OVERVIEW

5.1 The issue of fitness to be tried and the interpretation of the detailed fitness procedures available in the Supreme and District Courts have been discussed in Chapter 4. The accused’s fitness to be tried is also of concern in the Local Courts, where the overwhelming majority of criminal matters are heard. This chapter discusses the law applicable in the Local Courts and its advantages and disadvantages. As with many areas involving people with an intellectual disability and the criminal justice system, difficulties in obtaining instructions and other ethical issues arise for lawyers where the accused may not be fit to be tried. These issues have already been raised in Chapter 3 and will not be covered in this chapter, as they are matters for ethics and legal education rather than legislation.

5.2 The current legislation applicable in the Local Courts does not in fact involve a decision about fitness, but rather allows for the diversion from the criminal justice system of defendants (persons charged with an offence) with specified mental conditions, including intellectual disability, if the Magistrate considers it would be more appropriate to divert such a person rather than to proceed with the matter in the usual way. This procedure, found in s 32-33 of the Mental Health (Criminal Procedure) Act 1990 (NSW) (the “MHCP Act”), is available for summary offences or indictable offences being tried summarily, that is, it applies to all matters which can be heard to finality in the Local Courts. The legislation does not apply to committal proceedings.¹ It has been stated² that s 32 and 33 perform a similar role to s 10(3) and 10(4) of the MHCP Act, which allow the District and Supreme Courts to dismiss trivial matters without proceeding to a fitness inquiry. It has been submitted to the Commission that there is some confusion about the overlap between fitness issues and this diversionary procedure in Local Courts, particularly as there are so few reported cases in this area. The Commission believes this confusion should be addressed and has therefore proposed changes to s 32 and related sections (see para 5.28). This proposal also attempts to address the other concerns, outlined in this chapter, which have been raised in relation to the diversionary procedure. The current legislation is set out in Appendix C for the purpose of comparison.

FITNESS TO BE TRIED

5.3 As with the Supreme and District Court fitness provisions discussed in Chapter 4, the predecessor of the current Local Court legislation was originally introduced as an amendment to the Crimes Act 1900 (NSW) in 1983.³ This amendment introduced, amongst other things, a new Part XIA (“Unfitness to be Tried for an Offence”). Chapter I of that Part dealt with Supreme and District Courts and Chapter II (s 428U-428Y) with Local Court procedures. These amendments did not come into force until 22 August 1986.⁴ Though Chapter II did not mention fitness, it was generally assumed, pursuant to the heading of the Part,⁵ that the procedures were designed to cover proceedings in the Local Courts where an accused may not be fit to be tried. Part XIA was later removed from the Crimes Act 1900 (NSW) and inserted into the MHCP Act, which came into force in September 1990.⁶ Part 3 of the MHCP Act (s 31-36) relates to Local Court proceedings and is headed “Summary Proceedings Before a Magistrate Relating to Persons Affected by Mental Disorders”. According to the Second Reading Speech introducing the MHCP Act no significant changes were made,⁷ but the original heading (“Unfitness to be Tried for an Offence”) was not carried across to the new legislation.

5.4 Thus there is no reference in Part 3 of the MHCP Act to a person’s fitness to be tried for an offence. It seems clear that, unlike the Supreme and District Court Judges, a Magistrate does not have the power to hold a fitness inquiry with consequent powers in relation to the disposition of the person,⁸ but that s 32 (or s 33) allows the dismissal of charges as a diversionary measure, whether or not the defendant is unfit to be tried, and without the necessity of a determination about fitness.⁹ If the question of fitness is raised for an indictable matter (even one which can be heard summarily in the Local Courts), the Magistrate can refer the matter to a committal hearing, which means that, if the person is committed for trial, the Supreme or District Court can determine the question of fitness. A recent case, however, suggested that, for indictable offences which can be heard in the Local Courts, the question of whether the matter should be more appropriately dealt with under s 32 should be considered first, as it “would be unfortunate for the matter to have to be dealt with in the District Court if there was an appropriate way for the magistrate to deal with the matter under s 32.”¹⁰ The Commission agrees that it seems unnecessary to draw out what may be quite minor offences through committal proceedings, particularly as the accused is likely to have difficulty giving instructions or in understanding the procedures involved. This issue should, however, be clarified in legislation, and is considered in the proposals set out at the end of this chapter. One difficulty which remains is that, though many less serious indictable matters can be heard summarily under the discretion of the Magistrate, the consent of the accused is currently required for some offences.¹¹ An informed consent may be difficult to obtain where the accused has an intellectual disability or a mental illness. This difficulty may be largely overcome by legislation currently before the New South Wales Parliament, which, if passed, will mean that certain indictable offences are automatically dealt with summarily by a Local Court unless the prosecuting authority, or (in the case of more serious offences) the person charged with the offence, elects to have the offence dealt with on indictment.¹²

5.5 For summary offences involving a defendant who is unfit to be tried, however, there is no option for a committal proceeding and it has been held that there is no case law authority for a Magistrate to hear such matters.¹³ This leaves no provision for an unfit accused charged with a summary offence, other than the provisions of s 32. This issue is also addressed in Proposals 25B and 25C below, through provision for a fitness inquiry by a Magistrate.

