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

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or rational appreciation of the proceedings. 63 This recommendation was adopted in
section 170 of the Criminal Justice and Licensing (Scotland) Act 2010 (Scot). 64
4.47 The South Australian test for unfitness to stand trial incorporates the requirement of rationality
in each criterion for fitness to stand trial. Section 269H of the Criminal Law Consolidation
Act 1935 (SA) provides that an accused person is not fit to stand trial if they are unable to
• understand, or to respond rationally to, the charge
• exercise (or to give rational instructions about the exercise of) procedural rights, or
• understand the nature of the proceedings, or to follow the evidence.
4.48 The New South Wales Law Reform Commission expressed a preliminary view that the
current test for determining unfitness to stand trial, that does not require an accused
person’s decisions to be rational, is unsatisfactory because it sets too low a standard for a
fair trial. 65 The New South Wales Law Reform Commission put forward two options:
• amend relevant criteria to indicate the need for rationality in respect of those criteria,
in a similar way to South Australia, or
• introduce a general legislative requirement that an accused person be able to make
rational decisions in relation to their participation in the trial before being considered
fit to stand trial. 66
4.49 The Law Commission of England and Wales, on the other hand, did not propose that
any new test be qualified with a requirement for rationality in respect of that test. Its
proposed test focuses on the ‘process of understanding and reasoning as opposed to
the content of the decision that is eventually arrived at’. 67 However, the test does not
necessarily exclude rationality. It requires a person to have the capacity to engage in a
rational thought process but does not require a person to arrive at a rational decision.
In this way, the test respects a person’s autonomy and their choice to make unwise
decisions. The irrationality that would find a person unfit to stand trial would therefore be
driven by the mental illness, intellectual disability or cognitive impairment. 68
4.50 In Victoria, the argument that the requirement of rationality is inherent in the Presser
criteria remains open, however, the link between them has not been expressly articulated. 69
Question
7 Should the accused person’s capacity to be rational be taken into account in
the test for unfitness to stand trial
If yes, is this best achieved:
(a) by requiring that each of the Presser criteria, where relevant, be exercised
rationally
(b) by requiring that the accused person’s decision-making capacity or effective
participation be exercised rationally, if a new test based on either of these
criteria is recommended, or
(c) in some other way
63 Scottish Law Commission, above n 59, 48–9.
64 Section 170 of the Criminal Justice and Licensing (Scotland) Act 2010 (Scot) inserts a new section 53F into the Criminal Procedure (Scotland)
Act 1995 (Scot).
65 New South Wales Law Reform Commission, above n 61, 9.
66 Ibid.
67 Law Commission, above n 42, 65.
68 Ian Freckelton, ‘Rationality and Flexibility in Assessments of Fitness to Stand Trial’ (1996) 19(1) International Journal of Law and Psychiatry
39, 51.
69 Ibid 45.
63