Previous Topic

Next Topic

Book Contents

Book Index

10.1 – Investigations into Unfitness to Stand Trial

Click here to obtain a Word version of this document.

COVID – 19 Emergency Measures

The COVID-19 Omnibus (Emergency Measures) Act 2020 and the COVID-19 Omnibus (Emergency Measures) (Criminal Proceedings and Other Matters) Regulations 2020 introduced the following temporary changes relevant to this chapter:

  • Fitness to stand trial must be determined by a judge sitting alone. Additional provisions are in force to ensure the process of determining fitness, and the post-hearing process continue as usual, with amendments reflecting the fact that fitness is being determined by the court rather than a jury (Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 ss 92-99).

For more information on the COVID-19 emergency measures, see the College’s Coronavirus Emergency Act Summary.

Overview

  1. People cannot be tried for criminal offences unless they are fit to stand trial (R v Dashwood [1943] KB 1; R v Benyon [1957] 2 QB 111; Eastman v The Queen (2000) 203 CLR 1).
  2. The issue of fitness to stand trial relates to the accused’s condition at the time of the trial. This is in contrast to the defence of mental impairment, which relates to the accused’s condition at the time of the offence (see Mental Impairment) (R v Dennison NSWCCA 3/3/1988; Ngatayi v The Queen (1980) 147 CLR 1; R v Presser [1958] VR 45).
  3. The Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) (the Act) [1] sets out the procedure for determining a person’s fitness to stand trial. This procedure applies to all trials, regardless of when the alleged offences were committed (Schedule 3).
  4. According to the Act, when a real and substantial question is raised concerning a person’s fitness to stand trial, an investigation must be held to determine whether s/he is unfit (ss8, 9). The outcome of that investigation must be determined by a specially convened jury (s11). These investigations are the focus of this Chapter.
  5. If that jury finds the person unfit to stand trial, the judge must determine whether it is likely that s/he will become fit to stand trial within 12 months. If it is likely that s/he will recover within that time, the judge must adjourn the matter. If it is not likely, a special hearing must be held to determine whether that person committed the offence charged (ss12, 15). These special hearings are examined in Special Hearings.

    When must an Investigation into the Accused’s Fitness be Held?

  6. A judge must order an investigation into the accused’s fitness to stand trial if it appears that there is a "real and substantial question" about that issue (s9).
  7. A "real and substantial question" will exist whenever it would be open to a properly instructed jury to conclude that the accused was not fit to stand trial (Eastman v The Queen (2000) 203 CLR 1; R v Alford [2005] VSC 404; Kesavarajah v The Queen (1994) 181 CLR 230).
  8. To order an investigation, a judge does not need to have formed a prima facie view that the accused is unfit to be tried. Fitness to be tried is a jury question, and must be left to the jury to determine at an investigation unless no reasonable jury could conclude that the accused was unfit (s7(3); Kesavarajah v The Queen (1994) 181 CLR 230; R v Khallouf [1981] VR 360).
  9. The issue of the accused’s fitness should be raised by some evidence before the judge. For example, assertions by counsel that the accused is unfit should be accompanied by psychologists reports, affidavits, evidence from the bar table or references to in-court behaviour (R v Coffee NSW SC 20/11/1992).
  10. The obligation to order an investigation is part of the judge’s duty to ensure a fair trial. Where the accused is unrepresented, or has previously been found unfit to be tried, the judge must be particularly careful to ensure that the trial is not unfair (Heffernan v The Queen (2005) 194 FLR 370; Eastman v The Queen (2000) 203 CLR 1).
  11. Failing to order an investigation where there is a real and substantial question about the accused’s fitness to stand trial will constitute a fundamental defect in the trial procedure, rendering the trial a nullity (Eastman v The Queen (2000) 203 CLR 1).

    Procedure for Ordering an Investigation

  12. The issue of the accused’s fitness to stand trial may be raised at any stage of the proceedings by the prosecution, the defence or the judge (s9; Eastman v The Queen (2000) 203 CLR 1; R v Presser [1958] VR 45).
  13. The procedure for ordering an investigation differs, depending on when the issue of fitness arises. If it arises during a committal hearing:
  1. If the question of fitness arises during a trial, the trial must be adjourned or discontinued to allow an investigation to be conducted (s9).
  2. The potential obligation to order an investigation into the accused’s fitness continues until the jury’s verdict has been delivered. A judge may therefore be required to adjourn a trial and order an investigation after the close of the prosecution case, or even after final addresses to the jury – because the accused must be able to make a defence (see below), and so may be unfit if s/he is not able to respond to jury questions (especially if s/he is unrepresented) (Kesavarajah v The Queen (1994) 181 CLR 230).
  3. As the issue of the accused’s fitness to stand trial may be raised more than once in the same proceedings, the fact that an investigation has previously been held does not prevent a judge from ordering another investigation (s9(3)).
  4. A judge may vacate an order for an investigation prior to empanelling a jury. This may be suitable where the order was made in error, or if the question about the accused’s fitness has been resolved (R v Demicoli [2006] VSCA 69).

