Page 619 - Week 02 - Thursday, 17 February 2005
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I am aware that there has been consultation since then. I do not think everyone is happy—for example, one of the consumer groups contacted me and said they certainly would have appreciated some further education and some further consultation—but groups have been contacted in the six months from August to now. I would certainly expect that to have happened. It would have been a lot handier, however, if all that had been done beforehand. I commend to the government and impress upon them, even though they are now a majority government, that there is still that need for proper community consultation and thorough community consultation on such important issues.
That being said, what will this bill actually do? Until now, fitness to plead has been determined by advice to the court from the Mental Health Tribunal. The attorney has said that, just as culpability is tested by a court, he believes that fitness to plead also should be tested by a court. I agree. He went on to say that the evidence presented before the tribunal was not subject to cross-examination by the prosecution and the tribunal was not bound by the laws of evidence, as a court is bound.
The Mental Health Act did not require the prosecution or the defence to make representations to the tribunal when an accused person’s mental fitness was tested, and expert witnesses before a tribunal were not subject to cross-examination, nor could the prosecution or defence call witnesses to testify on the issue of an accused person’s fitness to plead.
I think it is absolutely essential that those persons should be able to give evidence, should be cross-examined; that the defence and prosecution should be able to call witnesses to testify on the issue of a person’s fitness to plead; that they should be subject to rigorous cross-examination so that a competent tribunal, which will now be the court, will be able to assess whether they are fit to plead. Accordingly, I think this is very much a step forward there.
I think it is ludicrous that the prosecution really did not have a say and that the defence had its hands tied as well. Now all the relevant parties will be able to give evidence in court before a judge or a magistrate. They will be subject to rigorous cross-examination and the court will then decide at the appropriate level of proof. In this case it is not beyond reasonable doubt; it is on the balance of probabilities—it is a sensible standard of proof and I think the normal one applied everywhere else in Australia, which it has been for decades—whether a person is actually fit to plead. Obviously, if a person is not, the rules will apply from there. But if a person is, then the matter will proceed as a normal criminal matter. It has the necessary rigour; it has the necessary fairness; it has the necessary openness, too.
Regardless of the excellent job the Mental Health Tribunal did, the Mental Health Tribunal probably was not the appropriate body for these legal and criminal law essential issues—the essential issue of not only whether the offence was committed but also whether the person had the mental intention, including recklessness, to be held criminally liable for that offence.
Those things, for probably 150 years, have been decided by courts. The experiment, I suppose, over the last 10 years has indicated it is far more preferable if that still occurs because I think the community are very concerned about persons who use the excuse of
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