Mental impairment and unfitness to be tried

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Simon Moglia

Guest post by Simon Moglia Victorian Barrister. Simon practises primarily in the Criminal jurisdiction in the County and Supreme Courts and has particular experience in cases of mental impairment and fitness to plead.

The Act

  1. The most recent version of the Act is dated 25 November 2015. Following the Victorian Law Reform Commission review of 2014, there are a range of amendments in varying stages of implementation. Some recommendations were quite substantial, including fundamental reforms to the definition of the the criteria for mental impairment and fitness. Watch this space.
  2. Mental impairment is a technical term under the Act. Part 4 of the Act sets out the defence and related provisions. It replaces the common law defence of insanity (section 25). It relates to the mental state of an accused person at the time of the alleged offence and is defined by reference to the effect on the person of their condition, rather than the nature of the condition itself (section 20).
  3. Unfitness to be tried is also a technical term under the Act. It is defined in Part 2.
    The definition is also written in terms of the effect of a condition on the person, rather than the cause of the persons (in)ability. There are six conditions for fitness to stand trial (section 6).
  4. Supervision (either in custody or non-custodial) is the usual result of being found not guilty because of mental impairment or of being found unfit (whilst having done the acts alleged). Supervision is dealt with in Part 5 of the Act. It is an .indefinite order and only ceases when the trial court determines that there is no further need for supervision in order to protect the safety of the community.
  5. Unconditional release is an alternative to supervision, but it is unusual for perhaps obvious reasons. However, if the risk of further incidents are amply covered by existing interventions (eg, disability services), then such release is a realistic option.
  6. The Act covers a range of other matters, including reviews of supervision orders, granting leave from custody, interstate transfer of supervised persons, et cetera.

An important distinction

  1. Timing is important. The mental impairment question is directed to the time of the alleged offence. It does not relate to the time of trial or any of the pre-trial procedures in the case. So, a person may be “mentally impaired” at the time of the alleged offence but quite capable of instructing lawyers during the consequent proceedings. Conversely, a person who is unable to instruct lawyers during a proceeding will not necessarily have a mental impairment defence.


  1. Part 2 of the Act deals with fitness. Section 6 reads:

6 When is a person unfit to stand trial?

(1) A person is unfit to stand trial for an offence if, because the person’s mental processes are
disordered or impaired, the person is or, at some time during the trial, will be-

(a) unable to understand the nature of the charge; or

(b) unable to enter a plea to the charge and to exercise the right to challenge jurors or the jury; or

(c) unable to understand the nature of the trial (namely that it is an inquiry as to whether the person committed the offence); or

(d) unable to follow the course of the trial; or

(e) unable to understand the substantial effect of any evidence that may be given in support of the prosecution; or

(f) unable to give instructions to his or her legal practitioner.

(2) A person is not unfit to stand trial only because he or she is suffering from memory loss.

  1. A wide range of conditions may result in a person being unfit to be tried. It includes mental illnesses such as schizophrenia, intellectual disability, brain injury and dementia.
  2. While a person is presumed to be fit, whether they are so is a matter of fact (section 7) – which may change from day-to-day throughout the course of any trial proceeding. So, whilst unusual, a question of fitness to be tried can arise on a number of occasions throughout a case. Normally, however, it arises because of a long-term vulnerability that is detected well before the trial commences.
  3. At a committal, if there is a question of fitness then the issue is referred to the trial court for determination by a trial judge (section 8). But this does not prevent the committal proceeding in the usual course to deal with the facts of the case. So, it is important for lawyers to understand that a (possibly) unfit person should not lose the benefit of a committal hearing simply because they are unable to instruct in the usual manner.
  4. It is ethical for a lawyer to proceed to ask questions at committal in order to deal with factual issues in the usual course. Without instructions, however, a positive assertion could not be made (see applicable ethics committee rulings).
  5. Ultimately, the process of determining whether a person is fit takes some months and the assessment of different experts (sections 11-14). If the jury empanelled for the task finds the accused unfit, the judge must determine whether they are likely to become fit within 12 months. If there is a chance that they are only temporarily disadvantaged, the trial process is adjourned in the hope that they become fit. If they are not likely to “recover” in that time, then the special hearing process under part three of the act commences.
  6. A special hearing under Part 3 is for all intents and purposes a trial by jury of the facts in issue. A not guilty plea is entered on the accused behalf. The jury can find the person not guilty, not guilty because of mental impairment (if that defence is raised) or that the offence was committed (note: the term “guilty” is not used here).
  7. Importantly, and unfit person is not at risk of a “sentence” of any kind in the usual sense. The only option for the court is to impose supervision or to release unconditionally. This is an important recognition that the person has not been able to defend them self in the “trial” process and that the only appropriate kind of order in such circumstances is a protective one. This is the essential difference between supervision and sentence.
  8. Some warning may be detected in a comment in R v Langley {2008) 19 VR 90 at [26] where Lasry J repeated the need for trial judges to “investigate whether the process leading to a special hearing and indefinite supervision order is the only genuine alternative open ‘in the interests of justice’.”

Mental impairment

  1. Mental impairment is defined in section 20, as follows:

20 Defence of mental impairment

(1) The defence of mental impairment is established for a person charged with an offence if, at the time of engaging in conduct constituting the offence, the person was suffering from a mental impairment that had the effect that-

(a) he or she did not know the nature and quality of the conduct; or

(b) he or she did not know that the conduct was wrong (that is, he or she could not reason with a moderate degree of sense and composure about whether the conduct, as perceived by reasonable people, was wrong).