DIVERSION BY THE LOCAL COURTS

The s 32/33 procedure

5.6 Under s 32 of the MHCP Act, if it appears to the Magistrate that the defendant is “developmentally disabled”, and that on the facts or other evidence it would be appropriate to do so, the Magistrate has the power to adjourn the proceedings, grant bail or make any other order. The Magistrate may also dismiss the charge and discharge the defendant either unconditionally or with conditions. For example, the defendant may be discharged into the care of a “responsible person”. Conditions can only be imposed on the defendant, not on any other person or organisation.¹⁴ Furthermore, no sanction is provided if the conditions imposed are breached. The procedure is also available for a defendant who is “suffering from mental illness or is suffering from a mental condition for which treatment is available in a hospital, but is not a mentally ill person within the meaning of Chapter 3 of the Mental Health Act 1990”. (Section 33 applies to a person who is a “mentally ill person” within the Mental Health Act definition, and differs from s 32 in the procedure to be followed.) Apart from the difficulties with the legislation discussed below, the provisions assume that appropriate treatment or supervisory services are available, which is not always the case.¹⁵ Submissions to the Commission have constantly stated that the lack of services to attempt to provide a solution to the offending behaviour hinders the effectiveness of these sections and results in many defendants repeatedly coming before the court.¹⁶ This issue is considered further in Chapter 13.

Intention of the sections

5.7 One preliminary issue which must be discussed is the intention of this diversionary procedure. The New South Wales Council for Intellectual Disability, while supporting the flexibility provided by this procedure, commented that there was concern that such provisions contributed to a community perception that there were different rules for people with an intellectual disability, and that they could escape responsibility for crimes. It believed that the intention of the section was not clearly set out and that this could be remedied by an objects clause in the section.¹⁷ The procedure is generally supported as a means of removing from the criminal justice system people who should not be processed through the usual channels, and of providing for conditional release. For example, according to Redfern Legal Centre Intellectual Disability Rights Service (“IDRS”):

[t]he law has long recognised that certain people cannot be held morally culpable for their actions. The [MHCP Act] reflects this and attempts to provide alternative processes for some of these people. This Act also recognises that traditional court procedures are of limited use when the accused is unable to properly understand or take part in the proceedings.¹⁸

A barrister with experience in this area has commented:

[i]t is my impression that, in spite of the conceptual difficulties that remain with section 32, it is a highly useful legislative tool which allows magistrates to remove intellectually disabled defendants from the criminal justice system, in appropriate circumstances. Inconsistencies and all, it has been adopted as a model in Commonwealth fitness legislation, and is likely to be so utilised in other states. Whilst any attempt to re-draft the provision so as to rid it of its nonsensical aspects is welcome, it is important that magisterial flexibility not be limited in the process.¹⁹

Alternatively it has been stated that the sections operate to provide an (inappropriate) solution for matters in the “too hard basket” rather than actually assisting the people who come before the court.²⁰

Use of s 32/33 by the courts

5.8 Table 1 (below) details statistics provided by the Bureau of Crime Statistics and Research and reveals that these sections are raised for a variety of offences and, in 1992, nearly 400 charges were dismissed (out of a total of 149,699 charges) under these provisions.

Table 1: Number of charges dismissed in 1992 under sections 32 and 33 by offence type21

Offence (grouped by type)	No. dismissed under s 32/33	Total charges for type
assault (actual bodily harm)	16	3,504
other assault	80	15,282
sexual assault	2	217
sexual offences against children	3	284
other offences against the person	1	340
break, enter and steal	5	3,317
fraud	7	4,920
larceny by shop stealing	23	3,477
other larceny	26	10,488
unlawful possession	8	5,338
vehicle theft	6	2,312
arson	0	10
other property damage	47	6,648
environmental	0	103
breach of orders	18	6,412
other offences against justice procedures	44	5,869
weapons	8	2,324
betting and gaming offences	0	742
prostitution	1	843
liquor licensing	5	375
offensive behaviour	42	11,027
other offences against good order	15	2,781
possess/use opiates	2	995
possess/use cannabis	7	10,867
deal/traffic opiates	1	210
deal/traffic cannabis	1	1,084
deal/traffic other drug	0	302
manufacture/grow cannabis	0	2,361
manufacture/grow other drug	0	93
other drug offence	5	2,564
cause injury by driving	0	176
Driving under the influence: drink/drug	0	1,121
prescribed content of alcohol-high	1	8,400
prescribed content of alcohol-mid	5	11,891
prescribed content of alcohol-low	2	3,596
dangerous, reckless or negligent driving	7	2,860
other driving offences	9	15,973
other offences	1	593
TOTAL	398	149,699

[Link to text only version of table]

5.9 Though according to Table 1 nearly 400 charges were dismissed using these sections in 1992, the sections may have been raised and rejected many more times. If the numbers of people with an intellectual disability appearing on criminal charges before the Local Courts are as high as Associate Professor Susan Hayes’ recent research suggests,²² there is an enormous group of potential users for this procedure. It is therefore important that any existing difficulties with the sections are overcome.

DIFFICULTIES WITH THE CURRENT LEGISLATION

Definitions: to whom does the procedure apply?

5.10 Section 32 contains contradictory references to the conditions to which it applies. In s 3 of the MHCP Act the term “mental condition” is defined as “a condition of disability of mind not including either mental illness or developmental disability of mind”. The heading preceding s 32 (“Persons suffering from mental illness or condition”), though not strictly part of the Act, may imply that the section does not refer to developmental disability, whereas developmental disability is specifically included.²³ As discussed in Chapter 2, concerns have also been expressed at the absence of a definition of “developmentally disabled” and the resulting variation in the use of the section. “Developmentally disabled” is generally regarded as applying to a broader group of people than those usually defined as having an intellectual disability, but the section does not provide guidance about the scope of its intended operation through a definition.²⁴ The term is not generally used elsewhere to refer to people with a brain injury acquired after the age of 18. In practice it appears that the procedure has also been used for such people, but this is an area which needs to be clarified.²⁵ Chapter 2 proposed that a new statutory definition of intellectual disability, applicable to the MHCP Act, be created: see Proposal 1. It also proposed that an umbrella term “impaired intellectual functioning” be introduced into Acts such as the MHCP Act to cover all conditions which impair a person’s intellectual functioning (but not including mental illness) and that such a term be used wherever a policy decision is made that a provision in one of these Acts should apply to all people with such an impairment, however that condition arises. The Commission suggests that s 32 is one such provision, as it is clearly designed to apply to a broader group than people with an intellectual disability.

