Procedures for fitness to be tried (including special hearings)
[4-300] Introduction
The Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (the Act), prescribes criminal procedures for the Supreme Court and District Court for persons affected by mental health and cognitive impairments. The Act replaced the Mental Health (Forensic Provisions) Act 1990 (the 1990 Act) and commenced on 27 March 2021.
A “defendant”, the term generally used throughout the Act, is defined in s 3(1) to include an accused.
Part 4, Div 2 of the Act deals with fitness to stand trial (see [4-310]) and Pt 4, Div 3 deals with special hearings, including the special verdict of act proven but not criminally responsible on the ground of a mental health impairment or cognitive impairment (see [4-315]).
When a fitness inquiry is held, the court is obliged to consider “whether the trial process can be modified, or assistance provided, to facilitate the [accused’s] understanding and effective participation in the trial”, so as to avoid a determination of unfitness: s 44(5)(a). An example may be introducing frequent breaks to enable an accused with an intellectual disability to receive regular explanations in language they can understand as to what is happening in the proceedings, or permitting a support person to be seated alongside the accused. It is important to clarify with the parties precisely what is being sought.
For the procedures where fitness is raised in relation to federal offences see [4-305].
See generally, Criminal Practice and Procedure NSW at [17-s1].
[4-302] Application of the Act
The Act applies to:
-
proceedings which had commenced but were not completed before 27 March 2021 if the accused’s unfitness to be tried was raised before then
-
a fitness inquiry or special hearing which commenced under the 1990 Act but was not completed before 27 March 2021: Sch 2, Pt 2, cl 7.
Section 38 of the 1990 Act continues to apply to proceedings where the defence of not guilty by reason of mental illness was raised before 27 March 2021 until a determination is made as to whether a special verdict should be entered or the defence is no longer being raised. However, if a special verdict of not guilty by reason of mental illness would, but for the new Act, have been found the court must instead find the special verdict of act proven but not criminally responsible: Sch 2, Pt 2, cl 5. In R v Tonga [2021] NSWSC 1064, Wilson J considered what was meant by “the commencement of proceedings” in the context of a mental illness (or impairment) defence under Pt 3 of the new Act, and concluded the proceedings commenced when the Crown presented the indictment: at [6]–[10]; see also R v Siemek (No 1) [2021] NSWSC 1292 at [9].
Part 2 of the 1990 Act continues to apply to criminal proceedings where, before 27 March 2021, a limiting term had been nominated or an order made under s 27 of that Act: Sch 2, Pt 2, cl 7A.
[4-304] Statutory definitions of mental health and cognitive impairments
The Act contains definitions of a “mental health impairment” and a “cognitive impairment”. Previously the question of whether a person suffered a mental health impairment was determined in accordance with the common law. A person suffering from a cognitive impairment did not necessarily fall within the parameters of the 1990 Act.
Introducing these separate categories of impairment is one of the most significant changes made by the Act to the law as it was under the 1990 Act. Each are defined in the Act. The category into which an accused person falls will have significant consequences if there is a finding that they are not fit to be tried, with the need to refer the matter to the Mental Health Review Tribunal potentially obviated. For an accused with a cognitive impairment, it is ordinarily unlikely that their condition will change, or that they will become fit to be tried with time and treatment. See further, K Eagle and A Johnson, “Clinical issues with the Mental Health and Cognitive Impairment Forensic Provisions Act 2020” (2021) 33(7) JOB 67.
The NSW Law Reform Commission in its Report 135, People with cognitive and mental health impairments in the criminal justice system: diversion, 2012, pp 134–135, discussed the problems associated with conflating the concepts of mental illness and cognitive impairment and the disadvantages caused to those suffering from the latter as a result. This was part of the rationale for the recommendation that a separate statutory definition be included in the legislation [see recommendation 5.1–5.2].
A “mental health impairment” is defined in s 4 of the Act. A person has such an impairment if:
- (a)
-
the person has a temporary or ongoing disturbance of thought, mood, volition, perception or memory
- (b)
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the disturbance would be regarded as significant for clinical diagnostic purposes, and
- (c)
-
the disturbance impairs the person’s emotional wellbeing, judgment or behaviour: s 4(1).
See s 4(2) for a non-exhaustive list of the disorders from which a mental health impairment may arise.
A person does not have a mental health impairment if their impairment is caused solely by the temporary effect of ingesting a substance or by a substance use disorder: s 4(3).
