Special considerations to the assessment of fitness to stand trial in Australia

Abstract

Australian criminal law presumes that defendants are fit to stand trial until proven otherwise on the balance of probabilities. Forensic mental health experts often provide opinions to the court about defendants’ fitness, which requires them to understand the legal context within which the court decides the defendant’s fitness status. This article outlines important case law considerations to the assessment of fitness in Australia, including the notions that fitness must be evaluated when there is a ‘real and substantial question’,¹ assessments should be ‘reasonable and common sense’ and accommodations should be considered when impairments in capacity are evident. The essentially negligible impact of delusions, an unhelpful defence, unmanageable behaviour and poor defendant-lawyer relationship are also considered. Finally, precedent is reviewed for the use of the Presser standards in New Zealand and other pacific jurisdictions.

There is a presumption in Australian criminal law that defendants are fit to stand trial until proven otherwise on the balance of probabilities. The test for fitness differs between each state and territory but all legislation, in this regard, originates from the Victorian decision of R v Presser,² which in turn is based on principles articulated in the decision of R v Pritchard. Presser articulated fitness standards, which the Australian Law Reform Commission summarised as meaning that all defendants must be able to:

1. Understand the nature of the charge/s;

2. Plead to the charge/s;

3. Challenge a juror or the jury pool;

4. Understand the nature of proceedings;

5. Follow the course of the proceedings;

6. Understand the substantial effect of evidence; and,

7. Instruct counsel.³

The criteria for the fitness to stand trial test have long been criticised.⁴ Gooding et al. (2017), for example, identify three significant issues of concern.⁵ First, that the unfitness to plead test contains criteria that are too broad and do not include ‘a requirement to consider whether support and assistance could help the accused to optimise fitness to stand trial’.⁶ Secondly, the threshold for the criteria is too high, as persons may be considered to be fit to plead but nonetheless may be unable to effectively participate.⁷ Finally, the criteria have been described as ‘inherently discriminatory’.⁸ In this context, it has been suggested that persons with cognitive disabilities who are unfit to plead may lose procedural safeguards that are otherwise provided by the criminal justice system to an accused.⁹ Persons who are found unfit to plead may also be subjected to long periods of detention, in some cases indefinite.¹⁰ These issues raise concerns about Australia violating human rights, most notably the United Nations Convention of the Rights of Persons with Disabilities.¹¹

Notwithstanding, psychologists and psychiatrists are typically called upon to evaluate a defendant’s fitness for trial in accordance with the criteria above, with the ultimate decision resting with the court. Expert witness opinions may then be scrutinised by lawyers considering legal precedent and procedure. Mental health professionals working in forensic contexts are therefore required to understand the laws within which they are working.¹² Possessing competency to evaluate fitness to stand trial requires numerous skills, such as skills in clinical and forensic assessment, jurisdiction-specific knowledge of fitness to plead law and procedures, an understanding of fitness case law and, sometimes, psychometric skills including the administration, scoring and interpretation of standardised tests.¹³

Mental health professionals generally do not receive formal training about fitness laws and precedent.¹⁴ Further, there is a dearth of fitness to stand trial learning opportunities for mental health professionals concerning the assessment process, which may result in misunderstanding the context of fitness to stand trial assessments. We therefore provide an overview of fitness laws and procedures for each Australian state and territory including a summary of the courts’ dispositions once a defendant is found unfit,¹⁵ and we summarise court cases that have interpreted the Presser criteria to outline the thresholds of impairment to be found unfit.¹⁶ However, there are additional legal considerations to the assessment of fitness in Australia that require exploration to ensure an adequate understanding of the construct itself. The purpose of this paper, like the other papers prepared by the authors, is to act as a ‘Dummies Guide’ for mental health clinicians evaluating fitness in Australia and may act as a reference point for legal practitioners. It is emphasised, however, that this is not intended to replace the advice of legal scholars or practitioners.

Special considerations to the assessment of fitness

There are several themes in case law that guide the application of fitness to stand trial in Australia. These are that fitness to stand trial must be considered whenever there is a (1) real and substantial question of the defendant’s capacity, (2) that the criteria should be applied in a reasonable and common-sense fashion and that (3) the effect of accommodations should be considered before recommending a defendant is unfit for trial.

An additional four principles were established by the High Court of Australia in Eastman v The Queen¹⁷ as inherent to any fitness evaluation. These originate from the Ontario Court of Appeal decision of R v Taylor:

1. The fact that an accused person suffers from a delusion does not, of itself, render him or her unfit to stand trial, even if that delusion relates to the subject matter of the trial.

2. The fact that a person suffers from a mental disorder which may cause him or her to conduct a defence in a manner which the court considers to be contrary to his or her best interests does not, of itself, lead to the conclusion that the person is unfit to stand trial.

3. The fact that an accused person’s mental disorder may produce behaviour which will disrupt the orderly flow of a trial does not render that person unfit to stand trial.