5.11 The confusion caused by the current definitions (or lack thereof) under the Act has been constantly referred to in submissions and consultations. The Commission believes that this confusion needs to be overcome but recognises the difficulty of doing so in a way which will satisfy all interested groups, while remaining operationally practical. It must be recognised (as Table 1 shows) that this section could be raised in a large number and variety of matters at the Local Court level, particularly with the increasing number of indictable matters being heard summarily. As discussed in Chapter 2, the Commission does not want to propose a definition of intellectual disability (or of any other term) which is not accepted by experts in this field for the sake of court convenience. There are several possible alternatives, which are discussed below.

5.12 Option 1: Replace “developmental disability of mind” with “intellectual disability”, and retain “mental condition”. In s 32, “developmental disability of mind” could be replaced by “intellectual disability” while retaining the reference to the general term “mental condition” to catch other relevant conditions. “Mental condition” is currently defined as “a condition of disability of mind not including either mental illness or developmental disability of mind”. In s 32(1)(a) the procedure is limited to “a mental condition for which treatment is available in a hospital”. It may be argued that some people have mental conditions which cannot be treated in a hospital but would be appropriately diverted from the criminal justice system. If the phrase “for which treatment is available in a hospital” was removed, this would broaden the operation of the section. This alternative has the advantage of being similar to the existing legislation, but the term “mental condition” has already been rejected as a suitable umbrella term in Chapter 2, due to the confusion with mental illness and the use of the term in other criminal legislation with different meanings.

5.13 Option 2: List all conditions covered separately. In s 32, the mental disorders intended to be covered could be specifically listed, that is, specifying that the section cover intellectual disability; mental illness as defined in the Mental Health Act 1990 (NSW); dementia (including senility and such disorders as Alzheimer’s disease); and brain injury. This section would not apply to a “mentally ill person”, which is also specifically defined in the Mental Health Act 1990 (NSW) and for which there are specific procedures under s 33. The difficulty with this proposal is finding acceptable definitions, which do not operate too narrowly, for the listed conditions. There may be other mental conditions which also would be appropriately covered by this section, but attempting to list and define them all would be extremely difficult, and would require constant updating. Such a list may also lead to arguments about definitions, rather than focusing on whether the person’s mental condition is such that they should be diverted from the criminal justice system.

5.14 Option 3: Use of umbrella term “impaired intellectual functioning”. To overcome the difficulties set out in Option 2, the inclusive “umbrella” term “impaired intellectual functioning” could be used, as discussed in para 5.10 above, rather than specifically listing all the conditions designed to be covered by the section. “Impaired intellectual functioning” is defined (see Proposal 1) as including (but not limited to) impaired intellectual functioning because of intellectual disability, brain injury or dementia. A definition of “intellectual disability” would also be provided, in the same terms as that proposed for the Crimes Act 1900 (NSW) (see Proposal 1). Section 32 would therefore apply to people with mental illness (as defined in the Mental Health Act 1990 (NSW)) and people with impaired intellectual functioning. The Commission currently supports Option 3, but recognises that this is a particularly controversial area. Further submissions are invited on this issue.

Proving that a person is “developmentally disabled”: supporting evidence

5.15 An issue related to definitions is the degree of proof of a person’s “developmental disability” required to satisfy the court. The Magistrate is given little assistance about the operation of the section, for example whether medical, psychiatric or psychological evidence is required and whether it should be produced orally or in writing,²⁶ though in practice most Magistrates require a written report by an appropriate professional. The attendance of the expert is unlikely to be necessary. Magistrates support flexibility being maintained in this area.²⁷

5.16 Concerns have been raised, however, about the lack of understanding in the judiciary generally (including Magistrates) about intellectual disability and the effect this has on the expert evidence required and the application of the procedure. The Kingsford Legal Centre commented:

Magistrates have an unsophisticated grasp of the concept [of intellectual disability] and require some specialist evidence before they will be satisfied that they are dealing with a person who ought to be treated other than in accordance with the usual criminal justice process. This expert evidence is not readily available or affordable.²⁸

The Legal Aid Commission of NSW also commented on the cost of the expert reports required for s 32.²⁹ A later submission of the Legal Aid Commission also commented that the s 32 procedure could not operate effectively if Magistrates were not sufficiently trained in this area.³⁰ For example, people without training in this area are often confused by the use of the psychological terms “mild”, “moderate”, “severe” and “profound” intellectual disability. There appears to be a common misconception that a “mild” intellectual disability is not significant and is not of the level of seriousness envisaged by the section. Such confusion was noted in a s 32 matter observed by the Commission. However, as discussed in Chapter 2, the Commission does not believe that replacing these terms through legislation would assist. The Commission does not believe that, if there is a clear definition of intellectual disability and the other terms contained in the legislation, guidelines about proving intellectual disability should form part of the legislation, but rather the material necessary to prove the alleged disability should be left to the Magistrate’s discretion. (This comment is made, however, in the context of the Commission’s proposals, in Chapter 3, for increased judicial education in this area.) Legislative guidelines may reduce the flexibility required to allow the section to operate effectively.

