Fitness to stand trial and the defence of mental impairment
-
It is presumed at law that a person appearing before a court has the capacity to enter a plea. Generally, most people with an intellectual or psychiatric disability can plead in a court, but this is not always the case. In this situation, it is the obligation of the party who is asserting that the relevant person is unable to enter a plea to prove this assertion, and therefore rebut the presumption or show it does not apply.
The law in relation to fitness to plead was reformed by the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) (‘CMIUT Act’).
The CMIUT Act:
defines the criteria for determining if a person is unfit to stand trial;
replaces the common law defence of insanity with a statutory defence of ‘mental impairment’; and
provides new procedures for dealing with people who are unfit to stand trial or are found not guilty because of mental impairment.
-
Under section 6 of the CMIUT Act, a person is unfit to stand trial for an offence if their mental processes are so disordered during the trial that they are unable to:
understand the nature of the charge;
enter a plea to the charge and exercise the right to challenge jurors or the jury;
understand the nature of the trial (i.e. that it is an enquiry into whether or not the person committed the offence);
follow the course of the trial;
understand the substantial effect of the prosecution’s evidence; or
give instructions to their legal practitioner.
However, a person who is suffering from memory loss is considered fit to stand trial (CMIUT Act s 6(2)).
-
When a person is found unfit to plead, and the judge determines that the defendant is unlikely to become fit within the next 12 months, a court may adjourn the matter or hold a special hearing (CMIUT Act ss 12–18) to determine whether the person would be found:
not guilty of the offence;
not guilty because of mental impairment; or
to have committed the offence.
Under the CMIUT Act, a finding that the person committed the offence constitutes a qualified finding of guilt only. In the Magistrates’ Court, if a person is found not guilty because of mental impairment, they must be discharged by the court.
However, the Office of Public Prosecutions may apply to have the matter heard in a higher court where a custodial or non-custodial supervision order (with conditions) can be made. This is a serious matter, and there are important legal factors that must be considered in raising this defence in the higher courts.
-
Where there is a connection between the action for which the person is charged and their mental impairment, they may be eligible to run a defence of mental impairment (CMIUT Act s 20). If this defence is established, that person must be found not guilty because of mental impairment.
A defence of mental impairment requires the client’s instructions and evidence from a treating practitioner, that at the time of the offence, the person was experiencing a mental impairment that had the effect that:
the person did not know the nature and quality of the conduct; or
the person did not know that the conduct was wrong (i.e. they could not reason with a moderate degree of sense and composure about whether the conduct, as perceived by reasonable people, was wrong).
An assessment of the offender’s mental state must take place as soon as possible after the alleged crime. If a report is not obtained as soon as possible, this could jeopardise a successful defence, as a report obtained significantly later than the alleged offence may not be able to address the relevant criteria for a successful defence.
It is vital for a person to have proper legal advice about the defence of mental impairment, given the serious legal implications, especially if the matter is heard in the higher courts. (See Chapter 2.3: Legal services that can help.)
Fitness to stand trial and the defence of mental impairment
Chapter: 8.3: Disability and criminal justice
Contributor: Liam McAuliffe, Crown Prosecutor
Current as of: 1 September 2024
Law Handbook Page: 725
Next Section: Custodial and non-custodial supervision orders
