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

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The test in Victoria: the ‘Presser criteria’
4.24 In Victoria, the test for unfitness to stand trial derives from the judgment of Justice TW
Smith in the case of R v Presser (Presser). 33 Justice TW Smith expanding on the Pritchard
criteria, identified seven criteria (the ‘Presser criteria’), to determine unfitness to stand trial:
• ability to understand the charge
• ability to plead to the charge and to exercise the right to challenge jurors
• ability to understand generally the nature of the proceedings (that it is an inquiry as to
whether the accused person did what they are charged with)
• ability to follow the course of the proceedings
• ability to understand the substantial effect of any evidence that may be given against
them
• ability to make their defence or answer to the charge, or
• ability to give any necessary instructions to their legal counsel. 34
4.25 The CMIA incorporates the test for unfitness to stand trial as set out in the decision of
Presser. 35 The CMIA provides that an accused person is unfit to stand trial for an offence
if, because their mental processes are disordered or impaired, they are or, at some time
during the trial, will be:
• unable to understand the nature of the charge
• unable to enter a plea to the charge and to exercise the right to challenge jurors or
the jury
• unable to understand the nature of the trial (that it is an inquiry as to whether the
accused person committed the offence)
• unable to follow the course of the trial
• unable to understand the substantial effect of any evidence that may be given in
support of the prosecution, or
• unable to give instructions to their legal practitioner. 36
Issues in relation to the test for determining unfitness to stand trial
4.26 In its preliminary research, the Commission identified a number of possible issues
concerning the current operation of the test and criteria for determining unfitness to
stand trial. These include:
• whether the test should define the mental condition the accused person must have to
be found unfit to stand trial
• whether the test should be based on the decision-making capacity or effective
participation of the accused person
• whether the accused person’s rationality should be taken into consideration in some
way in the test for unfitness to stand trial
• whether the existing Presser criteria should be changed
• the role of support measures in assessments of unfitness to stand trial
• whether the current Presser criteria are sufficiently clear for experts to assess unfitness
to stand trial.
33 R v Presser [1958] VR 45.
34 Ibid 48.
35 Victoria, Parliamentary Debates, Legislative Assembly, 18 September 1997, 187 (Jan Wade, Attorney-General).
36 Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) s 6.
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