5.17 The availability of expert assistance to courts and lawyers remains a matter of concern. Expert assistance needs to be readily available, particularly to legal aid lawyers, who may only meet their clients on the morning of the case. The lawyer may suspect that a client falls within the terms of the section but may be unable to arrange an assessment in the limited time available. Similarly, Magistrates may have concerns about the mental condition of a person appearing before them, but expert assistance is not immediately available. This issue is discussed further in Chapters 11 and 13.

Release with conditions

5.18 As outlined above, the accused can be released either with conditions or unconditionally. Once the charge is dismissed there is no right to bring the matter back before the court or for court supervision of the conditions. As there is no conviction, some supervisory options, such as using community corrections, are not possible.³¹ The Kingsford Legal Centre stated:

Magistrates are reluctant to use the provisions to allow for conditional discharge in the absence of any mechanism for review by the Court. ... It is difficult to suggest any alternative in the absence of appropriate supervisory services.³²

Similar comments about the unwillingness of Magistrates to use the procedure due to the absence of sanctions have been made by the Legal Aid Commission of NSW.³³

5.19 Magistrates have expressed their concern in consultations with the Commission about the “revolving door” syndrome, with some people constantly returning before the court.³⁴ According to the Chief Magistrate of the Local Courts:

[t]he matter that causes concern is the intellectually disabled person who, while not appearing to be adequately supervised, repeatedly commits offences which in themselves might be considered minor but could have serious consequences. ... [For example] a young woman who was given to lighting fires, usually in public rubbish bins. It seems that despite conditions being set which are designed to ensure supervision and thereby safeguard against further similar acts, there does need to be some responsible body that will monitor the situation.³⁵

As the Chief Magistrate has noted, one of the major difficulties in this area appears to be a small number of people who commit many minor offences and repeatedly have their charges dismissed under this section, but who continue to offend. The Commission is aware of a number of offenders who have had large numbers of charges dismissed under these provisions, for example, in one case study provided by the New South Wales Department of Community Services, the client had over 120 charges (including theft, break and enter, offensive language, exposing in public) dismissed on the same day in court. The person’s case adviser commented that the person now had no respect for courts, magistrates or lawyers, and the court procedures had failed to deter.³⁶ Such a state of affairs does not help the offenders themselves or the general community. In a matter observed by the Commission, where s 32 was raised, the Magistrate commented that s 32 had been applied on at least three previous occasions and so did not appear to be working as he believed it was intended to do - that is, as a deterrent. He commented that the community must have some expectation that there be an attempt at deterrence. The matter was adjourned (with conditions imposed on the accused), so that further medical reports could be sought.

5.20 As outlined above, the Magistrate may dismiss the charge and discharge the defendant “into the care of a responsible person, unconditionally or subject to conditions”,³⁷ but there are no guidelines about the proper role of any responsible person into whose custody a defendant may be released, including what action that person may take if the accused does not comply with the conditions.³⁸ Presumably the agreement of the responsible person should be sought before such an order is made, but this is not clear in the legislation. The Office of the Public Guardian, however, perceives benefits in this procedure:

[t]here is potential for solicitors and magistrate to put pressure on the Department of Community Services by way of adjourning proceedings until case plans are presented which allow effective use of [the responsible person procedure]. Some magistrates are prepared to do this, others are not.³⁹

The New South Wales Department of Community Services is concerned by such procedures, particularly by attempts by Magistrates to make orders binding on the Department.⁴⁰ The role of the Department of Community Services is considered in Chapter 13. Where an accused is released “on the condition that the defendant attend on a person or at a place specified by the Magistrate for assessment of the defendant’s mental condition or treatment or both”,⁴¹ there is no mechanism to ensure the notification of the relevant service or the person’s attendance, which has also caused difficulties. As discussed at para 5.6, the lack of appropriate services will also limit the usefulness of this provision.

Dismissal under s 32: possible options

5.21 From the discussion above, it appears that there are at least four possible options for s 32 in relation to the terms upon which the person is dismissed from the criminal justice system.

5.22 Option 1: Conditions without sanctions. This option reflects the present position, that is, there is no power to bring the person back before the court if the conditions are not complied with. The court can, however, take into account non-compliance in a subsequent case. It has been questioned whether the court should have the power to discharge the defendant subject to conditions without a finding of guilt and, if so, whether there is any point in having the power to formulate conditions, when a breach of them is without remedy.⁴² One Magistrate has commented that, in his opinion, it is worth retaining conditions as they are frequently observed, even without a sanction. Also, the Magistrate did not see any difficulty in providing to a criminal court the power to impose sanctions upon a person against whom no criminal offence has been proved, as s 32 and 33 operate to provide an advantage which the rest of the population do not have: “if a person - having been offered this advantage - will not or cannot abide by any necessary conditions on his discharge, then he should simply be placed in the same position as the rest of the population.” He suggested, however, that there should be a maximum period (six months) after which the charge is finally dismissed and the risk of being brought back to court disappears,⁴³ see Option 3, below. Though the Commission believes that it is more appropriate that a Magistrate imposes conditions in open court, rather than providing this power to other bodies, for example the police,⁴⁴ the Commission does not believe that what is, in effect, a fiction of “conditional release” should be maintained.

