...trial. There is no detailed definition of 'fitness for trial' in either the Queensland Criminal Code or the Mental Health Act. Most recently, the Queensland Court of Appeal in Re: McElligott [2002] QCA 464 interpreted the specific definition of 'fit for trial' contained in the Mental Health Act 2000 (Qld). This article reviews relevant authority and suggests specific areas of inquiry for an assessment of fitness for trial. Proposals for law reform in Queensland are also made. Given that the Mental Health Court, rather than jury, usually determines the fitness for trial of accused persons with an intellectual disability and that these persons are almost invariably represented by counsel, it is argued that a standard should be adopted in Queensland which is not overly pedantic and impractical. It is also argued that in this context, only the most severe intellectually disability ought render an accused unfit for trial in Queensland and only in circumstances where the evidence or legal issues are complex. The detention and treatment, under involuntary treatment provisions of Mental Health Act (Qld) of persons with intellectual disabilities who have been found 'unfit' to stand trial, is also discussed.

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The requirement that an accused be fit to stand trial is fundamental to the fairness and moral dignity of the trial process. The requirement is also a recognition that the proceedings must be transparent and understandable and that it would be inhumane to subject an accused person to trial and punishment that they do not understand.

Each Australian jurisdiction has legislative provisions which purport to define 'fitness (or unfitness) for trial' and/or set out procedures to be followed when an accused may not be fit for trial. (1)

The Tasmanian jurisdiction is the most recent to legislate a definition of 'unfitness for trial'. Section 8 of the Criminal Justice (Mental Impairment) Act 1999 (Tas) provides:

A person is unfit to stand trial for an offence if, because the person's mental processes are disordered or impaired or for any other reason, the person is unable to understand the nature of the charge; or plead to the charge or to exercise the right of challenge; or understand the nature of the proceedings; or follow the course of the proceedings; or make a defence or answer the charge.

By section 8(2), a person is not unfit to stand trial only because they are suffering form memory loss.

The slightly more detailed definition in the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) refers to the person's ability to understand 'the substantial effect of any evidence that may be given in support of the prosecution' and the ability 'to give instructions to his or her legal practitioner'. Section 6(1)(f) of the Victorian definition, which refers to the ability to 'give instructions', appears to relate to the basic ability of the accused to 'communicate' with their legal representatives. As with most codified definitions, the definition arguably fails to adequately stipulate the need for reasoning and decision-making capacity which the accused must employ before communicating instructions to their legal representative.

Definition of 'Fitness for Trial' in Queensland

The Queensland Criminal Code does not define fitness for trial. By section 613 of the Code, if it appears uncertain that the accused is capable of understanding the proceedings at the trial, so as to be able to make a 'proper defence', a jury is required to be empanelled to find whether the person is so capable. If the jury finds that the accused is not so capable, the court may order the accused to be discharged, or may order the accused to be kept in custody in such place and in such manner as the court thinks fit, until the accused can be dealt with according to law.

Section 613 focuses upon whether the accused is capable of understanding the proceedings so as to be able to make a 'proper defence'. There has been no considered judicial interpretation of the term 'proper defence' from the Queensland jurisdiction.

In 2002 the most modern mental health legislation in Australia--the Mental Health Act 2000 (Qld)--came into effect. Surprisingly, there is no detailed definition of 'fit for trial' in the new Act. The same rather perfunctory definition from the superseded 1974 Act was adopted in the new legislation.

In the dictionary in Schedule 2, 'fit for trial' is defined to mean:

... fit to plead at the person's trial and to instruct counsel and endure the person's trial, with serious adverse consequences to the person's mental condition unlikely.

However, the scope of the terms 'plead' and 'instruct' are unclear in the definition and there is no useful reference to an understanding of the charges or the trial process, a capacity to follow and process the evidence and the capacity to relate the evidence to the person's own situation and to appreciate the possible outcomes.