4. The fact that a person’s mental disorder prevents him or her from having an amicable, trusting relationship with counsel does not mean that the person is unfit to stand trial.¹⁸

The mere presence of a mental illness, cognitive impairment or reduced capacity is insufficient to warrant a finding of unfitness. This is consistent with numerous Australian cases, such as R v Rivkin¹⁹ where the defendant had reduced cognitive capacity due to an undiagnosed brain tumour but was found fit to stand trial and R v Cain,²⁰ where the defendant suffered grandiose and paranoid delusions yet was fit to stand trial. Defendants are not required to act in their best interests or to present a good defence, such as in Heffernan v The Queen,²¹ where the defendant refused to raise a mental illness defence because his delusions prevented him from knowing he was mentally ill. Defendants are not required to possess an amicable, trusting relationship with their counsel. This was evident in R v T,²² where the defendant could not share a balanced version of events because he believed his lawyer was working for Satan. Unmanageable behaviour that interrupts the trial process, such as shouting and refusing to follow directions, is similarly not a valid cause of unfitness to stand trial, irrespective of whether it is caused by a mental illness or cognitive impairment. This was evident in Ogawa v The Queen,²³ who was found fit to stand trial despite being removed from court for unmanageable behaviour associated with a personality disorder, being charged then convicted for contempt of court in her absence and presenting no further defence because she refused representation by counsel.

These contextual considerations reinforce that fitness is a test of minimum standards. If the minimum standards are met, perhaps even poorly met, the defendant is likely to be found fit to stand trial because only basic abilities are required.

Special consideration 1: a real and substantial question

Fitness to stand trial must be investigated when there is a ‘real and substantial’ question about the defendant’s capacity, and the investigation should be conducted any number of times at any stage of the adjudication. These are legislated requirements in most Australian states and territories. A real and substantial question exists when a properly instructed jury might find the defendant unfit to stand trial.²⁴ There are two High Court of Australia decisions and several compelling state supreme court decisions to consider in this context. The first High Court decision to consider is Kesavarajah v The Queen.²⁵

Kesavarajah was charged with numerous drug-related offences in the County Court of Victoria. Kesavarajah’s fitness was questioned prior to the commencement of the trial. Evidence was submitted that he suffered from a psychotic illness and was probably unfit. His symptoms included delusions of grandeur, elevated mood, disorientation and impaired concentration. A second expert witness gave evidence several days later and explained that Kesavarajah had untreated psychosis and that his condition was unstable and fluctuating. The second expert witness explained that, although he believed Kesavarajah met the Presser standards that day, there was an ongoing risk of Mr Kesavarajah becoming unfit during the trial. The judge decided to proceed with the trial and did not order a fitness enquiry. The judge explained to Kesavarajah, ‘I think the future has to take care of itself, but the present, today seems to be that you are as fit to be tried as you need be and I think it would be a waste of time in effect, and improper to express any different view and to empanel a jury’.²⁶

Evidence was subsequently submitted that Mr Kesavarajah had become severely unwell during the trial. He reportedly believed that he was Vishnu, had just returned to earth and was receiving messages from aliens. This information, along with other information, was conveyed to the trial judge who decided to continue with the adjudication on each occasion. An appeal was made to the Supreme Court of Victoria but failed on the basis that the trial judge considered the defendant’s fitness to stand trial in each instance. Mr Kesavarajah then appealed to the High Court of Australia. The appeal was successful. Majority opinion articulated by Chief Justice Mason stated:

It makes no sense to determine the question of fitness to be tried by reference to the accused’s condition immediately prior to the commencement of the trial without having regard to what the accused’s condition will or is likely to be during the course of the trial. There is simply no point in embarking on a lengthy trial with all the expense and inconvenience to jurors that it may entail if it is to be interrupted by reason of some manifestation or exacerbation of a debilitating condition which can affect the accused’s fitness to be tried.²⁷

Thus, the trial judge erred by not ordering an investigation into the defendant’s fitness. The court knew that Mr Kesavarajah might become unfit on account of his fluctuating psychosis, so an investigation was required at the outset. The High Court of Australia also addressed the subsequent fitness decisions made by the trial judge. This included the decision to not conduct a fitness enquiry when Mr Kesavarajah became severely unwell after the trial evidence was heard and the verdict was not yet returned. Chief Justice Mason stated:

Certainly, some of the minimum standards stated by Smith J. in Presser were no longer relevant to the stage which the trial had reached. But it was still necessary that the appellant should understand the nature of the charges and the proceedings, understand the substantial effect of the evidence and follow the course of the rest of the proceedings. For example, it could not be said that the appellant was fit to be tried if he were unable to understand the nature of the jury’s finding and the effect of a conviction … Notwithstanding that the trial was drawing to its close, the possibility remained that the appellant might be called upon to participate in the proceedings to protect his own interests. There was the taking of exceptions to the charge, the possibility that the jury might ask questions or make requests, e.g. for transcripts of tape-recordings, and the further possibility that the jury might not be able to reach a verdict with the consequence that the judge might be required to take some action after giving consideration to submissions from the parties.²⁸

This case highlights that a prognosis must be offered about the defendant’s fitness for trial and that re-assessments of the defendant’s fitness may be necessary. Additionally, it highlights that clinicians may need to consider what elements of Presser remain relevant to the trial if evaluating the defendant at a later stage of proceedings.

