Monday, 21 February 2011

Fit to plead?

Advocates who regularly appear in summary courts know well the questions associated with mental impairment and fitness to plead arguments.

Late last year the Supreme Court decided in C L (a minor) v Lee & ors [2010] VSC 517 that the Children's Court couldn't determine if an accused person was fit to be tried and so the charges had to be referred to the County Court.

In Victoria, the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 prescribes the procedures for determining if an accused person was mentally impaired at the time of alleged offending, or is fit to stand trial when charges against them are heard at court.

The legislation

Fitness to stand trial is in section 6 of that Act:

6. When is a person unfit to stand trial?

(1) A person is unfit to stand trial for an offence if, because the person's mental processes are disordered or impaired, the person is or, at some time during the trial, will be—

(a) unable to understand the nature of the charge; or

(b) unable to enter a plea to the charge and to exercise the right to challenge jurors or the jury; or

(c) unable to understand the nature of the trial (namely that it is an inquiry as to whether the person committed the offence); or

(d) unable to follow the course of the trial; or

(e) unable to understand the substantial effect of any evidence that may be given in support of the prosecution; or

(f) unable to give instructions to his or her legal practitioner.

(2) A person is not unfit to stand trial only because he or she is suffering from memory loss.

The wrinkle with this Act comes from its very narrow meaning of 'court', contained in the definitions in s 3:

court means Supreme Court or County Court and in section 47 includes Magistrates' Court

Right there is the problem for applying any of this Act in summary courts. To some extent, s 5 overcomes this, but only for mental impairment questions:

5. Application to Magistrates' Court

(1) The defence of mental impairment as provided for in section 20(1) and the presumption in section 21(1) apply to summary offences and to indictable offences heard and determined summarily.

(2) If the Magistrates' Court finds a person not guilty because of mental impairment of a summary offence or an indictable offence heard and determined summarily, the Magistrates' Court must discharge the person.

The Children's Court can apply this provision because of Children, Youth and Families Act 2005 s 528, which bestows the powers of the Magistrates' Court upon the Children's Court. (See also C L v Lee at [25].)

For a variety of reasons, Lasry J held that the Children's Court couldn't determine if an accused person was fit to plead when charged with an indictable offence that can be tried summarily. He mentioned that last bit almost in passing, in [17] of the judgment. Because of that, I think there just might be some uncertainty about the situation for purely summary offences.

Crimes (Mental Impairment and Unfitness to be Tried) Act

The Supreme Court considered this Act didn't confer power on the Children's Court to determine fitness to be tried.

For one thing, there's no express provision saying so: [25].

And s 7 of the Act expressly refers to a special jury to determine the issue: [28]. (And for that matter, s 6 refers to an accused who is unfit to stand trial.)

There is an express, albeit limited, power for mental impairment: [29]. (Probably an application of the principle of statutory interpretation expressio unius est exclusio alterius — express reference to one matter indicates other matters are excluded.)

And the second reading speech suggests a limited application: [30].

Children, Youth and Families Act

Again, there's no express provision for fitness to be tried in this Act: [36].

Nor do ss 516 or 522 help. Although s 522 provides that the proceedings must be understandable to a child. The Court decided that didn't impliedly incorporate a jurisdiction to consider fitness to be tried: [40] - [46].

I reckon one of the telling responses to this argument is at [46], and also [17]: an accused person can't consent to summary jurisdiction as required by Children, Youth and Families Act s 356 — or for adults, Criminal Procedure Act 2009 s 30 — if they're not fit to be tried.

(Section 8 of the Crimes (Mental Impairment and Unfitness to be Tried) Act caters for committal of the person who's not fit to give instructions.)

At [51] the Court held that if a child isn't fit to be tried, their charges must proceed to a committal hearing.

That still leaves unanswered the question about what happens for purely summary offences that can't be tried indictably?

Common law

The Court also held that the common law didn't allow the Children's Court to consider fitness to be tried.

The Children's Court — like all statutory courts and tribunals — possesses only those powers conferred by legislation and by necessary implication. This is the implied-not-inherent powers doctrine espoused in Grassby v The Queen (1989) 168 CLR 1 at 16.

The DPP argued that a court of summary jurisdiction had not power to determine fitness to plea: [56], relying on Pioch v Lauder (1976) 27 FLR 79. The Court discussed it at [57]. Because it's not available online, I'll extract the relevant part from 84 - 86:

What then of the defendant and his disabilities? It was argued for the defendant and conceded by the Crown that he should be treated as if he were insane. This rather bizarre and no doubt offensive result seems to follow from the authorities (R v Pritchard (1836) 7 Car & P 304; 173 ER 135; R v Berry [186] 1 QB 447; R v Presser [1958] VR 45; R v Podola [1960] 1 QB 325). 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. I consider that notwithstanding the defendant's disabilities a committal hearing may proceed since no plea is required from him in such proceedings. Upon him being indicted before the Supreme Court a special jury should be empanelled to try the question of the defendant's fitness to plead. If the jury found in accordance with the facts found by the learned stipendiary magistrate and set out in the special case then this Court would have no option but to apply the provisions of s 20B of the Crimes Act, made to apply to the offence created by s 131C by s 4 of the Interpretation Ordinance, and commit the defendant to be kept in custody until the pleasure of the Governor-General be known.