5.23 Option 2: Conditions and sanctions for breach. The lack of sanctions to ensure compliance with the conditions has been commented upon.⁴⁵ One possibility for consideration would be the amendment of the section to impose a penalty if conditions are breached. The Kingsford Legal Centre’s submission argued, however, that such a provision “disregards the varying capacity of the intellectually disabled to appreciate the need to comply with the conditions and the consequences of a breach.” Appropriate supervision was seen as more effective.⁴⁶ Similarly the New South Wales Council for Intellectual Disability commented that a penalty for the breach of a condition was inappropriate as:

[i]t could be seen to punish the person for the lack in the system. It would provide another way in which a person may be “set up to fail”, and be caught up in the spiral once more, which is specifically what this provision should try to avoid.⁴⁷

IDRS also opposed sanctions for similar reasons and added that sanctions would invalidate, or at best undermine, the underlying assumption of s 32 (which the Commission assumes to be that the procedure exists for people who are not appropriately dealt with through the traditional criminal justice process). IDRS added that sanctions were inappropriate due to the minor nature of many of the offences involved, which would not merit a custodial sentence or even a Community Service Order in many cases.⁴⁸ The Commission believes that the imposing of any sanction would be unjust as, under the s 32 procedure, there has been no hearing or finding of guilt.

5.24 Option 3: Conditions and the ability to bring the matter back before the court if the conditions are breached within a specified period (for example, six months) after dismissal.⁴⁹ This would mean that s 32 would operate in a similar way to s 33, where, six months after the matter is dealt with under the section, the charge is automatically dismissed unless the defendant has been brought back before a Magistrate to be dealt with further in relation to the charge. This option would impose an additional restriction on the person with an intellectual disability, who has not been found guilty of any criminal offence. As such it is subject to the same objections as Option 2 above, though this option is, in the Commission’s view, preferable to the previous option.

5.25 Option 4: Dismissal without conditions. The Commission suggests that it is inappropriate to impose (unenforceable) conditions, particularly where there has been no finding of guilt against the defendant, and presently supports this option. The Commission therefore suggests that the provision for dismissal with conditions be removed. The possibility of adjournment with conditions prior to dismissal remains, see Proposal 25A(2). The proposal also states, see Proposal 25A(3), that the Magistrate may take into account, in making his or her determination whether or not to exercise the discretion to dismiss the charge, any proposal relating to the care and treatment of, and provision of services to, the defendant.

THE DEFENCE OF MENTAL ILLNESS

5.26 Currently there is no legislative provision relating to the defence of mental illness (also known as the “M’Naghten” or “insanity” defence) in Local Courts. Presumably if the defence of mental illness (misleadingly named, as it is also applicable to people with an intellectual disability)⁵⁰ was made out, the charge would be dismissed and the defendant discharged. While it is uncommon, if not unheard of, it may be appropriate for there to be some legislative provision making clear that the defence is available, and what is to occur if it is successful. It is likely that the issue is currently avoided by the dismissal of the charge pursuant to sections 32 or 33. It is not inconceivable that a Magistrate may properly decline to apply these sections and then have to contend with the defence, and more particularly, what to do with the defendant if the defence is made out. If the defence is successful in the District and Supreme Courts, the person is detained in custody and subjected to a complex system of review by the Mental Health Review Tribunal, the Attorney General and the Minister for Health. Release is dependent upon, firstly, a finding by the Tribunal that the person is not dangerous, and a recommendation that the person be released, and secondly, the acceptance of that recommendation by the government.⁵¹ This defence is discussed in more detail in Chapter 10 below.

5.27 If there is not to be a similarly involved process for matters dealt with in the Local Court, it is arguable that there should at least be some mechanism for alerting the appropriate authorities to a need for services or treatment. A similar concern arises if a charge is dismissed because a defendant in the Local Court is found unfit to be tried by a Magistrate. If the defendant has a mental illness which poses a danger to himself or herself or to the community, it is possible that he or she will be scheduled as an involuntary patient and presumably there is no need for a further legislative provision. The need for legislation arises if the defendant has an intellectual disability (or another mental condition other than mental illness) and a consequent need for services, perhaps to reduce his or her chances of being drawn back into the criminal justice system. This is addressed in the notification provisions in Proposals 25B(7) and 25D.

PROPOSED AMENDMENTS TO SECTION 32 AND RELATED PROVISIONS

5.28 The flexibility of the current s 32 has allowed the appropriate diverting of some defendants who have an intellectual disability, or other mental condition, out of the criminal justice system. The following proposed alternative is intended to maintain the section’s flexibility and at the same time clarify the above-mentioned areas of concern. The proposal responds to the need for both a diversionary provision (where the defendant has a mental abnormality) and a general fitness provision in the Local Court with separate sections. The proposal also includes provision for the defence of mental illness in the Local Courts. The Commission seeks submissions on the advantages and disadvantages of this proposal. Specific questions for discussion are listed at the end of the proposal which may assist people making submissions in this area, however comments need not be limited to the questions. The Commission acknowledges the assistance of the Parliamentary Counsel’s Office in drafting this proposal in New South Wales legislative style.

PROVISIONAL PROPOSALS FOR REFORM

25. That s 32 of the Mental Health (Criminal Procedure) Act 1990 (NSW) be re-drafted with the aim of overcoming some of the concerns highlighted in this chapter (see P25A). That provisions for fitness hearings (see P25B, P25C) and the defence of not guilty on the grounds of mental illness, which is renamed as the defence of mental impairment to be consistent with Chapter 10 below (see P25D), be introduced into Local Courts. No changes are proposed to the application of the provisions (see s 31) or to the provisions for mentally ill persons contained in s 33. Consequential amendments will also be required to s 37-39 of the Mental Health (Criminal Procedure) Act 1990 (NSW).The definitions of “intellectual disability” and “impaired intellectual functioning" are those found in Proposal 1.