Another relevant High Court of Australia decision is Ogawa v The Queen.²⁹ This case discusses what constitutes a real and substantial question. Ogawa was charged with various offences after sending threatening text messages to staff of the Federal Court. Ogawa had a PhD in law and was diagnosed with borderline personality disorder. She withdrew her instructions from seven legal representatives appointed to her by Legal Aid and therefore represented herself at the trial. Ogawa was found guilty of the charges and began screaming to the extent that she was removed from the court in a physical struggle with correctional officers. She was then charged with contempt of the court. The contempt trial proceeded in Ogawa’s absence and without legal representation (ie, for sentencing and conviction for contempt).

Ogawa appealed the conviction in the Supreme Court of Queensland. The appeal was dismissed because the trial judge ‘had come to the firm view that the appellant was a humbug feigning an incapacity to represent herself’.³⁰ It was noted that Dr Ogawa had ‘conducted lengthy cross-examinations of medical witnesses with competence and energy inconsistent with a debilitating mental illness’.³¹ She had demonstrated Presser capacity in doing so. In dismissing the appeal, their Honours cited R v Tier,³² which they summarised in the following way:

[A]n inquiry into fitness (involving a separate jury) is disruptive. It will often lead to the discharge of the jury hearing the trial. A mechanism is therefore needed … for the trial judge to prevent attempts by the accused, or his representatives, to disrupt or abort the trial. No inquiry need be held where it appears to the court that the question has not been raised in good faith …. It will not be raised in good faith where there is no real and substantial question of unfitness, and where the motivation in raising the question (which is either transparent or to be imputed) is to disrupt the trial process …. Conversely, where there is a real and substantial question, good faith will be presumed.³³

Ogawa then appealed to the High Court of Australia and the application was eventually dismissed. Ultimately, it was stated that the ‘considerable forensic difficulties attending the conduct of this trial were the product of the applicant’s deliberate disruption of the proceedings, which necessitated her removal from the courtroom. She persisted in this behaviour in circumstances in which she was representing herself having refused repeated offers of legal representation’.³⁴ Taken together, these cases seem to suggest that Ogawa’s borderline personality disorder was not a valid mental condition that would warrant a fitness investigation, and that even if a fitness investigation was ordered, she would be fit to stand trial because the court had already observed her to demonstrate Presser capacity. She was feigning unfitness to stand trial, so a real and substantial question had not been raised in good faith. On this basis, the court was not required to order an investigation into Ogawa’s fitness to stand trial.

The threshold for a real and substantial question, when raised in good faith, appears to be low. This was evident in the Australian Capital Territory (‘ACT’) Supreme Court decision of R v Al-Harazi.³⁵ Mr Al-Harazi, who was from Yemen and spoke little English, was charged with murdering his wife. The first expert assessment raised ‘suspicion’ about Mr Al-Harazi’s fitness to stand trial, specifically on the ability to enter a plea. The expert was unsure if the defendant’s beliefs and behaviour were culturally normal or reflected psychosis. The defendant’s counsel also had difficulty taking instructions from Mr Al-Harazi. In deciding whether there was a real and substantial question about the defendant’s fitness, Justice Refshauge considered the adverse consequences of delaying matters because numerous witnesses were due to return home overseas. It was ultimately decided that a real and substantial question existed because defence counsel had difficulty taking instructions from Mr Al-Harazi, and the expert witness had unconfirmed doubts about Mr Al-Harazi’s mental state.

In reaching this decision, Justice Refshauge considered S M v The Queen.³⁶ In this case, the trial judge was found to be in error for not obtaining further information about the defendant’s mental state. The evidence before the trial judge was said to be ‘extremely vague, and had no evidentiary foundation and was more in the manner of an application to adjourn to explore matters that could and should have been explored well before the matter came before [him]’.³⁷ However, the defendant’s lawyer was ‘highly experienced [and] … expressing serious concerns regarding the appellant’s general ability to give instructions’.³⁸ Precedent establishes that the ‘existence of the possibility of unfitness to plead [does not need] … to be founded on admissible evidence’.³⁹ Thus, it does not matter where the information about possible unfitness may come from. Any suggestion of unfitness requires the court to consider whether a real and substantial question has been raised.