    Nature of an Investigation

    Role of the Jury

  5. The question of the accused’s fitness to stand trial is a question of fact, which must be determined at an investigation by a jury empanelled for that purpose (s7(3)).
  6. It is presumed that every person is fit to stand trial. The jury’s role in an investigation is to determine, on the balance of probabilities, whether that "presumption of fitness" has been rebutted (s7).
  7. The provisions of the Juries Act 2000 apply to an investigation (s11(2)).

    Evidence

  8. The court must hear any relevant evidence and submissions put by the prosecution or the defence (s11(1)(a)).
  9. The trial judge may also call evidence on his/her own initiative, if s/he is of the opinion that it is in the interests of justice to do so (s11(1)(b)(i)).
  10. The trial judge may require the accused to undergo a medical examination, and require the results of that examination to be put before the court (s11(1)(b)(ii)-(iii)).

    Onus of Proof

  11. The standard of proof in an unfitness investigation is the civil standard of the balance of probabilities (s7(3)(b)).
  12. Which party will bear the onus of proof depends on who raises the issue:
  1. According to section 6(1) of the Act, to find a person unfit to stand trial the jury must be satisfied, on the balance of probabilities, that because his/her mental processes are disordered or impaired, s/he is (or will be at some time during the trial):
    1. Unable to understand the nature of the charge; or
    2. Unable to enter a plea; or
    3. Unable to exercise the right to challenge jurors or the jury pool; or
    4. Unable to understand the nature of a trial as an inquiry into whether the accused committed the offence; or
    5. Unable to follow the course of the trial; or
    6. Unable to understand the substantial effect of any evidence that may be given in support of the prosecution; or
    7. Unable to instruct counsel.
  2. There are two parts to this test. The jury must find that:
    1. The accused currently suffers from at least one of the abovementioned incapacities, or will at some time during the trial; and
    2. That incapacity is caused by the accused’s impaired or disordered mental processes.

    Relevance of Common Law Authorities

  3. The statutory test is largely derived from the common law test for fitness to stand trial. Common law authorities will therefore be relevant when interpreting the statutory test.
  4. Under the common law, a person would be unfit to stand trial if s/he was:
    1. Unable to understand the nature of the charge; or
    2. Unable to plead to the charge or exercise the right of challenge; or
    3. Unable to understand the nature of the proceedings as an inquiry into whether s/he committed the offence charged; or
    4. Unable to follow the course of the proceedings so as to understand what is going on in court in a general sense, even though s/he need not understand the purpose of all the various court formalities; or
    5. Unable to understand the substantial effect of any evidence that may be given against him/her; or
    6. Unable to decide what defence s/he will rely upon or make his/her defence or version of facts known to the court or to counsel (R v Presser [1958] VR 45; Eastman v The Queen (2000) 203 CLR 1).

    Determining the Accused’s Capacities

  5. The jury should determine whether the accused is unfit to stand trial in a common sense fashion – because if the test is applied too literally, it may incorrectly set a threshold for fitness that can only be met by a person of very high intelligence (Sinclair v The King (1946) 73 CLR 316; R v Presser [1958] VR 45).
  6. The fact that the accused could perform better against some of the specified requirements if s/he had greater intelligence, or received additional treatment, is not determinative. The critical question is whether the accused meets the minimum requirements for fitness specified in the Act (R v Rivkin (2004) 59 NSWLR 284; Clarkson v The Queen [2007] NSWCCA 70).
  7. The ability of an accused to follow the course of the trial, and to understand the substantial effect of the evidence, may depend on the complexity of the trial. For example, a greater degree of understanding and capacity may be required for a complex fraud trial than for a trial in which the issues are narrow and well defined (R v Wahlstedt [2003] SADC 172; R v Gillard [2006] SASC 46).
  8. Where counsel will aid the accused during the trial, the jury should take this assistance into account in determining whether s/he is, or will be, able to understand and follow its processes (Ngatayi v The Queen (1980) 147 CLR 1; R v Miller [No 2] [2000] SASC 152).
  9. Poor forensic choices, or counter-productive behaviour, will not, of themselves, render a person unfit to be tried. While the accused must be able to make forensic choices, and instruct counsel on the nature of his/her defence, s/he is not required to make an able defence (Heffernan v The Queen (2005) 194 FLR 370; Eastman v The Queen (2000) 203 CLR 1; Kesavarajah v The Queen (1994) 181 CLR 230; R v Taylor (1992) 77 CCC (3d) 551; R v Presser [1958] VR 45).
  10. A person will not be unfit to stand trial simply because s/he is suffering from memory loss (e.g. s/he cannot remember the facts surrounding the alleged offending) (s6(2); R v Dennison NSWCCA 3/3/1988).
  11. Bizarre or disruptive behaviour does not, of itself, render a person unfit to be tried (Eastman v The Queen (2000) 203 CLR 1; R v Taylor (1992) 77 CCC (3d) 551).
  12. The mere fact that a person refuses to rely on the defence of mental impairment, which may be open on the evidence, does not mean that s/he is unfit to stand trial. A person may rationally reject such an option out of concern for the consequences of a finding of not guilty by reason of mental impairment (R v Bridge [2005] NSWCCA 122).