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. Of course, if the defendant to a charge of simple offence appears to a magistrate to fall within the provisions of the Mental Defectives Ordinance 1940-1969, his case may, so to speak, be disposed of by his being dealt with under that Ordinance. However, the defendant in this case is not a mental defective as defined. The researches of counsel and my own researches have failed to find any authority either in text-books or reports which helps with the problem. It is probably not a frequent occurrence because people suffering from the disabilities which the learned stipendiary magistrate has found afflict the defendant are, one hopes, not very numerous and because also those assisting such a person charged with a simple offence might take it upon themselves to enter a plea of guilty under the mistaken impression that a finding of inability to plead would lead to the defendant's confinement during the Governor-General's pleasure.

What then is the learned stipendiary magistrate to do in this case? It is clear that the defendant is not fit to plead and should be treated as though he were insane which he is not. No authority exists for the learned stipendiary magistrate to order the defendant's detention to await the pleasure of the Governor-General and yet plainly, it seems to me, it would not be proper to proceed with his summary trial. I was urged by Mr. Chow for the Crown to direct the magistrate to proceed as for a minor indictable offence and commit the defendant for trial if a prima-facie case should be made out. However, I have found that this is a simple offence and I do not consider that the learned stipendiary magistrate should properly reach the opinion "that the charge is a fit subject for prosecution by indictment" simply because of the defendant's disabilities. It would no doubt be an easier and tidier way of disposing of the defendant to commit him for trial and on the assumption that a jury empanelled for the purpose would find him to be unfit to plead as the learned stipendiary magistrate has found him to be then have this Court order him to be kept in strict custody to await the Governor-General's pleasure. A simple legislative amendment could give a magistrate power to make such an order in cases such as the defendant's but the power does not exist at present.

After anxious consideration I have come to the conclusion that the learned stipendiary magistrate, having reached the conclusion he has reached as to the defendant's capacity, should simply go no further and desist from hearing the charge against him because of his unfitness. There is no other course consonant with justice for the learned stipendiary magistrate to adopt.

That case was applied in Ebatarinja v Deland (1998) 194 CLR 444.

The DPP also argued that the Crimes (Mental Impairment and Unfitness to be Tried) Act covers the field on fitness to be tried, which means summary courts have no power conferred to determine such a question, and that it's always been a jury question: [61] & [62].

Lasry J also considered a previous Children's Court decision of Victoria Police v NL [2009] V Ch C 5, but considered it wasn't correct in concluding the Children's Court could consider fitness to plead: [67].

Instead, His Honour considered the proper remedy was to recommend the Government amend the legislation: [68] and [80] ff.


The Court also considered the Charter of Human Right and Responsibilities Act 2006, but — in short — decided that didn't affect the outcome of this appeal either.


It seems pretty hard to argue with Lasry J's analysis of the legislation and cases, and in any event, his decision binds summary courts, so the law is now that Children's and Magistrates' Courts can't consider the fitness to be tried of an accused person.

It seems that the effect of this case, applying Pioch v Lauder (1976) 27 FLR 79, is that if an accused person charged with only summary offences might be unfit to be tried, then the charges must be adjourned to a date to be fixed or stayed permanently.

I can see several problems with this.

If an accused person claims they're unfit to be tried, surely a summary court must have some evidence before it in order to make at least a preliminary assessment of the claim? Otherwise, merely raising the claim would defeat all summary charges.

Or even if the accused provides expert psychological or medical material suggesting they are unfit to be tried, what if the prosecution disputes or doubts that evidence? It seems counter intuitive that the Court can't even consider if the claim is properly made.

And if the claim is made out and the charges must be adjourned, what mechanism will the prosecution use to bring them back before the Court?

This sort of issue was touched on in DPP v Hogg; DPP v Cyberman (2006) 162 A Crim R 564 (dealing with the old 'instant summons' process in the now-repealed s 30 of the Magistrates' Court Act 1989), but is unresolved. The problem is if a valid charge is filed, but there's some problem with a summons (or it's answered), there's no express mechanism for issuing a fresh stand-alone summons without filing a new charge — which would be statute barred contrary to Criminal Procedure Act 2009 s 7.

I don't pretend to know the answers, but with any luck, now that C L v Lee has brought them into stark relief, Parliament will amend the legislation and the problems will be sorted.


Patrick said...

What was the disability in Pioch v Lauder?

Kyle said...

The headnote describes it this way:

"The defendant was charged on information with an aggravated assault. At the hearing of the information before a stipendiary magistrate it was established that the defendant was a deaf mute, that he was a full blood aboriginal brought up in a tribal community, that he had not absorbed the cultural or moral values of either tribal or European society, and that he was at least of average intelligence with no evidence of mental incapacity.

Based upon those facts, and his finding that the defendant understood nothing of the proceedings, the magistrate stated a special case for the opinion of the Supreme Court asking, inter alia, whether it would be contrary to law to hear the information, and if so, what other powers the court of summary jurisdiction would have in relation to the defendant."

Patrick said...

Thanks! I was wondering how a person could not understand his trial but not fit under definition for "insane".