Similarly, a successful appeal to the Supreme Court of Victoria revealed that counsel’s expressed concern about the defendant is sufficient to establish a real and substantial question. Majority opinion stated:

[Defence counsel] took the unusual course of addressing the judge in the applicant’s absence, suggesting that the judge should consider having the applicant’s mental state assessed. Counsel in essence conveyed to the judge that he considered the applicant to be obsessed, unstable, unable to focus his attention on relevant matters and incapable of giving proper instructions. In counsel’s view, the applicant was not feigning his apparently unstable demeanour and attitude.⁴⁰

No expert witness evidence was entered about the defendant’s alleged incapacity in this matter – just the defence counsel’s statements to the judge. This was sufficient grounds to order a re-trial. The importance of counsel expressing concern about their perception of the defendant’s fitness was also discussed in Madafferi v The Queen.⁴¹ In this case, an appeal was launched on the basis that the defendant was unfit at the trial. The appeal failed because there was a lack of evidence that the defendant lacked any of the fitness abilities. Majority opinion stated:

The most striking deficiency in the applicant’s evidence in support of the present application is, however, the complete absence of any material from the solicitors or junior counsel who represented the applicant throughout the trial, or from senior counsel who appeared with junior counsel at trial (and also appeared for the applicant in the committal proceedings) … Based on experience, it certainly might be thought that senior and junior counsel and their instructing solicitor would be best placed to provide evidence of anything that might have raised a question in their minds as to the applicant’s fitness to be tried. And based on experience, it might be expected that senior and junior counsel and their instructing solicitor would have been astute to act on and investigate any hint or suspicion that the applicant might have been [unable to exercise any of the fitness abilities].⁴²

One of the most often-cited fitness cases after Presser is Eastman v The Queen. This High Court decision evaluated whether Eastman was unfit to stand trial after the trial had concluded. Eastman appealed against his conviction of murder to the High Court of Australia. It was revealed that a psychiatric report that described Eastman as ‘insane’ and ‘psychotic’ was not entered into proceedings. There was no suggestion from the report author that Eastman was unfit to stand trial, although a defence of diminished responsibility was recommended. The Court ruled that:

Ordinarily it would be expected that material suggesting doubts about the accused’s fitness to plead or to stand trial would be drawn to the court’s attention by counsel for the prosecution (if aware of it) or by counsel apparently retained for the accused (if counsel had doubts about the matter). In particular, if counsel for the prosecution or counsel for the accused had expert medical opinion that raised a question about the accused’s fitness, it would be expected that the existence of this material would be drawn to the attention of the trial judge.⁴³

Ultimately, it was the opinion of the High Court that any evidence that the defendant may be unfit to stand trial must be submitted, even if it was against the defendant’s wishes. The same was articulated by Chief Justice Spigelman in the New South Wales decision of R v Mailes:⁴⁴ ‘Where, as sometimes occurs, apparent unfitness is accompanied by an insistence on the part of the accused that he or she is fit, legal representatives may reveal their doubts and the basis for those doubts to the trial judge’. The relevant principles to emerge from Eastman v The Queen include:

1. Failure to order an investigation into a defendant’s fitness to stand trial, where a real and substantial question exists, renders the trial a nullity.

2. Uncooperative and bizarre behaviour does not render a defendant unfit to stand trial.

3. The defendant is not required to present an able defence nor act in their best interests.

In sum, fitness to stand trial must be investigated if there is a real and substantial question about the defendant’s legal capacity. It must be raised by any party to proceedings if there is any evidence that the defendant lacks one of the fitness abilities, including when the defendant does not want the issue raised. If the question is not raised in good faith, such as when unfitness might be feigned or the question is raised to disrupt the trial, there is no obligation to order a fitness enquiry. The evidentiary threshold for a real and substantial question is low, such as ‘suspicion’ of impairment with a corroborating opinion from counsel. It may include personal submissions from counsel and their colleagues, and confirmation of a mental disorder is not required, as this is evaluated in the fitness enquiry. The trial is a nullity if a real and substantial question existed about the defendant’s fitness but an investigation was not ordered.

Special consideration 2: reasonable and common sense

Precedent repeatedly emphasises that evaluations should be ‘common sense’.⁴⁵ In the recent case of R v Dellamarta for example, Justice Taylor noted that the test for unfitness expressed both in common law and in the Victorian statute should be applied in ‘a reasonable and common sense fashion’.⁴⁶ In her judgment, her Honour quoted Justice Hayne in Eastman, who wrote that ‘[p]roperly understood, these tests may not be very difficult to meet’.⁴⁷ In law, common sense is defined as ‘sound practical judgment; that degree of intelligence and reason, as exercised upon the relations of persons and things and the ordinary affairs of life, which is possessed by the generality of mankind, and which would suffice to direct the conduct and actions of the individual in a manner to agree with the behaviour of ordinary persons’.⁴⁸ Thus, a common-sense evaluation requires evaluators to consider what is likely to be known, and able to be done, by the average Australian.

Fitness must also be applied in a reasonable manner.⁴⁹ Reasonable is defined in law as ‘just; proper. Ordinary or usual’.⁵⁰ ‘Reasonable’ encompasses trial-specific factors, such as the length of the trial, the complexity of the evidence, the number and seriousness of the charges and the relevant elements of the trial.⁵¹ For example, a defendant would not be unfit if they could not understand the jury in a judge alone trial. That would be an unreasonable conclusion.