The absence of a more detailed definition of 'fitness for trial' in either the Queensland Criminal Code or the Mental Health Act 2000 (Qld) is clearly a deficiency. It is also important to emphasise that there are a number of conditions which may cause a person to be 'unfit' for trial other than 'mental illness' as that term is defined in the Mental Health Act.

A large body of case law has developed upon the common law concept of 'fitness for trial'. The Australian High Court has interpreted the Western Australia Criminal Code provision, which is analogous to s613 of the Criminal Code (Qld), and has also considered in more detail the role and effect of counsel at trial. In Re: McElligott, (2) the Queensland Court of Appeal, interpreted the specific definition of 'fit for trial' contained in the Mental Health Act (2000).

English Common Law Authority

The development of the principle that an accused must first be clearly shown to be fit to stand trial before answering to his charges has a long history. (3)

For the purposes of considering the Queensland legislation, it is useful first to examine the development of case authority with particular reference to the facts of each case and to give most deference to those recent appellate decisions, particularly from the Queensland jurisdiction. This approach is preferable to relying upon decisions which interpreted 19th and 20th century English legislation when the accused person was not routinely able to avail of legal representation (and when convictions for some offences attracted harsh sentences of death or transportation).

The rule concerning the fitness of an accused to stand trial began to develop in the procedural formalities of the medieval courts of law. Without an opening plea and the accused's consent to trial by jury, a trial could not take place. Accordingly, it became the practice for the courts to determine whether a failure of an accused to enter a plea was due to 'malice', or whether the accused was mute 'by the visitation of God'. A critical distinction was drawn between these two categories of accused persons. Until 1772, an accused who stood mute of malice was subjected to peine forte et dure (by which the accused was slowly pressed to death under a weight unless he relented and made a plea). In the case of an accused who was mute by visitation of God, a plea of not guilty was entered and the trial was respited. Between 1772 (12 Geo III c 2) and 1827 (Criminal Law Act 1827 (UK)), a plea of guilty was recorded in relation to an accused found by jury to have stood mute of malice. After 1827, the Court was permitted to order the entry of a plea of not guilty in such a case.

Although a trial could take place where the accused was deaf, based upon the not guilty plea, there was concern that it may not be appropriate to carry on with the proceedings. Many deaf-mutes would not have been able to communicate effectively and may have appeared to the courts as if they were mentally impaired. The trial of the deaf-mute accused could take place only if the court exercised care to ensure that the accused was not mentally impaired. If the accused was found to be mentally impaired, then the accused could not be tried. Before a deaf-mute accused could be properly tried, the jury was required to consider whether the muteness was genuine, and to make a decision about the accused's mental ability. In the case of the accused who was insane, who was either mute in respect of his plea or could not plead sensibly, only the first of these steps had to be taken. The question was not one of mental ability, but whether or not the insanity was genuine. If the accused was found to be insane, the trial was postponed pending the accused's recovery.

As Grubin (1993) has pointed out previously, prior to the decisions in R v Dyson (1831) (4) and R v Pritchard (1836) (5) (considered below), a distinction had been made between persons who were intellectually disabled and those who were insane in respect of their fitness to plead. While neither could be tried fairly, the intellectually disabled accused did not have the cognitive ability to understand the process of trial, as opposed to the accused who was insane and could not reason or could not appreciate the evidence and law relevant to their situation and could not make proper decisions about their legal course of action.

R v Dyson

In R v Dyson (1831), the accused was a deaf mute indicted for the murder of her bastard child. After hearing evidence that she had always been deaf and mute, the jury found her mute 'by the visitation of God'. With an acquaintance acting as interpreter, the accused, by signing, dearly denied the charges. While a plea of not guilty was recorded, it was not possible for the accused to understand the more complex process of challenging jurors. A witness was permitted to give evidence that Dyson had been instructed in the dumb alphabet, but her training was not advanced enough for her to make words. The witness swore that although Dyson was incapable of understanding the nature of the proceedings, the witness testified that in time, Dyson might be taught the means to do so. In his directions, Parke J told the jury if they were satisfied that

... the prisoner had not then, from the defects of her faculties, intelligence enough to understand the nature of the proceedings against her, they ought to find her not sane. (6)

The jury was satisfied that Dyson could not understand the nature of the trial process and she was declared insane and detained under the Criminal Lunatics Act 1800 'at her Majesty's pleasure'.