    Future Unfitness

  13. In assessing whether an accused is fit to be tried, the jury is required to consider both his/her present condition and his/her likely condition during the trial (s6(1)).
  14. The expected length of the trial may affect the jury’s assessment of the accused’s likely future condition. They may take into account the possibility of deterioration over the course of the trial, as well as the risks associated with the disruption of a longer trial (Kesavarajah v The Queen (1994) 181 CLR 230; R v Miller [No 2] [2000] SASC 152).
  15. In cases where the accused’s condition is sensitive to stress, the jury may also take into account the fact that as a trial continues, his/her stress is likely to progressively accumulate. This may be of particular relevance in lengthy trials (R v Wilson [2000] NSWSC 1104).

    Unfitness and Mental Impairment

  16. The fitness of the accused to be tried addresses different issues to the defence of mental impairment. An accused may be unfit to be tried even if s/he is not insane (in either the colloquial sense or the M’Naughten sense) (Ngatayi v The Queen (1980) 147 CLR 1; R v Presser [1958] VR 45).
  17. Similarly, the mere existence of a mental disorder will not mean that the accused is unfit to be tried. There must be some link between the mental disorder and the ability of the accused to understand and participate in the trial process (Heffernan v The Queen (2005) 194 FLR 370; Eastman v The Queen (2000) 203 CLR 1; R v Taylor (1992) 77 CCC (3d) 551).
  18. A mental disorder may produce delusions related to the subject matter of the case, or affect the accused’s ability to have a trusting relationship with his/her counsel, without affecting his/her fitness to be tried (Heffernan v The Queen (2005) 194 FLR 370; Eastman v The Queen (2000) 203 CLR 1; R v Taylor (1992) 77 CCC (3d) 551).

    Impaired or Disordered Mental Processes

  19. While the accused does not need to be insane to be considered unfit to stand trial, his/her incapacity must be caused by impaired or disordered mental processes (Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 s6(1)).
  20. This does not mean that the accused must suffer from a mental illness. A person’s mental processes may be impaired or disordered due to other factors, such as an intellectual impairment, a learning disability or acquired brain injury (R v Miller [No 2] [2000] SASC 152; R v Gillespie (1987) 30 A Crim R 14).
  21. A person’s "mental processes" may also be "impaired or disordered" where impairment impedes the reception rather than the processing of information (R v Abdulla (2005) 93 SASR 208). This means that in some circumstances, a physical impairment such as deafness or a language barrier may fall within s6(1).

    Mandatory Directions at an Investigation

  22. There are three directions that a judge must give at the start of an investigation into the accused’s fitness. The judge must explain to the jury:
    1. That a question has arisen whether the accused is fit to stand trial, and that the purpose of the investigation is to determine that question (s11(3)).
    2. That they may find the person either fit or unfit to stand trial. They are not to determine any other matter (ss11(3), (6)).
    3. That the accused’s fitness to stand trial is to be determined on the balance of probabilities (ss7(3)(b), 11(3)).
  23. The judge may inform the jury of the requirements of the test for fitness to stand trial at the commencement of the hearing or at the conclusion of the evidence.

     

    Notes

[1] All references to legislative sections and schedules refer to the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic).

[2] In such cases, the jury must still determine, on the balance of probabilities, whether the presumption of fitness has been rebutted.