A “cognitive impairment” is defined in s 5. A person has such an impairment if:
- (a)
-
the person has an ongoing impairment in adaptive functioning
- (b)
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the person has an ongoing impairment in comprehension, reason, judgment, learning or memory, and
- (c)
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the impairments result from damage to or dysfunction, developmental delay or deterioration of their brain or mind that may arise from a condition set out in s 5(2) or for other reasons.
Section 5(2) provides that a cognitive impairment may arise from any of the following conditions but may also arise for other reasons:
- (a)
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intellectual disability,
- (b)
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borderline intellectual functioning,
- (c)
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dementia,
- (d)
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an acquired brain injury,
- (e)
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drug or alcohol related brain damage, including foetal alcohol spectrum disorder,
- (f)
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autism spectrum disorder.
[4-305] Fitness — federal offences
The Crimes Act 1914 (Cth) makes special provision for federal offenders in Pt IB, Div 6. In R v Baladjam [No 13] (2008) 77 NSWLR 630, it was held that the issue of the fitness of an accused charged with a federal offence could be determined by a judge in accordance with the relevant State procedures without infringing s 80 of the Constitution.
The State procedures for special hearings (conducted when an accused has been found unfit) found in Pt 4, Div 3 do not apply to federal offenders. The procedure to be followed is set out in s 20B of the Crimes Act. See, in particular, ss 20B(3) and 20B(5)–(7). Following commencement of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 on 27 March 2021, there is some greater commonality between the two fitness schemes. For example, ss 20BB and 20BC of the Crimes Act require a court determining the fitness to be tried of a federal offender to also determine whether or not they will become fit to stand trial within 12 months.
However, differences remain between the two schemes. Once a court finds a federal offender unfit to be tried, a determination must be made as to whether there is a prima facie case in respect of the offence: s 20B(3). The evidence that may be given to assist in determining this, and the course that may be taken by the accused is set out in s 20B(7). Once that decision is made, the court then goes on to determine whether or not the accused will become fit within 12 months.
Note: where fitness is raised with respect to an accused charged with State and federal offences, it is necessary to ensure that the requirements of both regimes are complied with.
[4-306] The procedural pathways when fitness is raised
When Pt 4 applies, at various stages of the proceedings the court will need to make decisions about the interim or long-term placement of the person facing criminal charges before the court. A court may seek assistance in such decisions from Justice Health and the Forensic Mental Health Network (FMHN) and/or the Mental Health Review Tribunal (MHRT).
The Table at [4-320] informs judicial officers and practitioners as to the procedural steps and how and when information and/or recommendations may be sought from the FMHN and the MHRT. Not every procedural detail of Pt 4 of the Act is addressed. See the glossary of relevant terms after the Table at [4-320].
The FMHN is part of NSW Health and provides:
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direct mental health care to those in correctional centres and the high security Forensic Hospital, and
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oversees the care provided by Local Health Districts to forensic patients in hospital and community settings.
When the accused has a cognitive impairment Justice Health and the FMHN will not assess and manage them. In such cases, it will be necessary for the defence to obtain an appropriate report, which is usually prepared by a psychologist or neuropsychologist. The Procedure Table at [4-320] indicates when that might be necessary. If the accused has a mental health impairment and dementia (a cognitive impairment) then the FMHN is likely to be involved.
The MHRT has prescribed statutory functions under Pts 5 and 7 of the Act. When a court is considering disposition decisions, the FMHN, the MHRT or, in the case of an accused who is cognitively impaired, an appropriately qualified professional may be able to assist with a report which includes recommendations concerning the appropriate care and treatment of the person.
[4-310] Part 4, Div 2 — procedures when fitness raised
Part 4 of the Act is headed “Fitness to stand trial”. It applies to criminal proceedings in the Supreme and District Courts: s 35. The question of a person’s unfitness to be tried for an offence:
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may be raised by any party to the proceedings or by the court: s 39
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should, so far as practicable, be raised before the person is arraigned but may be raised at any time during the hearing of the proceedings and more than once: ss 37(1), (2)
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is to be determined by the judge alone on the balance of probabilities: ss 38, 44(1).
An inquiry into an accused’s unfitness to be tried must not be conducted in an adversarial manner and the onus of proof does not rest on a particular party: ss 44(4), (5).