PERSONS WITH INTELLECTUAL DISABILITY, MENTAL CONDITION OR ILLNESS

25A. (1) A Magistrate may dismiss the charge and discharge a defendant 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:

(a) the defendant has impaired intellectual functioning or a mental illness, but is not a mentally ill person within the meaning of Chapter 3 of the Mental Health Act 1990; and

(b) on an outline of the facts alleged in the proceedings, or such evidence or other material as the Magistrate may consider relevant, the Magistrate is satisfied that to commence or continue the proceedings would not be in the interests of the community and the defendant.

(2) Before deciding to take action under this section, the Magistrate may do any one or more of the following:

(a) adjourn the proceedings;

(b) grant the defendant bail in accordance with the Bail Act 1978;

(c) order the defendant to undergo a psychiatric examination or other examination;

(d) order that a psychiatric report or other report relating to the defendant be obtained;

(e) make any other interim order that the Magistrate thinks appropriate.

(3) In making a decision under this section, the Magistrate may take into account any proposal relating to the care and treatment of, and provision of services to, the defendant.

(4) A decision under this section to dismiss a charge against a defendant does not constitute a finding that the charge against the defendant is proven or otherwise.


UNFITNESS TO BE TRIED BY A MAGISTRATE



25B. (1) The question of a defendant’s unfitness to be tried for an offence may be raised:

(a) by a Magistrate; and

(b) by any party to proceedings before a Magistrate; and

(c) at any time during the course of the hearing of the proceedings in respect of the offence but, so far as is practicable, must be raised before the hearing commences; and

(d) on more than one occasion in respect of the same proceedings.

(2) If the question of the defendant’s unfitness is raised the Magistrate must:

(a) consider taking action under section 32 or 33; and

(b) if the Magistrate does not dismiss the charge under section 32 or 33, conduct an inquiry into the defendant’s unfitness to be tried.

(3) The Magistrate must not take action under subsection (2) unless it appears to the Magistrate that the question has been raised in good faith.

(4) Before conducting an inquiry the Magistrate may do any one or more of the following:

(a) adjourn the proceedings;

(b) grant the defendant bail in accordance with the Bail Act 1978;

(c) remand the defendant in custody for a period not exceeding 28 days;

(d) order the defendant to undergo a psychiatric examination or other examination;

(e) order that a psychiatric report or other report relating to the defendant be obtained;

(f) make any other interim order that the Magistrate thinks appropriate.

(5) The question of a defendant’s unfitness to be tried is to be determined on the balance of probabilities.

(6) If, following an inquiry, the defendant is found fit to be tried for the offence, the Magistrate must recommence or continue the proceedings.

(7) If, following an inquiry, the defendant is found unfit to be tried for the offence, the Magistrate:

(a) must dismiss the charge or charges and discharge the defendant; and

(b) if the Magistrate has concerns as to the adequacy of care, treatment or services for the defendant, notify (or cause to be notified) in writing the appropriate Minister or Ministers of the concerns.

Fitness inquiry procedure

25C. (1) At an inquiry, the defendant is, unless the Magistrate otherwise allows, to be represented by a barrister or solicitor.

(2) An inquiry is not to be conducted in an adversary manner.

(3) The test of unfitness to be tried by a Magistrate is the same as the test of unfitness to be tried in the District and Supreme Court.

(4) The onus of proof of the question of a defendant’s unfitness to be tried for an offence does not rest on any particular party to the proceedings in respect of the offence.

EFFECT OF FINDING OF MENTAL IMPAIRMENT IN LOCAL COURT

25D. If, following a hearing before a Magistrate, the person is found not guilty by reason of mental impairment the Magistrate must;

(a) dismiss the charge and discharge the defendant; and

(b) if the Magistrate has concerns as to the adequacy of care, treatment or services for the defendant, notify (or cause to be notified) in writing the appropriate Minister or Ministers of the concerns.

PROVISIONAL PROPOSALS FOR REFORM

Diversion (P25A)

1. Application of the section. The proposed version of s 32 now applies to people with impaired intellectual functioning or a mental illness, but not to a person who is a mentally ill person within the meaning of Chapter 3 of the Mental Health Act 1990 (NSW) and who is therefore covered by the provisions of s 33. “Impaired intellectual functioning” includes [but is not limited to] impaired intellectual functioning because of intellectual disability, brain injury or dementia. It is not designed to cover mental illness.

(a) Should the procedure apply to all these groups of people? Are there other groups which should be covered? Should the reference to “a mental condition for which treatment is available in a hospital” be retained?

(b) Are the terms chosen appropriate and sufficiently unambiguous?

(c) Would it be preferable to remove the reference to “impaired intellectual functioning” and provide instead a list of the types of other mental disorders the section is intended to cover?

2. Criteria for discretion. The proposed new test for the exercise of the Magistrate’s discretion is that he or she “is satisfied that to commence or continue the proceedings would not be in the interests of the community and the defendant”, replacing the current test that the Magistrate may exercise his or her discretion “if it would be more appropriate to deal with the defendant in accordance with the provisions of this part than otherwise in accordance with law”. Is the new test appropriate?

3. Dismissal without conditions. As discussed above, dismissal without conditions prevents orders in relation to treatment or care of the person. It has been suggested that this may limit the usefulness of the provisions and discourage Magistrates from using the provisions.

4. Implication of lack of services. In the proposal at P25A(3) the Magistrate can take into account any proposal relating to the care and treatment of, and provision of services to, the defendant. This may mean that, if no services or appropriate supervision are available, the Magistrate may choose not to exercise his or her discretion. To simply dismiss the charge in circumstances where there is a lack of services or supervision means that the person is not assisted may defeat the intention of the section. Are there other alternatives?