The purpose of a reasonable and common-sense application is to ensure that the test for fitness is not applied too literally, which would set too high a threshold for fitness.⁵² This approach was affirmed in Ngatayi v The Queen,⁵³ where it was stated:

The test looks to the capacity of the accused to understand the proceedings, but complete understanding may require intelligence of quite a high order, particularly in cases where intricate legal questions arise. It is notorious that many crimes are committed by persons of low intelligence, but it has never been thought that a person can escape trial simply by showing that he is of low intelligence. We respectfully agree with the view expressed by Justice Smith in R v Presser … that the test needs to be applied ‘in a reasonable and commonsense fashion’. Justice Smith went on to say that there are certain minimum standards which the accused needs to equal before he can be tried without unfairness or injustice, but added that the accused ‘need not have the mental capacity to make an able defence’.⁵⁴

Numerous decisions reference Ngatayi v The Queen⁵⁵ when outlining reasonable and common-sense considerations. For example, Justice Boddice expressed that a reasonable and common-sense evaluation considers accommodations and trial-specific factors:

Whether a person is fit for trial is to be assessed in a reasonable and commonsense fashion, with due recognition that the person will be represented by counsel, and that Court proceedings may be structured to accommodate the person’s disability. In this respect, it is relevant to consider the nature of the proceedings.⁵⁶

The notion of applying the test in a reasonable and common-sense fashion might also extend to the assessment procedures used by clinicians. In Robinson v R,⁵⁷ Justice Hulme commented upon the importance of considering the relevance of a cognitive tests to the courtroom and Presser:

[The neuropsychologist] concluded in paragraph (iii) that the Appellant displayed difficulty with his visuospatial working memory, attention span and attention to detail, the doctor’s assessment in paragraph (v) of the Appellant’s auditory aspect of these matters was that it was within normal limits. Court proceedings obviously require far more of the latter abilities than those needed to press squares of a screen.⁵⁸

It is not my intention to cast doubt on the general applicability of tests of the nature administered by Dr Rowe although I confess to wondering at whether some allowance should have been made for what I would infer to be the fact, viz. that the Appellant, given his deficits, may well have had no experience, even as a child playing games, with reacting to coloured lights, mazes etc. Be that as it may however, the extent of the inconsistency between matters objectively established and Dr Rowe’s deductions from the sort of tests he administered leads me to the view that, acting reasonably, no court could accept Dr Rowe’s conclusions as to the Appellant’s fitness for trial.⁵⁹

Justice Hulme considered the defendant’s fitness predominantly using observational data, such as from a recorded telephone call, his high school grades, behaviour in the police interview and appearance of listening in court. Observational data and real-world behavioural data also appear to have been favoured in R v Dellamarta,⁶⁰ although Justice Taylor repeatedly emphasised that it was not her objective to decide whether neuropsychological or clinical psychological evidence was preferred.⁶¹ In R v Dellamarta,⁶² a clinical and forensic psychologist considered the defendant’s ‘real-world’ abilities, such as her ability to engage in back-and-forth conversation and ability to follow current affairs (eg, sport).⁶³ However, a neuropsychologist also considered the defendant’s intelligence test scores, executive functioning test scores and language test scores, among other ancillary data. The clinical and forensic psychologist recommended that the defendant was fit to stand trial on all criteria, whereas the neuropsychologist recommended that the defendant was unfit to stand trial on four of the criteria. In her analysis of the evidence, Justice Taylor focussed on the minimum standards outlined in Presser and whether the defendant had demonstrated those abilities. Justice Taylor also considered the complexity of the trial, which she decided was simple and straightforward and therefore lowered the threshold for fitness. The defendant was eventually found fit to stand trial on all criteria despite her very low intelligence, language problems and poor executive functioning. A similar pattern of cognitive test results being found to underestimate a defendant’s fitness abilities is evident in other fitness matters.⁶⁴

In sum, fitness assessments must be reasonable and common sense. This means that evaluators should consider what is normally understood and can be done by the average offender at court.⁶⁵ The nature and complexity of the defendant’s specific trial should be considered, as should whether the defendant is represented by counsel. Real-world data, such as observation of the police interview, school grades, the defendant’s activities of daily living and general communication skills may be salient data points when formulating a defendant’s fitness because cognitive test results, whilst useful, are ultimately tests of cognition and may not represent common sense or reasonable tests of the minimum standards for fitness. Indeed, the presence of a mental illness or impairment is a necessary but not sufficient criterion for unfitness.