The fitness test
Section 36 now creates an explicit statutory test for fitness, based on the principles set out in R v Presser [1958] VR 45, which were applied in Kesavarajah v The Queen (1994) 181 CLR 230. Section 36(1) provides that a person will be unfit to be tried if, because they have a mental health or cognitive impairment, they cannot do one or more of the following:
- (a)
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understand the offence the subject of the proceedings,
- (b)
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plead to the charge,
- (c)
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exercise the right to challenge jurors,
- (d)
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understand generally the nature of the proceedings as an inquiry into whether the person committed the offence with which the person is charged,
- (e)
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follow the course of the proceedings so as to understand generally what is going on,
- (f)
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understand the substantial effect of any evidence given against the person,
- (g)
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make a defence or answer to the charge,
- (h)
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instruct the person’s legal representative so as to mount a defence and provide the person’s version of the facts to that legal representative and to the court if necessary,
- (i)
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decide what defence the person will rely on and make that decision known to the person’s legal representative and the court.
The list is not exhaustive and does not limit the grounds on which a court may consider a person to be unfit to be tried for an offence: s 36(2).
Once fitness is raised, the pathways in the proceedings, and the points during proceedings at which FMHN assistance and information may be available, are set out in the Table at [4-320].
[4-315] Part 4, Div 3 — procedures for special hearings
Where a court determines the accused is unfit to be tried, it conducts a special hearing: ss 54, 56. The procedures for special hearings only apply to State offences. For Commonwealth offences see Pt IB, Div 6 Crimes Act 1914 (Cth).
A special hearing is conducted by judge alone unless an election for a jury is made by the accused, their lawyer or the prosecutor: s 56(9).
Special hearings are conducted as nearly as possible as a criminal trial, although the court may, if it considers it appropriate, modify the court’s procedures to facilitate the accused’s effective participation: s 56(1), (2).
The accused is taken to have pleaded not guilty and may raise any defence that could properly be raised if the special hearing was an ordinary criminal trial: s 56(5), (6). This permits the accused to raise the defence of mental health impairment or cognitive impairment in Pt 3 of the Act.
The verdicts available include:
- (a)
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not guilty
- (b)
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a special verdict of act proven but not criminally responsible
- (c)
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that on the limited evidence available, the accused committed the offence charged, or
- (d)
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that on the limited evidence available, the accused committed an available alternative offence: s 59(1).
If the court finds the accused committed the offence, and would have imposed a sentence of imprisonment, it must impose a limiting term: ss 63–65.
See step 5–5B at [4-320].
If the verdict is act proven but not criminally responsible or simply not guilty, the accused is dealt with in the same manner as if that verdict was given in a normal trial: s 60.
[4-320] Part 4 procedure
| Step 1: Fitness is raised | Section |
|---|---|
|
Upon fitness first being raised the court may dismiss the charge (without conducting an inquiry) if of the opinion, having regard to any of the following, that it is inappropriate to inflict any punishment—
|
42(4) |
|
OR the court may make orders concerning the accused before holding an inquiry into the person’s fitness including to: |
43 |
Under s 43 where the accused is remanded in custody or bail is granted (but not met) the standard remand warrant is issued. Where the accused is granted bail and bail is to be entered at court, standard bail forms are used. See step 3 when bail is granted. Note 1: The court, the accused or the prosecutor may raise the question of an accused’s unfitness to be tried: s 39. Note 2: If fitness is raised before arraignment, the court must determine whether an inquiry should be conducted before hearing proceedings: s 40(1). If raised after arraignment, it must be dealt with in the absence of the jury: s 41. Note 3: If reports are ordered under s 43(d) or (e) discuss an appropriate timetable with the parties. The FHMN does not provide reports for accused persons suffering from a cognitive impairment. Reports should address whether, if the accused is found unfit to be tried, they will be likely to become fit within 12 months. Note 4: In appropriate cases where the accused has a cognitive impairment discuss with the parties whether consideration should be given to adapting or modifying the trial process. |
| Step 2: Court holds inquiry | Section |
|---|---|
|
See inquiry procedure at s 44 including matters to consider in determining fitness such as whether the trial process can be modified, the complexity of the trial, and whether the accused person is represented. After an inquiry: |
44 |
|
46, 52 |
|
47, 48, 49 |
