brain damage and his mental capacity was grossly impaired. He was therefore found by a jury unfit to be tried. At the special hearing the jury found, on the limited evidence available, that the accused had committed each of the six (serious) offences contained in the indictment. It was therefore left to the Judge to state whether, if the defendant had been fit to be tried, she would have imposed a sentence of imprisonment on him and, if so, to nominate a limiting term of imprisonment. Her Honour found the case a difficult one because of potential injustices arising out of the interpretation of this section.
4.44 Section 23(1)(a), the Judge suggested, was based on the assumption that the cause of unfitness existed at the time of the offence, not merely at the hearing. Her Honour doubted whether a term of imprisonment would serve any useful purpose, considering that the accused was now “grossly disabled in memory and cognitive function”.105 Her Honour was also concerned that the:
requirement under s 23(1)(b) that I notionally treat [the defendant] as a person who was fit to stand trial for these offences and who stood convicted of them, means that I must ignore the most significant sentencing consideration of all in his case, namely that by reason of the fact that he suffers from the condition which renders him unfit to stand trial, he is not at all the same person as the one who committed these offences. ... The constraint thus imposed seems to me to be artificial in the extreme.106
4.45 The Commission does not intend at this stage to make a proposal for such an unusual scenario as set out above. It considers that a Judge would be able to apply ordinary sentencing principles in such circumstances.
Release - the discretion of the executive
4.46 The discretion of the executive to refuse recommendations of the Tribunal. As discussed in paras 4.11-4.15, and 4.17 above, the Tribunal can make recommendations for the release of an “unfit” person in a number of cases as long as the Tribunal believes that the person is not dangerous. Recommendations are made to the “prescribed authority”, who is variously the Governor, the Governor-in-Council or the Minister for Health, depending on the particular section under which the Tribunal makes its recommendations. Statistics compiled by the Tribunal show that, in the majority of cases, the recommendations of the Tribunal are approved by the executive government; for example, in 1992, of a total of 180 reviews by the Tribunal, 167 were approved, 2 were rejected and 11 were listed as pending.107
4.47 The New South Wales Mental Health Act Implementation Monitoring Committee argued that having the final decision for the release of forensic patients with the executive government was a problem because:
- The decision maker does not hear the evidence on which his decision is based. Recommendations regarding forensic patients are based on the assessment of danger. The body hearing this evidence is in a better position to make this assessment than a third party relying on recommendations and reports.
The Mental Health Review Tribunal also commented on the unique position of the Tribunal to assess the person’s dangerousness:
Unlike the courts, the Tribunal is in the position of being able to consider the forensic patient, and his or her situation, in a series of (for most forensic patients) progressively less restrictive environments, in order to determine whether a move to a situation allowing more freedom would be appropriate and safe. It can consider the conditions that would need to be imposed, and the circumstances and environment that would have to be established, in order to ensure the safety and appropriateness of the next less restrictive environment being developed for the patient. The Tribunal has the occasion to consider each forensic patient’s case at least once every six months, and sometimes more often. ... The Tribunal has available to it, not only the court file and expert opinion contained therein, but also, its own expertise, the expertise which it may especially commission, the expertise marshalled on the forensic patient’s behalf by the Mental Health Advocacy Service, and the expertise and day to day experience of the treating team which is managing the patient in the current environment.108
Though more relevant to forensic patients with a mental illness than those with an intellectual disability, the Tribunal has also commented that the need for executive government approval of recommendations:
can prevent the needs of forensic patients from being quickly and appropriately addressed when their illnesses deteriorate to an acute phase. Further, it can mean that patients are maintained for excessively lengthy periods in an unnecessarily strict custodial environment, after they have been returned, through acute psychiatric care, to reasonable mental health.109
4.48 Other difficulties with the present system, identified by the Mental Health Act Implementation Monitoring Committee, include:
- It has inherent time delays. Even with prompt processing at each stage, a recommendation which involves consideration by the Minister, Executive Council and the Governor will involve considerable delay. Since there are now [1992 figures] approximately 97 forensic patients in NSW, a very considerable burden is placed on the Minister in considering about 200 sets of recommendations per annum. ...