(2) If the defence of mental impairment is established, the person must be found not guilty because of mental impairment.

  1. A person found not guilty because of mental impairment will either be liable to supervision under Part 5 or released unconditionally {section 23).

An important exclusion drug-induced states

  1. Even though the definition of the mental impairment is focused on the effect of a condition rather than the cause, some “causes” are excluded. Namely, drug induced states. Essentially, the distinction is whether the cause is a disease or disorder of the mind as opposed to a temporary result of substance abuse. Of course, if a psychosis was initially drug induced {and not able to form the basis of a mental impairment defence) but later gives rise to the emergence of a condition such as schizophrenia, then the picture becomes more complex. Careful consideration of the expert opinion about the operative cause of the impairment will be necessary. More than one opinion may be called for.
  1. Arguably, such causes are not excluded from an assessment of the person’s fitness. But they are unlikely to result in any meaningful finding as to fitness because the effect is usually transitory and would not last longer than 12 months.

An important task for lawyers contemporaneous notes

  1. As a consequence, an important task falling to the lawyer is to take note of a client’s mental state {e.g., on first seeing them in the cells) and of other possible sources of such observations {e.g., treating doctor’s, existing support workers). Such sources may be crucial for a later assessment of the client’s state of mind at the time of the incident. The importance of contemporaneous notes cannot be overstated.


  1. The Court can make a supervision order that is either custodial or non-custodial {section 26). In order to make such an order the Act requires an expert report about the needs of the case and a certificate about available services. These are intended to put the court in the position to make the most appropriate order in favour of the person and community safety.
  2. Section 39 is the centrepiece of the supervision provisions. It is the guiding principle by which all decisions about a person’s supervision are made. Importantly, the court is required to minimise restrictions on a person’s freedom as well as to their personal autonomy. The second is perhaps often forgotten. That is, the courts order is intended to promote autonomy where it is consistent with community safety.
  3. Supervision is indefinite. Even though the Court sets time periods within which reviews must occur, the order lasts until the court revokes it. This is the source of a common misunderstanding. It is also the source of a common view that it is better to plead guilty and get a short sentence because of the principles in R v Verdins (2007) 169 A Crim R 581, than to pursue mental impairment – resulting in what could be a lifetime order. Aside from the term of the order, being under the supervision of doctors rather than Corrections is also a significant consideration.

Recent changes and cases

Children’s’ Court

  1. The Court of Appeal in 2011 decided CL (a minor by his Litigation Guardian) v OPP Ors [2011] VSCA 227 (5 August 2011). The central issue was whether the Children’s Court had jurisdiction to determine a child’s fitness to be tried. While the Court of Appeal refused leave to appeal for reasons to do with its discretion to intervene on judicial review, its comments on the central issue were clear. The Act as it then was, did not empower the children’s Court to deal with questions of unfitness.
  2. So, effective 1November2014, the Act was amended to empower the Children’s Court to consider unfitness to be tried and mental impairment. A new Part SA of the Act is a lengthy addition and provides a range of procedures similar to those already in place relating to adults in the higher jurisdictions. There is an appeal process from Children’s Court decisions to the County or Supreme Courts depending on who made the decision in the Children’s’ Court.
  3. The relationship between mental impairment of a child and doli incapax is of interest. The latter is said to apply in defence of a child under 14 if they are not shown to have understood the “serious wrongfulness” of their alleged conduct.
  4. The practical effects of these amendments is that the kind of work previously done in superior courts with increased levels of funding and time is now being addressed in the children’s Court. Lawyers are well advised to acquaint themselves with the procedures for obtaining funding and expert reports in relation to a child who may have a mental impairment defence.

Reviews of Supervision

  1. In Buchanan v The Secretary to the Department of Health & Ors [2014] VSCA 176 (15 August 2014) the Court of Appeal upheld a judge’s continuation of a supervision order on the basis of risk due to ongoing drug use rather than due to the mental illness that had by then come under control. So, it is important to understand the once under supervision, multiple factors can come into play to forestall its revocation.


  1. In Kosian v The Queen [2013] VSCA 357 (6 December 2013), the Court of Appeal considered the relevance of the accused’s own actual awareness as to wrongfulness of his/her actions. It said at [67], “Although the test is concerned with whether the accused was aware that reasonable people would regard his conduct as wrong, his comprehension as to whether his actions were morally or legally wrong is not irrelevant to the evaluative task.” So, particular focus may be brought to bear on observations surrounding the incident and the lawyer’s ability to marshal information.

The importance of juries

  1. A question arose in a Supreme Court trial (see DPP v CJC (2008) 21 VR 581) about whether the court in relation to an unfit person can use the procedure in section 21 (four) to deal with the issue of mental impairment. This procedure avoids the need for a second jury to determine the question. It is particularly useful when all experts and parties agree that mental impairment is made out. In such a case, it is difficult to envisage any jury failing to agree that the person had a mental impairment.
  2. In SM v The Queen [2013) VSCA 342 {28 November 2013), however, the Court of Appeal determined that once a person had been found unfit to be tried the court was prevented from using the “consent procedure” in section 21 of the act to deal with the question of mental impairment. Some commentators have questioned the utility of such a process, indeed submissions were made to the VLRC review that the consent procedure should be available.
  3. What can be seen from these cases is that, notwithstanding the convenience of all involved, the process of investigating a person’s fitness and of determining them to have been mentally impaired is to be protected by the jury process. It is noteworthy that an important justification for the Act on its establishment was that such decisions should be made in a public and accountable way rather than being left to the executive.

Date Published: 22 March 2016

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