Crimes Mental Impairment consultation paper.pdf - Victorian Law ...

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6 The power to determine unfitness to stand trial Express power to determine unfitness to stand trial in summary courts 6.32 Like Victoria, the Northern Territory and Queensland do not have provisions allowing courts of summary jurisdiction to determine the issue of unfitness to stand trial. 41 6.33 The Australian Capital Territory, South Australia, Tasmania and Western Australia allow magistrates to determine the issue of unfitness to stand trial. 42 In the Australian Capital Territory, the Magistrates’ Court has limited jurisdiction to determine unfitness to plead. 43 If the question is raised in the Magistrates’ Court (other than at a committal hearing) and the court is satisfied that there is a ‘real and substantial question’ about the accused person’s unfitness to plead, the court must reserve the question for investigation. 44 However, if the issue of unfitness to plead arises during a committal hearing, the committal hearing must be completed. If the accused person is committed, then the question of unfitness to plead is reserved for the Supreme Court. 45 There is a discretionary power not to proceed with the investigation into unfitness and dismiss the charge. 46 The test for determining unfitness to stand trial is not adapted for the Magistrates’ Court and is largely based on the Presser criteria. 6.34 In South Australia, if there are ‘reasonable grounds’ to suppose that a person is mentally unfit to stand trial, the magistrate may order an investigation into the unfitness to stand trial. 47 There is no unfitness to stand trial test specifically adapted for the Magistrates’ Court. The test appears to be flexible enough to apply to both higher and lower courts. If the question of unfitness arises at a preliminary examination for an indictable offence, the question of whether there should be an investigation must be reserved for the court of trial. 48 6.35 Like the Australian Capital Territory, magistrates in Tasmania have limited jurisdiction to determine unfitness to stand trial. 49 If a ‘real and substantial question’ is raised relating to the accused person’s unfitness to stand trial (other than at a preliminary proceeding for an indictable offence), the court has the power to reserve the question of the accused person’s unfitness to stand trial for investigation. 50 However, if the issue of unfitness to stand trial is raised at a preliminary proceeding for an indictable offence, the question is reserved for determination by the Supreme Court. 51 There is no test for determining unfitness to stand trial adapted for the Magistrates’ Court. 6.36 Finally, in Western Australia, the question of unfitness to stand trial may be raised at any time before or during the hearing of the accused person in the Magistrates’ Court. 52 The magistrate then decides the question of the accused person’s unfitness to stand trial on the balance of probabilities. 53 The test to determine unfitness to plead is not adapted for the Magistrates’ Court and is largely based on the Presser criteria. 41 Part IIA of the Criminal Code Act 1983 (NT) that provides for a process to determine fitness to stand trial defines ‘court’ in section 43A to mean the Supreme Court. Section 43L provides that a jury decides if an accused person is fit to stand trial. In Queensland, the Queensland Mental Health Court has jurisdiction to determine fitness to plead in relation to summary offences, but only when the accused person is also charged with an indictable offence. There is no equivalent procedure available for summary offences in the Queensland Magistrates’ Court. It is unclear what happens when this issue is raised in the Magistrates’ Court, but there does not appear to be a standard practice. See Mental Health Act 2000 (Qld) s 257(3); Legal Aid Queensland – Criminal Law Duty Lawyer Handbook (5th ed, 2012) 208. 42 O’Carroll, above n 39, 60. 43 Crimes Act 1900 (ACT) s 310. 44 Ibid s 314(1). 45 Ibid s 314(2). 46 Ibid s 315(4). 47 Criminal Law Consolidation Act 1935 (SA) ss 5, 269A, 269J. The Criminal Law Consolidation Act 1935 (SA) defines ‘court’ to generally include a court of summary jurisdiction and ‘judge’ to include magistrates. 48 Ibid s 269J. 49 Criminal Justice (Mental Impairment) Act 1999 (Tas) s 4. The Criminal Justice (Mental Impairment) Act 1999 (Tas) enables the provisions on unfitness to stand trial to apply to all courts. 50 Ibid s 10. 51 Ibid s 10(2). 52 Criminal Law (Mentally Impaired Accused) Act 1996 (WA) s 11. Section 4 enables the provisions on fitness to stand trial to apply to all courts exercising criminal jurisdiction, allowing magistrates to determine the issue. 53 Ibid s 12(1). 121
Victorian Law Reform Commission Review of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997: Consultation Paper 6.37 The jurisdictional comparison shows that if the Magistrates’ Court is given the power to conduct investigations into unfitness to stand trial, there are a number of other variables that will need to be determined. These include: • which offences the procedure would apply to (for example, all offences that can be heard and determined in the Magistrates’ Court or only indictable offences triable summarily) • when the question of unfitness to stand trial must be raised to bring it within the Magistrates’ Court’s jurisdiction (for example, whether the question can be raised at any time during Magistrates’ Court proceedings or alternatively, at any time other than at a committal proceeding) • the trigger for an investigation into unfitness to stand trial in the Magistrates’ Court (for example, the investigation could be conducted when there is ‘a real and substantial question’ as to unfitness or when there are ‘reasonable grounds’ for the investigation) • whether the Magistrates’ Court should retain a discretion not to proceed with an investigation into unfitness to stand trial (for example, the discretion to adjourn the matter to enable the accused person to become fit or the discretion to refer the investigation into unfitness to stand trial to a higher court) • whether a special test to determine unfitness to stand trial should apply in the Magistrates’ Court (the requirement that the accused person be able to challenge a juror, for example, would be irrelevant in this jurisdiction). Questions 48 Should the Magistrates’ Court have the power to determine unfitness to stand trial If yes, consider: (a) Should the power to determine unfitness to stand trial be limited to indictable offences triable summarily or include certain summary offences (b) When can the question of unfitness to stand trial be raised to bring it within the Magistrates’ Court’s jurisdiction (c) What should trigger the Magistrates’ Court’s investigation into unfitness (d) Should the Magistrates’ Court retain a discretion not to proceed with the investigation into unfitness to stand trial (e) What test for determining unfitness to stand trial should apply in the Magistrates’ Court 49 What are the cost implications of giving the Magistrates’ Court the power to determine unfitness to stand trial 122
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