- Denial of natural justice to the forensic patients. Although the patient may give evidence at the review, and is to be legally represented unless s/he chooses otherwise, neither the patient’s evidence nor the representative’s submissions are transcribed or presented to the ultimate decision maker. Oral evidence which modifies the effect of written reports is not available, except to the extent that it is included in brief written reasons for the Tribunal’s decision. No reasons have to be given by the Minister if he [or she] chooses not to accept the recommendations, and therefore the patient has no opportunity to address any fresh concerns or correct apprehensions of fact with which he or she disagrees.
- A refusal by the prescribed authority to approve a recommendation for release may be in breach of the International Covenant on Civil and Political Rights, Article 9(4). The article states that:-
9.4 Anyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings before a court, in order that that court may decide without delay on the lawfulness of his detention and order his release if the detention is not lawful.
A decision by the Governor-in-Council to refuse a release recommendation (ie continue detention) is not reviewable by a court (see O’Shea v Parole Board of South Australia [1987] 61 ALJR 477).
4.49 The Monitoring Committee submitted three options for reform, of which Option 1 was the preferred option.
Option 1: Remove executive discretion from all decisions regarding forensic patients. All decisions as to their placement, security conditions and release to be made by the Mental Health Review Tribunal. Re-write relevant sections of the Act to enable the Tribunal to make orders rather than recommendations.
Option 2: Remove executive discretion from all decisions regarding forensic patients, except the decision to release. Place a time limit (suggested 6 weeks) on the executive to sign the order or refuse to do the same after receipt of the MHRT’s recommendation.
Option 3: Executive discretion to remain. A time limit of 6 weeks after receipt of recommendation to be placed on the executive to process the MHRT’s recommendation.
4.50 Another possibility would be to retain the executive discretion, but to establish an appeal mechanism. A further possibility would be to replace the executive discretion with a judicial one, however, this marks a movement away from the concept of an expert Tribunal in this area. The Commission presently supports Option 1, for the reasons outlined above. This proposal will also have implications for the treatment of people found not guilty on the ground of mental illness, see Chapter 10.
PROVISIONAL PROPOSALS FOR REFORM
23. That the executive discretion be removed from all decisions regarding forensic patients (except as limited by Proposal 24) so that all decisions as to their placement, security conditions and release are made by the Mental Health Review Tribunal. (This proposal would require consequential amendments to the Mental Health Act 1990 (NSW) and the Mental Health (Criminal Procedure) Act 1990 (NSW) to enable the Tribunal to make orders rather than recommendations.)
4.51 Delays relating to orders for release. The Monitoring Committee was also concerned about the time delays currently occurring, noting that it was not uncommon that a six monthly review is conducted before notification of approval or otherwise from the previous review is received. It noted that the appropriate recommendation depended upon which of the above three options was adopted. All of the possibilities suggested by the Monitoring Committee required an order/decision/recommendation (as appropriate) to be made within six weeks of the hearing or receipt of recommendation.111 The Commission does not believe that it is appropriate to set a time limit on the handing down of the decision of such a decision-making body as the Tribunal.
4.52 The Attorney General’s veto. As discussed, the Attorney General has the power to veto the release of a forensic patient if charges are to be proceeded with or “the person has served insufficient time in custody or under detention.”112 According to Hayes and Craddock this veto is inappropriate as:
[t]here are serious ethical inconsistencies within the Attorney’s power to object, which is effectively a power to imprison. If the system of detention of forensic patients is truly for the protection of the person and of society, there can be no basis for the power to withhold release merely because the Attorney holds the view that the person “has served insufficient time in custody”.113
4.53 The Monitoring Committee considered both bases upon which the Attorney General may veto release recommendations:
- the sufficiency of time served in custody: as dangerousness is the basis for detention, persons who the Tribunal no longer consider dangerous are entitled to their liberty: “[t]o effectively impose a sentence of an unspecified additional period after the stated release criteria has been met makes a mockery of both the verdict and the review system.”114
- pending charges: the 30 day period allowed for a response by the Attorney General or DPP delays the release of all forensic patients, including those not facing charges and otherwise entitled to release.115 Where charges are pending, continued detention in the mental health system amounts to an inappropriate form of remand, especially where the alleged offence is one for which the person would readily be granted bail.
