Page 218 - Week 01 - Thursday, 9 December 2004
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Mr Speaker, for any community, cases involving the criminal law and mental impairment pose considerable challenges for justice. There are two facets of criminal law where the distinction between someone being mentally well and being mentally unwell is crucial: firstly, culpability and, secondly, the procedural issue of fitness to plead. The bill I have presented today addresses one of these challenges, namely, the procedural issue of the mental fitness of an accused person to plead in a criminal trial.
In our system, it is crucial that justice should be done and be seen to be done by proving or disproving criminal responsibility of an accused person. Every person has the right to be recognised as a person before the law. Conversely, the law has an obligation to treat everyone equally and impartially. Our system of government designates the judiciary as the institution that applies the law equally, impartially and openly. Australian criminal law requires that the test of criminal responsibility must involve an element of fault based upon a sane mind. Likewise, our law presumes that an accused person is mentally fit to plead to a charge.
If a person’s mental health is impaired to the extent that they cannot understand the nature of the charge, enter a plea, instruct their lawyer or engage in a number of other important procedural decisions, then they are not fit to plead. There are two fundamental elements to proving a criminal offence: the physical element of the offence, namely, the result, conduct or circumstances caused by the act; and the fault element of the offence, namely, the intention, knowledge, recklessness or other attribute of the mind.
In a criminal trial the fault element of an offence—whether a person is guilty or not—cannot be thoroughly tested if the accused person is mentally unwell. 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 an accused’s mental fitness is raised in a criminal trial, then that issue needs to be resolved before the substance of the offence itself and the culpability of the person can be tried.
Mr Speaker, this bill improves the quality of the process to test a person’s fitness to plead by designating the judiciary as the institution that determines an accused person’s mental fitness to plead. At present, our process of testing mental fitness does not occur in open court, and the evidence is not tested according to the standards of the criminal trial.
In the early 1990s most Australian jurisdictions modernised mental health law. These major national reforms created a legal framework for the involuntary treatment of people who are so unwell they lack the capacity to accept or decline medical care. The ACT adopted its own Mental Health (Treatment and Care) Act in 1994. The mental health act established a tribunal to impartially assess people for mental impairment and, if necessary, make orders for their treatment. The tribunal also assesses the mental fitness of people in criminal trials and advises the court of the person’s condition.
On the face of it, it may seem that assessing fitness to plead should be a task of the Mental Health Tribunal. However, looking behind the apparent harmony of the two tasks, there is an elemental clash between the therapeutic responsibilities of the tribunal and the criminal justice responsibilities. The Mental Health Tribunal was established for
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