Fitness (P25B, P25C)

5. Definition. Fitness is not defined by legislation, but rather the proposal at P25C(3) states that the “test of unfitness to be tried by a Magistrate is the same as the test of unfitness to be tried in the District and Supreme Court, except in so far as the procedure in the Magistrate’s court is different.” Is such a statement necessary, or would it be preferable to leave the issue to the common law of fitness?

6. Notification requirements. In the proposal at P25B(7), if a person is found unfit to be tried, the charges are to be dismissed without conditions. The Magistrate must also notify the appropriate Minister(s) if he or she has concerns as to the adequacy of the care of a person. One Magistrate suggested:

A court should not be compelled by the legislature to take a particular course of action on anything so flimsy or so thoroughly subjective as a “concern”. Any conscientious and sympathetic Magistrate will - nearly always - have a concern as to the adequacy of care, etc, for any person in his court who has the misfortune to suffer from a mental illness or disability.⁵³


The Magistrate also expressed his concern whether a Magistrate would know who was the appropriate Minister and suggested instead that such a provision should be enabling rather than mandatory and should operate “if it appears to the Court that adequate care, treatment or services are not available to the person.” Additionally the utility of notifying the Minister has been questioned. Alternatively it may be preferable that if the defendant is found unfit to be tried, that the Magistrate be required to take action under the diversionary procedure. The Commission seeks comments about the notification provisions, which also apply for the defence of mental impairment (see P25D) and possible alternatives.

7. Applicable offences. Should the provision to enable a Magistrate to hold a fitness hearing only apply to summary offences, not indictable offences which can be heard summarily? For the latter should the Magistrate just order a committal hearing?

8. Difference to fitness in the District and Supreme Courts.The proposal for the Local Courts does not provide, unlike the present procedure in the District and Supreme Courts, for the possibility that a person may become fit to be tried, nor does it include any provision for the defendant other than the notification procedure. It may be suggested that the procedure does not achieve any more than the diversionary procedure in P25A. It does however require a Magistrate who has refused to utilise the discretion to divert to consider the person’s fitness to be tried. The Commission seeks comments about the appropriateness of fitness provisions without a role for the Mental Health Review Tribunal and the other procedures which apply in the District and Supreme Courts.

Defence of mental impairment (P25D)

9. Dismissal if defence succeeds. It has been suggested by a Magistrate that merely dismissing the charge if the defence of mental impairment succeeded is inappropriate for many offences which fall under the jurisdiction of the Local Courts (see Table 1 for an indication of the range of offences), particularly considering the increasing number of indictable offences which are heard summarily. It was suggested that for the more serious offences there is no reason to make a distinction between the Local and Supreme/District courts in this area. The Magistrate added: “the drastic consequences of a special verdict under the present s 38 means that the defence of mental illness is rarely raised. The certainty of an unconditional dismissal in the Local Court (if the defence succeeded) could be expected to make it vastly popular there.”⁵⁴

10. Advantages over the current s 33 procedure? The MHCP Act already provides for the diversion of people with a mental illness. The Commission seeks comments about whether the proposal will provide significant advantages over the existing procedure. The relationship between the proposal and the current s 33 will need to be considered further.

1. MHCP Act, s 31(1).

2. Perry v Forbes (unreported) Supreme Court, NSW, 21 May 1993, Smart J, CLD 11333/93, at 10.

3. See the Crimes (Mental Disorder) Amendment Act 1983 (NSW), Schedule 1.

4. New South Wales Government Gazette No 134 of 22 August 1986. The sections were subsequently amended by the Crimes (Mental Illness) Amendment Act 1986 (NSW) and by the Crimes (Mental Disorder) Amendment Act 1989 (NSW).

5. There is almost no commentary on the legislation which introduced these amendments. According to the Second Reading Speech of the Hon L Brereton MP, the Minister for Health: “[t]he next matter dealt with in [the Bill] is that of fitness to be tried. These provisions ... remain broadly provisions for a scheme whereby mentally handicapped people, the developmentally disabled, have a proper opportunity, when charged with criminal offences, for their presumed innocence to be demonstrated. ...” New South Wales. Parliamentary Debates (Hansard), Legislative Assembly, 22 November 1983 at 3090.

6. See the Miscellaneous Acts (Mental Health) Repeal and Amendment Act 1990 (NSW).

7. The Hon P E J Collins MP, Minister for Health, commented in this regard: “The [MHCP Bill] re-enacts provisions relating to proceedings involving persons affected by mental illness and other mental conditions which are currently contained in parts 11A and 11B of the Crimes Act 1900 with appropriate amendments consequential upon the drafting of the Mental Health Bill. It was considered that these provisions should more appropriately be placed in a new principal piece of legislation.” New South Wales. Parliamentary Debates (Hansard), Legislative Assembly, 22 March 1990 at 892-893.

8. Mackie v Hunt (1989) 19 NSWLR 130 at 135-136.

9. See Mackie v Hunt (1989) 19 NSWLR 130 in relation to the predecessor of section 32, namely s 428W of the Crimes Act 1900 (NSW).

10. Perry v Forbes (unreported) Supreme Court, NSW, 21 May 1993, Smart J, CLD 11333/93, at 18. Smart J previously stated: “[i]f the magistrate takes the view, after hearing any medical evidence, that the charge should not be dealt with under s 32 and there is still a real question of fitness to plead and to give instructions then it would be appropriate for the magistrate to exercise his discretion under s 497 of the Crimes Act and to commence committal proceedings.”