4.54 The Monitoring Committee supported the removal of the “sufficiency of time in custody” veto except for forensic patients who have been transferred to hospital while serving a sentence of imprisonment or life sentence. Such patients have been convicted by a court and then observed in gaol to be mentally ill and transferred to hospital, and “where a court has imposed a sentence [not a limiting term], it is proper that a consideration be made as to whether a sufficient proportion has been served prior to release.”116 Such forensic patients fall outside the ambit of the Commission’s reference, and therefore the Commission does not propose any changes in this area and accepts the retention of the veto. The Monitoring Committee also recommended that the “pending charges” discretion be limited in its operation to forensic patients who have been found unfit to be tried or are in hospital awaiting committal for trial or trial.117
4.55 It may be appropriate to consider replacing the Attorney General’s power of veto with a requirement that the Tribunal notify the DPP of a person’s pending release, so that any action considered necessary in relation to pending charges may be taken upon the person’s release. For example, the person could be arrested immediately upon release. However, the Monitoring Committee also recommended the deletion of the subsection which requires the prescribed authority to notify the Minister for Police and Emergency Services of the date of a forensic patient’s release,118 as it inappropriately “implies that the police will then have some role in monitoring that person in the community.”119 Any provision requiring the notification of the DPP would have to avoid such an interpretation clearly.
4.56 The Commission proposes that veto on the ground that the person has served insufficient time in custody be removed, except as suggested by the Monitoring Committee. The Commission seeks further submissions about the pending charges discretion, and the suggestions in relation to the notification of the DPP referred to above. This area as a whole will obviously be affected by the proposal for the removal of executive discretion discussed above.
PROVISIONAL PROPOSALS FOR REFORM
24. That s 84(1)(a) of the Mental Health Act 1990 (NSW) be limited to apply only to forensic patients who have been transferred to hospital while serving a sentence of imprisonment or life sentence.
FOOTNOTES
1. See, for example, R v Presser [1958] VR 45 and Ngatayi v R (1980) 147 CLR 1.
2. New South Wales. Office of the Director of Public Prosecutions Submission (March 1992) at 1.
3. Mr R Howie QC, Acting Director of Public Prosecutions, Office of the Director of Public Prosecutions Letter (22 March 1993). Mr Howie noted, however, that his office does not keep statistical information on such matters as a distinct category and that it is therefore difficult to obtain reliable information.
4. Mr M Porter, Programme Director, Hunter Region Developmental Disability Service, Department of Community Services Submission (20 October 1992) at 2.
5. S C Hayes and G Craddock Simply Criminal (2nd ed, Federation Press, Sydney, 1992) at 122-123.
6. Hayes and Craddock at 79.
7. R v Presser [1958] VR 45 at 48. Note that this case was considering s 426 of the Crimes Act 1928 (Vic).
8. This list has been approved and applied by other Australian courts, for example, R v Masin [1970] VR 379, per Winneke CJ at 384, Smith and Gowans JJ concurring; R v Bradley (No 2) (1986) 85 FLR 111, per Asche J at 114-115.
9. See also Hayes and Craddock at 88, referring to Ngatayi v R (1980) 147 CLR 1 and R v Dennison (unreported) Supreme Court, NSW, Court of Criminal Appeal, 3 March 1988, CCA 319/87.
10. Victorian Law Reform Commission (“VLRC”) Report Mental Malfunction and Criminal Responsibility (Report 34, 1990) at para 126.
11. Intellectual Disability Review Panel (Victoria) Submission (17 December 1992) at 8.
12. Intellectual Disability Review Panel (Victoria) Submission (17 December 1992) at 8.
13. Mental Health Review Tribunal (Dr Robert Hayes, President) Submission (25 February 1992) at 2.
14. Hayes and Craddock at 104.
15. Mental Health (Criminal Procedure) Act 1990 (NSW) (the “MHCP Act”) s 5. The Court is unlikely to raise the issue on its own motion: Hayes and Craddock at 93.
16. MHCP Act s 7. The arraignment is a brief pre-trial procedure where the accused appears in court, the charges against them are read and the accused pleads guilty or not guilty.
17. This power has been delegated to the New South Wales Solicitor General: M Ierace Intellectual Disability: A Manual for Criminal Lawyers (Redfern Legal Centre Publishing, Sydney, 1989) at 72-73.
18. MHCP Act s 8-9.
19. MHCP Act s 10(1). Note, however, s 10(2): “The Court must not conduct an inquiry into the question of a person’s unfitness to be tried for an offence unless it appears to the Court that the question has been raised in good faith.”
20. MHCP Act s 10(3).
21. See MHCP Act s 11, 11A and 12 for detailed provisions about the circumstances in which the inquiry can be heard by a judge alone and about the conduct of that inquiry.