It is submitted that Dyson's case was wrongly decided. The directions to the jury subsumed the intellectually disabled accused (described contemporaneously as 'idiots') under the category of the insane and condemned those found 'not fit to plead' as also 'not sane'. The need for a different test in relation to fitness for trial for a person (whose level of cognitive functioning was impaired), compared to those persons whose reasoning and decision-making ability were genuinely affected by mental illness also went unrecognised in the frequently cited case of R v Pritchard.

R v Pritchard

Pritchard, like Dyson, was deaf and dumb. Charged with the capital felony of bestiality, Pritchard did not plead to the indictment and a jury found him mute 'by the visitation of God'. However, Pritchard was able to read and write (having been taught at the Deaf and Dumb Asylum in London) and, on reading the indictment, indicated by a sign that he was not guilty. While a jury found that he was able to plead, the relevant question ought to have been: was Pritchard 'fit to plead?'.

In asking the jury to decide whether the accused was sane, Baron Alderson referred to the decision in Dyson and gave the often quoted direction:

There are three points to be inquired into: First whether the prisoner is mute of malice or not; secondly whether he can plead to the indictment or not; thirdly, whether he is of sufficient intellect to comprehend the course of proceedings on the trial so as to make a proper defence--to know that he might challenge any of you to whom he may object--and to comprehend the details of the evidence which in a case of this nature must constitute a minute investigation. Upon this issue, therefore, if you think that there is no certain mode of communicating the details of the trial to the prisoner, so that he can clearly understand them, and be able properly to make his defence to the charge, you ought to find that he is not of sane mind. It is not enough that he may have a general capacity of communicating on ordinary matters. (7)

The jury found that Pritchard was not of sane mind by reason of mental deficiency and hence 'not capable of taking his trial'. Like Dyson, Pritchard was detained under Criminal Lunatics Act 1800 (UK) even though he could read and write and it was very likely that he was not insane and indeed may not have been even intellectually impaired.

The better view is that respect for the formulation in Pritchard ought be qualified by the recognition that Baron Alderson's instructions to the jury as to the accused's fitness were directed solely at making a determination of whether the accused had sufficient cognitive ability to follow and understand the trial process and communicate with the court and not whether the accused had the requisite reasoning and decision-making capacity.

Dyson and Pritchard were decided early in the 19th century when the accused were frequently not represented by counsel and it is not surprising that there are no references in those reported decisions to the role of legal representatives or the ability of the accused to instruct counsel.

R v Davies

A line of authority has evolved on the issue of separating (a) a discrete loss of memory (amnesia) of a period of time relevant to the offence from (b) memory impairment found in association with other cognitive impairment (attention, concentration, recall and short term memory impairment) that might occur in head injury or dementia.

In R v Davies, (8) the accused was an elderly man charged with murder. When asked to plead, his confused answer led to the empanelling of a jury to determine whether he was genuinely insane. Williams J instructed the jury to consider the accused's appearance and behaviour but no reference was made to whether he could cognitively 'understand'. The trial judge's instructions to the jury included one of the first recorded references to whether the accused, because of his 'madness', was incapable of properly instructing counsel'. It is not clear from the reported decision whether Davies had only an acquired cognitive impairment (from dementia, for example) or whether he also suffered from a disorder of thought content or perception (for example delusions or hallucinations). In the event, the jury found his 'madness' to be genuine and he was found unfit to plead.

R v Podola

The issue of amnesia as well as the importance of the assistance of the accused's counsel at trial was emphasised in the decision at first instance in R v Podola. (9) The accused, an immigrant to England, was charged with the murder of a policeman. During his apprehension, he sustained a head injury. At trial, he relied solely on an amnesia covering at least all events for the 15 days between the day before the murder...

NOTE: All illustrations and photos have been removed from this article.



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