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Legislative Assembly for the ACT: 2004 Week 09 Hansard (Thursday, 19 August 2004) . . Page.. 3898 ..

the act; and the fault element of the offence, namely, the intention, knowledge, recklessness or other attribute of the mind.

If a person is not mentally fit at the time of the hearing, a court cannot thoroughly test the fault element of the offence. It is possible that the accused person was mentally fit at the time of the offence and that they subsequently became unfit during the trial. Testing an accused person’s fitness to plead is not a test of their mental capacity at the time of the offence; it deals with the person’s capacity at the time of the hearing.

If the issue of mental unfitness is raised in a criminal trial, then it needs to be tested before the substance of the offence itself and the culpability of the accused person are tested. Presently in the ACT, this process of testing mental fitness is usually not open in the Mental Health Tribunal, although there are mechanisms to enable open hearings, and the evidence is not tested according to the standards of a criminal trial.

In the early 1990s, states and territories round Australia modernised mental health law. These reforms addressed the need to respect the rights of people who receive medical treatment for their condition. In the main, these major national reforms were about involuntary medical treatment and assessment of mental health.

The ACT adopted its own Mental Health (Treatment and Care) Act in 1994. The Mental Health (Treatment and Care) Act 1994 established a tribunal to impartially assess people for mental impairment and, if necessary, make orders for their treatment. The Mental Health Tribunal was also allocated the task of assessing the mental fitness of people accused of crimes if the issue of mental fitness was raised during a trial. The purpose of the assessment was to ascertain if the accused person was mentally capable of pleading in the prosecution of the allegation against them.

On the face of it, the decision to include fitness to plead in the tribunal’s workload made sense. Yet there is a contradiction that must be resolved. The Mental Health Tribunal was established for therapeutic reasons, that is, to assist and treat people in need when they could not make reasoned decisions for themselves. The text and form of the Mental Health Act is clearly about the treatment of mentally impaired people and the protection of their rights.

The methods used by the Mental Health Tribunal to hear cases are consistent with therapeutic care, yet inconsistent with a criminal trial. The Mental Health Act does not require the prosecution or defence to make representations to the tribunal when an accused person’s mental fitness is tested. Expert witnesses before the tribunal are not subject to the test of cross-examination; nor can the prosecution or defence call witnesses to testify on the issue of an accused person’s fitness to plead.

The tribunal’s hearings and deliberations are to be in private except in certain circumstances. The outcome of the hearing is transmitted to the court hearing the criminal trial, but the proceedings are not transparent. The fact that proceedings are closed is the right process for people in need of treatment. It is the wrong process to determine mental fitness to plead in a criminal trial.

Whatever anyone in our community might say about the merits of particular judicial decisions, I believe that nearly everyone in our community has confidence in the

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