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

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4.5 As stated in [4.11] below, under section 7(1) of the CMIA an accused person is presumed
to be fit to stand trial. Thus, strictly speaking, the issue if it arises is not an issue of
fitness to stand trial but is an issue of unfitness to stand trial. Doubtless for that reason
Part 2 of the CMIA is headed ‘Unfitness to stand trial’, and the pivotal section of Part 2,
section 6, lays down the statutory test of unfitness to stand trial. Despite this, Part 2 goes
on repeatedly to refer to ‘the question of a person’s fitness to stand trial’. In order to be
conceptually correct, this paper will refer to ‘unfitness to stand trial’ unless the context
requires otherwise (for example, in referring to the law prior to the CMIA and quoting a
section of the CMIA which uses the expression ‘the question of a person’s fitness to stand
trial’ or decisions of courts which use that expression).
Unfitness to stand trial prior to the CMIA: ‘fitness to plead’
4.6 From at least as early as the fourteenth century, the question of whether an accused
person was fit to plead was a concern for courts. 5 Medieval court procedure required an
accused person to enter a plea of guilty or not guilty to an offence. The inability or refusal
to do so would prevent the trial from proceeding.
4.7 To circumvent this procedural hurdle, an alternative procedure was devised that required
a jury to decide between whether the failure to plead was due to a genuine inability to
enter a plea (‘mute by visitation of God’) or out of choice (‘mute by malice’). Those who
were found by the jury to be ‘mute by visitation of God’ would have a plea of not guilty
entered on their behalf, based on the assumption that it would have been the plea they
would have entered had they been able. Those who were found by the jury to be ‘mute
by malice’, on the other hand, would be subject to the practice of peine forte et dure
(‘strong and hard suffering’). These people were starved and gradually crushed under
increasing weights, in an attempt to force them to plead, or until they died.
4.8 The law in relation to those who were ‘mute by visitation of God’ that forms the basis
of the modern law on unfitness to stand trial remained unclear until the decisions of
R v Dyson 6 and R v Pritchard 7 in the 1830s. These cases are discussed in more detail
at [4.21]–[4.23].
4.9 In Victoria, the law on fitness to plead was adopted through the introduction of
section 393(1) of the Crimes Act 1958 (Vic) that provided for the ‘strict custody until the
Governor’s pleasure shall be known’ of accused people tried for indictable offences in the
Supreme Court or County Court and who were found unfit to plead. Section 393(1) was
based on the wording of section 2 of the Criminal Lunatics Act 1800, the first statutory
provision introduced in Great Britain concerning the process in relation to accused people
who may be unfit to plead. Section 393(2) of the Crimes Act also provided the court
with the option of making any order it thinks fit to enable the accused person to receive
appropriate services under mental health legislation, after having regard to any evidence
before it relating to the person’s mental health or intellectual disability.
4.10 The process in relation to unfitness to stand trial was not set out in detail in legislation
until the abolition of the Governor’s pleasure system and the introduction of the CMIA.
The CMIA expanded the expression ‘unfitness to plead’ to ‘unfitness to stand trial’ to
reflect that an accused person must be fit at any stage of the proceedings. The CMIA did
not alter the common law test for unfitness to plead, but made a number of important
changes to the process. It gave accused people, who may be unfit to stand trial, the
opportunity of becoming fit (during a 12-month adjournment). It also introduced a
procedure to have the evidence against them tested (with a special hearing process).
Under the Governor’s pleasure system, people were neither given the opportunity to
become fit nor to have the evidence against them tested.
5 Warren J Brookbanks, ‘Fitness to Plead and the Intellectually Disabled Offender’ (1994) 1(2) Psychiatry, Psychology and Law 171, 172.
6 (1831) 1 Lewin 62; 168 Eng Rep 960.
7 (1836) 7 C&P 303; 173 ER 135.
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