Special consideration 3: accommodations

Being fit to stand trial is in the defendant’s best interests; they can either plead guilty or go to trial to have their guilt determined, they can instruct counsel and answer the evidence brought against them. There is therefore a preference for mental health evaluators to consider how a defendant’s fitness to stand trial might be facilitated. Various terms are used in the literature in this regard.⁶⁶ ‘Restoration’ of fitness is most often used. Restoration typically involves treatment of mental health symptoms that are causing a temporary impairment in the defendant’s psycho-legal abilities. Administration of psychotropic medication is the most common restoration treatment.⁶⁷ Conversely, the terms ‘attainment’ or ‘remediation’ are used for defendants with cognitive disorders and developmental disabilities.⁶⁸ These terms are preferable when it cannot be assumed that the defendant ever possessed fitness to stand trial. Remediations are strategies that enable fitness in the courtroom, whereas attainment are strategies used to overcome the effects of disability on psycho-legal impairment. ‘Accommodations’ and ‘modifications’ are synonymous with remediations and are the terms most often used in case law.⁶⁹

However, there is no legislation that requires expert witnesses to consider accommodations. This was raised in R v Dellamarta.⁷⁰ In this case, the expert witness for the prosecution considered accommodations to overcome the defendant’s fitness deficits and recommended the defendant as fit to stand trial. The expert witness for the defence did not consider accommodations and recommended the defendant as unfit to stand trial. The defence argued that considering accommodations is not part of the legislated test in Victoria and the prosecution offered no rebuttal. The defendant was found fit to stand trial by the judge based on the minimum standards outlined in Presser. The relevance of accommodations was not considered further other than statements that the defendant’s counsel was expected to manage the defendant’s weaknesses:

I do not accept the general submission of the accused that the absence of Victorian authority establishing the assistance of counsel to an accused to be a relevant consideration in determining the content of the statutory fitness criteria to be sufficient reason to disregard it. Notwithstanding differences between the statutory tests of fitness of the Australian jurisdictions and the earlier consideration of the relevant issues of the common law test, for the reasons identified in the authority summarised above, the representation by counsel is logically relevant to the ability of an accused to meet any of the fitness criteria.⁷¹

Conversely, it has been expressed that it ‘is correct that the court in determining fitness to plead must consider the assistance that can be provided to the defendant, unless, of course, that assistance is unavailable, such as for an unrepresented defendant’.⁷² Another judge decided a defendant was unfit to stand trial after concluding that no remediations would overcome the defendant’s fitness deficits:

Even in a trial conducted before a judge alone, with frequent breaks and regular assistance provided to the accused to help him to understand the proceedings, I cannot conclude that the accused would be able to follow the course of the proceedings; understand the general effect of the evidence, no matter how confined; or make a defence in an informed way.⁷³

The benefit of adjourning proceedings to enable fitness was discussed in Kesavarajah v The Queen,⁷⁴ and an even greater range of accommodations was recommended by the ACT Supreme Court in the R v Fisher:⁷⁵

Where steps can reasonably be taken to accommodate the difficulties of the accused, including adjournments, ‘one-on-one’ assistance to follow the proceedings, insistence on brief, clear questions to the accused if he or she is examined on oath, an opportunity for the accused to narrate his or her version of events without interruption and the like the implementation of these will mean the accused is not unfit to plead.⁷⁶

Another decision found that accommodations remediated the defendant’s unfitness to stand trial, so the defendant was found to be fit.⁷⁷ Sutherland was charged with various violent and property offences in the ACT. Two psychiatrists agreed that Sutherland was fit to stand trial on all criteria except the ability to follow the course of the trial. Their opinions were divided on the latter. Sutherland was diagnosed with neurofibromatosis resulting in intellectual disability and learning problems. One psychiatrist asserted that Sutherland had impaired short-term memory and was therefore unable to understand information as it was presented to him. The other psychiatrist put forth that accommodations could be enacted to assist Sutherland’s ability to follow the course of the trial, such as sitting close to counsel and having a support person explain what was happening. Sutherland was subsequently found fit to stand trial.

Similarly, accommodations were recommended in a case where the defendant had poor focus that was especially bad of an afternoon. The defendant was considered to have severe impairments in the ability to make a defence or answer the charge. The judge expressed:

I consider the accused to be very much at the cusp of fitness or unfitness but, having regard to the trial arrangements that can be put in place, he has failed to demonstrate that he is unfit. I propose to sit only in the morning of each day, starting at 10.00 a.m. with a break at 11.00 a.m. for 20–30 minutes and then through to about 12.30–1.00 p.m. depending on the accused’s situation. Particularly, he has the ability to give evidence even though that process may be slow and tiring. Any questioning would have to be undertaken with due sensitivity to his conditions.⁷⁸

In this decision, it was also recommended that the defendant’s medication should be reduced to improve his alertness. Thus, there is precedent that establishes that accommodations should be considered by evaluators, and that defendants may be found fit to stand trial based on the effect of proposed accommodations.

Accommodations are particularly useful for defendants with impairments in their ability to follow the course of a trial, ability to understand the substantial impact of evidence and ability to instruct counsel. For example, a defendant who was previously unfit to stand trial was found to be fit ‘so long as appropriate special measures are implemented in accordance with these reasons’.⁷⁹ The special measures included six pre-trial lawyer-client consultations to review the evidence that would be presented by the prosecution, brief adjournment after each witness so counsel could discuss the evidence with the defendant and a psychological assessment at least once to determine if the defendant understood the evidence from that day. Another defendant with significant cognitive impairments was recommended to have ‘breaks every 45 minutes to an hour with an opportunity for counsel to explain information’ to him.⁸⁰