22. MHCP Act s 13.
23. MHCP Act s 11(4).
24. MHCP Act s 14. Once the provisions of the Mental Health Amendment Act 1994 (NSW) are proclaimed, a person will become a “forensic patient” at this stage, pursuant to an amendment to Schedule 1 of the Mental Health Act 1990 (NSW).
25. MHCP Act s 16(1).
26. Mental Health Act 1990 (NSW) s 252-253. There must be at least one person selected from a group of person who have been nominated by consumer organisations: s 253(1)(3).
27. Mental Health Act 1990 (NSW) s 265.
28. Mental Health Act 1990 (NSW) s 267.
29. Mental Health Act 1990 (NSW) s 272.
30. MHCP Act s 16(2).
31. MHCP Act s 17.
32. Mental Health Act 1990 (NSW) Schedule 1. Note that the definition of “forensic patient” has been amended by the Mental Health Amendment Act 1994 (NSW), though this Act is not yet proclaimed.
33. Mental Health Act 1990 (NSW) s 80(2).
34. Mental Health Act 1990 (NSW) s 80(3).
35. MHCP Act s 29.
36. New South Wales. Attorney General’s Department The Intellectually Disabled in the Criminal Justice System (Criminal Law Review Division, Issues Paper, 1991) at 4.
37. Mental Health Act 1990 (NSW) s 80(4).
38. Mental Health Act 1990 (NSW) s 83(1).
39. According to Hayes and Craddock at 116, there is no indication in the Act that the possible charges are limited to those for which the person was found unfit to be tried or subjected to a limiting term. They state that this should be clarified by legislation.
40. Mental Health Act 1990 (NSW) s 84(1).
41. Mental Health Act 1990 (NSW) s 84(2). The Act does not refer to the Minister for Health directly but to the “prescribed authority”, which, pursuant to reg 20(1)(c) of the Mental Health Regulations 1990 (NSW), is the Minister of Health.
42. Mental Health Act 1990 (NSW) s 93.
43. MHCP Act s 16(4).
44. MHCP Act s 18. As to the nature, conduct and available verdicts of a special hearing see s 19, 21-28.
45. MHCP Act s 20.
46. MHCP Act s 22.
47. It is unlikely that this possible verdict would be left with the jury if there was not evidence in the special hearing sufficient for it to be available. For further consideration of the defence of mental illness see Chapter 10.
48. MHCP Act s 23.
49. MHCP Act s 22(3)(c).
50. MHCP Act s 24.
51. MHCP Act s 27.
52. Mental Health Act 1990 (NSW) s 80(2).
53. Hayes and Craddock at 120.
54. Mental Health Act 1990 (NSW) s 21.
55. MHCP Act s 22(3)(a).
56. Crimes Act 1900 (NSW) s 474A(1)(a). Section 474A(2) also states that a reference to a finding of guilt in Part 13A includes a reference to a qualified finding of guilt as in s 22(3) of the MHCP Act.
57. Mental Health Act 1990 (NSW) s 82(1).
58. Mental Health Act 1990 (NSW) s 82(4).
59. Mental Health Act 1990 (NSW) s 82(3).
60. MHCP Act s 29.
61. Mental Health Review Tribunal Annual Report 1992 at para 10.15.
62. Mental Health Review Tribunal (Dr Robert Hayes, President) Submission (25 February 1992) at 2.
63. Redfern Legal Centre Intellectual Disability Rights Service Submission (16 October 1992) at 9.
64. Mr M Ierace Submission (16 December 1991) at 1.
65. Mental Health Review Tribunal (Dr Robert Hayes, President) Submission (25 February 1992) at 2.
66. Detention of forensic patients with an intellectual disability is usually in one of the special units for inmates with an intellectual disability (see Chapter 11).
67. As at May 1993 there were 101 forensic patients in New South Wales, though the numbers fluctuate, for example in July 1993 there were 113 patients: Mental Health Review Tribunal Annual Report 1992 at para 10.14. Table 26 of the Annual Report sets out the location of these 113 forensic patients, the majority of which were in hospital, including the Long Bay Prison Hospital.
68. Ms T Ovadia, Mental Health Review Tribunal Letter (4 May 1994).
69. Queensland. Department of Family Services and Aboriginal and Islander Affairs Submission (18 August 1992) at 4.
70. MHCP Act s 6.
71. Hayes and Craddock at 96.
72. MHCP Act s 11A and 21A.
73. It is interesting to note that some jurisdictions, for example the Northern Territory, require the issue of fitness to be tried before a judge alone, not a jury: R v P (1991) 1 NTLR 157.