Last updated: 9 June 2020

In This Section

10.1.1 – Charge: Investigations into Unfitness to Stand Trial (Mandatory Preliminary Directions)

10.1.2 – Charge: Criteria for Fitness (Issue Raised by Party)

10.1.3 – Charge: Criteria for Fitness (Issue Raised by Judge)

See Also

Victorian Criminal Charge Book

Part 1: Preliminary Direction

1.1 – Introductory Remarks

1.2 – Jury Empanelment

1.3 – Selecting a Foreperson

1.4 – The Role of Judge and Jury

1.5 – Decide Solely on the Evidence

1.6 – Assessing Witnesses

1.7 – Onus and Standard of Proof

1.8 - Separate Consideration

1.9 - Alternative verdicts

1.10 – Trial Procedure

1.11 - Consolidated preliminary directions

Part 2: Directions in Running

2.1 - Views

2.2 - Providing Documents to the Jury

2.3 – Other Procedures for Taking Evidence

2.4 – Unavailable witnesses

2.5 – Witness invoking Evidence Act 2008 s128

Part 3: Final Directions

3.1 - Directions Under Jury Directions Act 2015

3.2 - Overview of Final Directions

3.3 - Review of the Role of the Judge and Jury

3.4 - Review of the Requirement to Decide Solely on the Evidence

3.5 - Review of the Assessment of Witnesses

3.6 - Circumstantial Evidence and Inferences

3.7 - Review of the Onus and Standard of Proof

3.8 - Review of Separate Consideration

3.9 - Judge’s Summing Up on Issues and Evidence

3.10 - Alternative Verdicts

3.11 - Unanimous Verdicts and Extended Jury Unanimity

3.12 - Taking Verdicts

3.13 - Perseverance and Majority Verdict Directions

3.14 - Intermediaries and ground rules explained

3.15 - Concluding Remarks

3.16 - Consolidated final directions

Part 4: Evidentiary Directions

4.1 - The Accused as a Witness

4.2 - Child Witnesses

4.3 - Character Evidence

4.4 - Prosecution Witness's Motive to Lie

4.5 - Confessions and Admissions

4.6 - Incriminating Conduct (Post Offence Lies and Conduct)

4.7 - Corroboration (General Principles)

4.8 - Delayed Complaint

4.9 - Distress

4.10 - Prosecution Failure to Call or Question Witnesses

4.11 - Defence Failure to Call Witnesses

4.12 - Failure to Challenge Evidence (Browne v Dunn)

4.13 - Identification Evidence

4.14 - Opinion Evidence

4.15 - Previous Representations (Hearsay, Recent Complaint and Prior Statements)

4.16 - Silence in Response to People in Authority

4.17 - Silence in Response to Equal Parties

4.18 - Tendency Evidence

4.19 - Coincidence Evidence

4.20 - Other forms of other misconduct evidence

4.21 - Unfavourable Witnesses

4.22 - Unreliable Evidence Warning

4.23 - Criminally Concerned Witness Warnings

4.24 - Prison Informer Warnings

4.25 - Word Against Word Cases

4.26 - Differences in a Complainant’s Account

4.27 - Alibi

Part 5: Complicity

5.1 - Overview

5.2 - Statutory Complicity (From 1/11/14)

5.3 - Joint Criminal Enterprise (Pre-1/11/14)

5.4 - Extended Common Purpose (Pre-1/11/14)

5.5 - Aiding, Abetting, Counselling or Procuring (Pre-1/11/14)

5.6 - Assist Offender

5.7 – Commonwealth Complicity (s 11.2)

5.8 – Commonwealth Joint Commission (s 11.2A)

5.9 - Innocent Agent (Victorian Offences)

5.10 - Commission by Proxy (Commonwealth offences)

Part 6: Conspiracy, Incitement and Attempts

6.1 - Conspiracy to Commit an Offence (Victoria)

6.2 - Conspiracy (Commonwealth)

6.3 - Incitement (Victoria)

6.4 - Attempt (Victoria)

Part 7: Victorian Offences

7.1 - General Directions

7.2 - Homicide

7.3 - Sexual Offences

7.4 - Other Offences Against the Person

7.5 - Dishonesty and Property Offences

7.6 - Drug Offences

7.7 – Occupational Health and Safety

7.8 - Offences against justice

Part 8: Victorian Defences

8.1 - Statutory Self-Defence (From 1/11/14)

8.2 - Statutory Self-Defence (Pre - 1/11/14) and Defensive Homicide

8.3 - Common Law Self-Defence

8.4 - Mental Impairment

8.5 - Statutory Intoxication (From 1/11/14)

8.6 - Statutory Intoxication (23/11/05 - 31/10/14)

8.7 - Common Law Intoxication

8.8 - Automatism

8.9 - Statutory Duress (From 1/11/14)

8.10 - Statutory Duress (23/11/05 - 31/10/14)

8.11 - Common Law Duress

8.12 - Provocation

8.13 - Suicide Pact

8.14 - Powers of arrest

8.15 - Police search and seizure powers without a warrant

Part 9: Commonwealth Offences

9.1 - Commonwealth Drug Offences

9.2 - People Smuggling (Basic Offence)

9.3 - People Smuggling (5 or More People)

9.4 - Use of carriage service for child pornography material

Part 10: Unfitness to Stand Trial

10.2 – Special Hearings