Accommodation strategies are usually implemented by the defendant, their counsel and the court.⁸¹ For example, the court may benefit from education about the defendant’s diagnosis and abilities with subsequent recommendations about how to accommodate the defendant’s unique needs. The defendant, conversely, might benefit from education and training to remediate their fitness. Some strategies that expert witnesses may wish to consider include:

• shorter court appearances/sessions;

• visual aids, such as photographs and drawn representations of the courtroom, court personnel and/or evidence being discussed;

• attendance via teleconference to reduce the stress associated with visiting a courtroom;

• opportunities for the defendant to debrief with their formal and informal supports;

• frequent breaks to regulate emotions, clarify comprehension and provide instructions to counsel;

• pre-trial sessions between the defendant and their counsel to review the evidence against them and pre-empt the substantial effect of that evidence, thus reducing cognitive burden at the time of the trial;

• brief expert witness assessment at the conclusion of a day’s proceedings to assess comprehension of the evidence and the ability to instruct counsel;

• permission to engage with activities that improve focus and calm, such as fidget toys or emotional assistance animals;

• simplifying the language used in court;

• speaking slower and/or providing more time between questions to accommodate the defendant’s processing speed;

• allowing the defendant to give an uninterrupted narrative of events before questions are asked of them;

• using an intermediary to ask questions;

• note taking and hand gestures to signal when the defendant may be confused;

• sitting close to counsel to hear better;

• sitting close to witnesses or using microphones to hear better;

• reducing sedative medication where medically safe to do so;

• providing court transcripts and/or written summaries/notes of the proceedings for the defendant to consider afterwards;

• educating the defendant about the court proceedings, court personnel and appropriate courtroom behaviour;

• educating the defendant about their charges, plea options and practicing decision-making strategies to decide on their defence (eg, a decisional balance);

• educating the defendant about the evidence against them; and, among others;

• training to answer questions, such as role play of back-and-forth conversation.

In sum, although not required in legislation, there are numerous examples within case law that accommodations should be considered when evaluating a defendant’s fitness for trial. Where expert witnesses differ on a defendant’s fitness and one of those witnesses considers that accommodations may overcome the unfitness, that opinion has triumphed over the opinion of the witness who did not consider accommodations. Australian law reform commissions recommend the consideration of accommodations in fitness evaluations because being fit to stand trial is inevitably in the defendant’s best interests.⁸² Doing so would also bring legislation in line with human rights obligations, as articulated for example in the United Nations Convention on the Rights of Persons with Disabilities, which requires that signatory countries facilitate such accommodations.

New Zealand and other international jurisdictions

An additional consideration for mental health evaluators is that the Presser criteria have been used to inform the assessment of fitness to stand trial in other jurisdictions. New Zealand is one such jurisdiction where Presser has informed fitness decisions. The law and procedure of fitness to stand trial is outlined in the Criminal Procedure (Mentally Impaired Persons) Act 2003 (NZ). Fitness to stand trial is defined in s 4(1) as:

A defendant who is unable, due to mental impairment, to conduct a defence or to instruct counsel to do so; and

(b) includes a defendant who, due to mental impairment, is unable—

1. to plead:

2. to adequately understand the nature or purpose or possible consequences of the proceedings:

3. to communicate adequately with counsel for the purposes of conducting a defence.

Mental impairment is not defined in the Act but is taken to include any condition that impairs mental functioning. In R v R,⁸³ the defendant had several contributing conditions to her unfitness, which were all deemed valid contributors. These were hearing impairment, language impairment, limited English as a second language, intellectual disability, psychosis and borderline personality disorder.

According to the Act, defendants can be found unfit for trial at any stage of the proceedings until the matter has concluded (s 7(1)). The defendant must be assessed by two health practitioners (s 8A(1)) to determine if the defendant has a mental impairment (s 8A(2)). The expert witnesses may then give evidence to the court about whether the defendant is unfit to stand trial (s 8 A(2)(a)), which is decided on the balance of probabilities (s 8A(3)). Proceedings continue normally if the defendant is fit for trial (s 8A(4)), or special measures are enacted if the defendant is unfit for trial (s 8A(5)). In the latter instance the court decides, on the balance of probabilities, whether the evidence against the defendant is sufficient to establish that they caused the offence (s 10(2); s 11(2); s 12(2)). This may be decided by a judge or jury depending on the circumstances. If the court decides that the evidence does not establish that the defendant caused the offence, the charge is dismissed (s 13(2)(a)) and the finding of unfitness to stand trial is quashed (s 13(2)(b)).

The defendant is not required to attend the fitness hearing if they are too mentally impaired to do so (s 15). Unfit defendants may be bailed to a place approved by the court, a hospital or a secure facility (s 23(2)) within 30 days of the finding of unfitness (s 23(4)). Subsequent orders may be made for the defendant to receive mental health treatment, disability support, imprisonment or immediate release (s 25(1)(a–d)). In making an order, the need for community protection is of paramount consideration to the court (s 23(3)).