74. For example Mr P Hutten Submission (6 January 1992) at 13. He queried whether guardianship may be more appropriate for people whose disabilities are severe enough for them to be found unfit to be tried, though recognising the heavy burden on the particular guardian.
75. Mr M Ierace Submission (16 December 1991) at 1.
76. Redfern Legal Centre Intellectual Disability Rights Service Submission (16 October 1992) at 9.
77. Legal Aid Commission of NSW Submission (24 July 1992) at 4.
78. MHCP Act s 10(4).
79. See, for example R v Nguyen (unreported) District Court, NSW, 27 February 1990, Nash DCJ, 89/21/0940, referring to the predecessor of s 10(4), s 428F(5) of the Crimes Act 1900 (NSW).
80. New South Wales. Attorney General’s Department The Intellectually Disabled in the Criminal Justice System (Criminal Law Review Division, Issues Paper, 1991) at 3.
81. R v Nguyen (unreported) District Court, NSW, 27 February 1990, Nash DCJ, 89/21/0940.
82. Crimes Act 1914 (Cth) s 20BA(2).
83. MHCP Act s 13.
84. Hayes and Craddock at 103.
85. Independent Commission Against Corruption Act 1988 (NSW) s 37.
86. R v Butler (unreported) District Court, NSW, 20 January 1992, Bell J, 91/11/0407.
87. Hayes and Craddock at 95.
88. Mr M Ierace Submission (16 December 1991) at 9.
89. MHCP Act s 14(a), 16(1).
90. MHCP Act s 14(b)(ii).
91. MHCP Act s 14(b)(iv).
92. Mr M Ierace Submission (6 April 1993) at 1-2.
93. VLRC Report 34, Recommendations 20-25.
94. For example consultation with Mr G Craddock, Barrister on 11 March 1994.
95. VLRC Report 34 at para 124 [footnote references omitted].
96. VLRC Report 34 at para 125 [footnote references omitted].
97. VLRC Report 34, Recommendations 21-24.
98. VLRC Report 34, Recommendation 20.
99. VLRC Report 34 at para 112.
100. VLRC Report 34, Recommendation 25.
101. Hayes and Craddock at 110.
102. R v Boyle (unreported) Supreme Court, NSW, Mathews J, 18 September 1992, 701210/90, at 9-10.
103. Legal Aid Commission of NSW Submission (24 July 1992) at 5.
104. R v Boyle (unreported) Supreme Court, NSW, Mathews J, 18 September 1992, 701210/90.
105. R v Boyle at 6-9.
106. R v Boyle at 12. Compare, however, the comments of Viney DCJ in R v Leader (unreported) District Court, NSW, 10 February 1994, 91/21/1238 at 6, which appears to reach the opposite conclusion.
107. Mental Health Review Tribunal Annual Report 1992, Table 25. In 1991 (Table 24) out of 154 reviews, 148 were approved by government, 4 were rejected and 2 were pending. Further information provided by the Tribunal by facsimile dated 10 June 1994 reveals a similar picture for 1993: of the 253 reviews for that year, 183 were approved, 9 rejected, 2 pending and 59 did not require executive government action.
108. Mental Health Review Tribunal Annual Report 1992 at para 10.7.2
109. Mental Health Review Tribunal Annual Report 1992 at para 11.3.
110. Mental Health Act Implementation Monitoring Committee (NSW) Report to the Honourable R A Phillips Minister for Health on the NSW Mental Health Act 1990 (New South Wales Parliamentary Paper 275, August 1992) at 31-32 [emphasis added].
111. Mental Health Act Implementation Monitoring Committee (NSW) at 32-33.
112. Mental Health Act 1990 (NSW) s 84(1).
113. Hayes and Craddock at 116-117.
114. Mental Health Act Implementation Monitoring Committee at 33.
115. Mental Health Act Implementation Monitoring Committee at 34.
116. Mental Health Act Implementation Monitoring Committee at 34.
117. Mental Health Act Implementation Monitoring Committee Recommendation 4 at 34.
118. Mental Health Act s 84(3).
119. Mental Health Act Implementation Monitoring Committee Recommendation 5 at 35.