11. Crimes Act 1900 (NSW) s 476.

12. Criminal Procedure (Indictable Offences) Amendment Bill 1994 (NSW).

13. Pioch v Lauder (1976) 13 ALR 266. (This case was also referred to in Mackie v Hunt (1989) 19 NSWLR 130, at 135.) In Pioch, Forster J of the Supreme Court of the Northern Territory stated that at common law the correct approach was to treat the defendant as if he were insane. His Honour commented, at 271: “[t]his rather bizarre and no doubt offensive result seems to follow from the authorities (R v Pritchard (1836) 173 ER 135; R v Berry [1876] 1 QB 447; R v Presser [1958] VR 45; R v Podola [1960] 1 QB 325; [1959] 3 All ER 418). If this be right, and it seems clear that it is, what should the learned stipendiary magistrate do? If this were an indictable offence he should proceed with the hearing and commit the defendant for trial. ... In the case of simple offence, however, there appears to be neither authority nor statutory provision to deal with the matter of a defendant who is insane, whether properly so called as being a person suffering from a sufficient defect of reason, or disease of the mind, or a person like the defendant here.” [The defendant in that case was an Aboriginal person who was totally deaf, unable to use speech, and who, it was stated, had not absorbed the cultural or moral values of Aboriginal, tribal or European society.]

14. Minister for Corrective Services v Harris (1989) 8 (12) Petty Sessions Review 3892 at 3896-3897.

15. Mr I H Pike, The Chief Magistrate of the Local Courts (New South Wales) Submission (30 July 1992) at 1.

16. For example, Redfern Legal Centre Intellectual Disability Rights Service Submission (6 January 1992) at 2.

17. The New South Wales Council for Intellectual Disability Submission (16 September 1992) at 2, 10.

18. Redfern Legal Centre Intellectual Disability Rights Service Submission (6 January 1992) at 2.

19. Mr M Ierace Submission (16 December 1991) at 4.

20. Consultation with the DPP, Police Prosecutors, Legal Aid Commission of NSW, Law Society of New South Wales, Public Defenders, Aboriginal Legal Service and the Judicial Commission on 1 March 1994.

21. Extracted from “NSW Local Criminal Courts 1992: Number of charges, outcome of charges” provided by the New South Wales Bureau of Crime Statistics and Research.

22. New South Wales. Law Reform Commission People with an Intellectual Disability and the Criminal Justice System: Appearances Before Local Courts (Research Report 4, 1993). The study found that 14.2% of the sample of 120 people had an intellectual disability and a further 8.8% were in the borderline category.

23. At s 32(1)(a). Subsection 32(3)(b) also refers to the defendant’s “mental condition”.

24. See, for example Inspector P Morgan Oral Submission (5 January 1994).

25. Mr G Simpson, Social Worker, Head Injury Outreach Team, Lidcombe Hospital Submission (21 February 1994) at 15.

26. Mr I H Pike, The Chief Magistrate of the Local Courts (New South Wales) Submission (30 July 1992) at 1.

27. Consultation with Magistrates, Downing Centre on 22 March 1994.

28. Kingsford Legal Centre Submission (29 October 1991) at 4.

29. Legal Aid Commission of NSW Submission (8 January 1992) at 2.

30. Legal Aid Commission of NSW Submission (24 July 1992) at 6. The New South Wales Council for Intellectual Disability made similar comments: “many solicitors, magistrates and judges ... do not fully understand the procedures, or their intended operation. Council would welcome the development of resources and educational programs which better explain this and related issues ...”: Submission (16 September 1992) at 10.

31. Mr I H Pike, The Chief Magistrate of the Local Courts (New South Wales) Submission (30 July 1992) at 1.

32. Kingsford Legal Centre Submission (29 October 1992) at 4.

33. Legal Aid Commission of NSW Submission (24 July 1992) at 6.

34. Consultation with Magistrates, Downing Centre on 22 March 1994.

35. Mr I H Pike, The Chief Magistrate of the Local Courts (New South Wales) Submission (30 July 1992) at 1.

36. Consultation with the New South Wales Department of Community Services on 29 November 1993 and letter from the Department dated 16 December 1993.

37. MHCP Act s 32(3)(a).

38. Mr I H Pike, The Chief Magistrate of the Local Courts (New South Wales) Submission (30 July 1992) at 2.

39. New South Wales. Office of the Public Guardian Submission (26 August 1992) at 2.

40. Consultation with the Department of Community Services on 8 March 1993.

41. MHCP Act s 32(3)(b).

42. Mr M Ierace Submission (16 December 1991) at 4.

43. Magistrate M C Beveridge Submission (5 April 1994) at 1.

44. See New South Wales. Law Reform Commission People with an Intellectual Disability and the Criminal Justice System: Policing Issues (Discussion Paper 29, 1993), ch 7.

45. New South Wales. Attorney General’s Department The Intellectually Disabled in the Criminal Justice System (Issues Paper, 1991) at 4-5.

46. Kingsford Legal Centre Submission (29 October 1991) at 4.

47. The New South Wales Council for Intellectual Disability Submission (16 September 1992) at 10.

48. Redfern Legal Centre Intellectual Disability Rights Service Submission (16 October 1992) at 9.

49. This option was suggested by Magistrate M C Beveridge Submission (5 April 1994) at 1.

50. See Chapter 10, which proposes that the defence be re-named as the defence of mental impairment.

51. Mental Health Act 1990 (NSW) s 81-84.

52. The Commission has discussed several versions of the draft proposals with a variety of people, including the New South Wales Parliamentary Counsel’s Office, Magistrates from the Downing Centre and Legal Aid Commission solicitors. The Commission is very grateful for their detailed comments and has included some of their suggestions in the proposals or the points for discussion. Except where indicated, however, the proposals should not be seen as representing their views.

53. Magistrate M C Beveridge Submission (5 April 1994) at 2.

54. Magistrate M C Beveridge Submission (5 April 1994) at 2.