Expert witnesses are required to assess the legislated test for fitness but they may use the Presser criteria to do so. The first instance of this being approved by the court was P v Police⁸⁴ where Justice Baragwanath remarked that Presser ‘is more discriminating than the simple single issue of Pritchard’ and the legislated test in New Zealand.⁸⁵ The expert witnesses in that matter also agreed that Presser was more helpful in the assessment of fitness than the legislated test. The Presser standards, as articulated by Justice Smith, were defined as comprising nine standards by Justice Baragwanath. These were:

1. understanding what it is that he has been charged with;

2. pleading to the charge and exercising his right of challenge;

3. understanding that the proceedings before the Supreme Court would be an inquiry as to whether or not he did what he was charged with;

4. following, in general terms, the course of the proceeding before the Court;

5. understanding the substantial effect of any evidence given against him;

6. making a defence to, or answering, the charge;

7. deciding what defence he would rely on;

8. giving instructions to his legal representative (if any); and

9. making his version of the facts known to the Court and to his legal representative, if any.⁸⁶

These criteria, and reference to Presser, are evident in numerous New Zealand Supreme Court, High Court and Youth Court decisions.⁸⁷ Thus, precedent establishes that considering the Presser standards is appropriate in New Zealand because they may be more helpful at discriminating between fit and unfit defendants than the legislated test. However, the legislated criteria must still be addressed in expert witness reports.

Other international jurisdictions utilise similar criteria to Presser, have used Presser in the courts or recommend the implementation of Presser. There are at least two decisions from the Supreme Court of Vanuatu that considered Presser when deciding the defendants’ fitness to stand trial⁸⁸ and two decisions from the Supreme Court of Papua New Guinea.⁸⁹ The Republic of the Marshall Islands does not utilise Presser but has an overlapping definition. Per s 4.04 of the Code (31 MIRC, Ch 1) (2011), unfitness to stand trial is when a defendant, who as a result of mental disease or defect, ‘lacks capacity to understand the proceedings against such person, or to assist in his or her own defense’. There is no statutory definition of fitness in Fiji, but a recent High Court matter accepted a medical expert’s consideration of the Presser criteria.⁹⁰ The Solomon Islands lack a legislated definition of fitness,⁹¹ but the following was recommended by the Solomon Islands Law Reform Commission:

The appropriate criteria to determine whether a person is not fit to plead or stand trial should be based on any of the following – (a) the person is unable to plead to the charge; (b) the person is unable to understand the nature of the trial; (c) the person is unable to follow the course of the proceedings; (d) the person is unable to give instructions to his or her legal counsel; or (e) the person is unable to understand the substantial effect of any adverse evidence; and decide upon a defence, and make his or her version of facts known to the court and his or her counsel that may be given in support of the prosecution.⁹²

A brief review of fitness criteria in the Pacific suggests that Presser has some degree of relevance to international jurisdictions, although the criteria are not legislated in any of these jurisdictions. The strongest evidence of Presser being utilised comes from New Zealand, where evaluations of the legislated test are often informed by nine standards extracted from Australian precedent. Other jurisdictions have similarly utilised Presser or recommended that similar laws be introduced.

Conclusion

Fitness to stand trial is a legal enquiry that courts undertake, assisted by psychologists’ and psychiatrists’ evaluations of defendants when there is a real and substantial question of the defendant’s capacity. The intersection between law and mental health requires evaluators to possess competence in understanding the law and procedure of the legal matter before them, and to seek out learning opportunities to improve their expertise. Unfortunately, there is a dearth of fitness to stand trial learning opportunities for mental health professionals. This may result in misunderstanding the context of fitness to stand trial assessments.

This article summarised the context of fitness to stand trial assessments by explaining contextual legal considerations to the fitness enquiry. The considerations were that fitness must be evaluated when a real and substantial question exists, that evaluations must be reasonable and employ common sense and that accommodations should be considered when a defendant has impaired capacity. Underpinning these considerations is that the presence of mental illness or cognitive impairment does not imply unfitness, including when delusions affect the defendant’s perception of the trial. Further, defendants and their counsel are not required to have a trusting or amicable relationship, defendants are not required to present a defence that is in their best interests, and unmanageable behaviour that stems from mental illness or an impairment is not a valid cause of unfitness. Finally, there is international precedent, primarily from New Zealand, that the Presser standards may assist in structuring fitness assessments elsewhere.

Given the evolving nature of the law, clinicians have an ongoing responsibility to keep abreast of relevant laws and case interpretations in their jurisdictions.

Author note

Grant A. Blake, Centre for Forensic Behavioural Science, Swinburne University of Technology, Melbourne, Australia; James R. P. Ogloff, Centre for Forensic Behavioural Science, Swinburne University of Technology and Forensicare, Melbourne, Australia. Natalia Antolak-Saper, Faculty of Law, Monash University, Melbourne, Australia.

Ethical approval

This article does not contain any studies with human participants or animals performed by any of the authors.

Declaration of conflicts of interest

Grant Blake has declared no conflicts of interest.

James Ogloff has declared no conflicts of interest.

Natalia Antolak-Saper has declared no conflicts of interest.