| Note 1: To assist in determining whether or not the accused is likely to become fit within 12 months, it may be necessary for the court to hear evidence from the psychiatrists and/or psychologists who prepared reports for the hearing: see, for example, R v Risi [2021] NSWSC 769. | |
| Note 2: A finding under s 47(1)(b), that an accused will not become fit, should only be made if there is a real certainty about their lack of fitness during the relevant 12-month period because the effect of such a finding is to exclude the MHRT from an assessment of the accused: R v Risi [2021] NSWSC 769 at [55]. | |
|
If the court finds the accused is unfit to be tried, it can make the following orders:
See order where bail is granted or where order is to remand the accused. |
47(2) |
| Step 2A: Court finds accused unfit and will not become fit within 12 mths |
Section |
|---|---|
| If the court, after an inquiry, finds the accused will not become fit within 12 months, the court holds a special hearing under Pt 4, Div 3 — see step 5 | 47(1)(b), 48 |
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Note 1: Before holding a special hearing, the court must obtain advice from the DPP as to whether or not further proceedings will be taken: s 53(2). Where no further proceedings will be taken, the court must order the accused’s release: s 53(3). |
53 |
| Note 2: As to the meaning of “will not” see R v Woodham [2022] NSWSC 1154 at [18]–[23]. |
| Step 2B: Court finds accused unfit but may become fit within 12 mths — referral to MHRT |
Section |
|---|---|
|
If the court determines the accused is unfit to be tried and may become fit to be tried within 12 months it must refer them to the MHRT for review: s 49(1). See step 4 . The court may grant the accused bail for no longer than 12 months on being notified of a determination of the MHRT under s 80 that the accused has become fit to be tried: s 49(2). |
49 |
| While an accused can be remanded in custody, it is doubtful the court has either the power to order they be detained in a particular facility or type of facility (R v Risi at [59]–[60]) or to refer the matter back to the DPP to consider whether the prosecution continue (R v Risi at [61]). | 47(2)(d), (e) |
| Step 3: Bail |
Section |
|---|---|
|
If bail is granted for an accused suffering from a mental health impairment, the FMHN will, if requested, assess them for suitability for care by community mental health services while on bail, when the court finds the person is:
To arrange an assessment and report by FMHN and, where appropriate, care and/or treatment whilst on bail, it is suggested the court:
Within eight weeks FMHN will provide a report to the court, the DPP and the person’s legal representative indicating the outcome of the assessment, which:
Upon receipt of the report the court, DPP or person’s legal representative may relist the matter and the court may amend bail conditions or make other appropriate orders. If bail is granted for an accused suffering from a cognitive impairment, note that the FMHN cannot provide reports and the defence must provide reports and information to the court as to an appropriate placement so that appropriate bail conditions may be framed. |
| Step 4: Referral to MHRT |
Section |
|---|---|
|
The MHRT must review the accused as soon as practicable upon referral by the court under s 49(1) to determine whether they have become fit. |
78(b), 80 |
|
50 |
|
51 |
|
53 |
The MHRT must make the determination as to fitness on the balance of probabilities: s 80(3). |
80 |
|
On review, the MHRT may make an order as to:
|
81 |
| Step 4A: Ongoing MHRT review for an accused found unfit |
Section |
|---|---|
| The MHRT will continue to review an accused (now a forensic patient) who is unfit and detained until the special hearing has been conducted. If the MHRT is of the opinion that a forensic patient has become fit to be tried, the MHRT will notify the court, DPP and the accused’s legal representative: ss 53(1)(c), 80(2)(a). |
78–80 |
|
53 |
The court must not hold a further fitness inquiry merely because the MHRT notifies the court the defendant has become fit: s 50(2). Note: A forensic patient is defined in s 72. The definition does not include an accused found unfit to be tried who has been released on bail: s 72(2). |
50 |
| Step 5: Special hearing |
Section |
|---|---|
|
Special hearing |
59(1) |
|
Procedures for special hearings are set out in s 56. A special hearing is to be conducted as nearly as possible as if it were a trial of criminal proceedings: s 56(1). The matter is determined by judge-alone unless a party elects to have the matter determined by a jury: s 56(9). There are three possible verdicts: |
56 |
|
59(1)(a), 60 |
|
59(1)(b) |
|
59(1)(c), (d) |
|
The court may make an order for a report by a forensic psychiatrist (or person of a class prescribed in the regulations) not currently treating the defendant, addressing whether the defendant’s release is likely to seriously endanger theirs or the public’s safety. Note: If a jury is determining the special hearing, a direction such as that at [4-331] will be required: see s 56(11). |
66 |
| Step 5A: Act proven but not criminally responsible |
Section |
|---|---|
|
Where a special verdict of act proven but not criminally responsible (NCR) is given, the court makes orders as prescribed by s 33 including: |
59(1)(b), 61 |
|
33 |
|
Unless an order is made for the accused’s unconditional release, the court must refer them to the MHRT to be dealt with under Pt 5 — see note in s 33. |
67 |
|
For an accused suffering from a mental health impairment, the court may be assisted by the FMHN with recommendations as to an appropriate placement. Upon a finding of act proven but not criminally responsible the FMHN, if requested, will provide a report to the court. The procedure to obtain this information is similar to obtaining a sentence assessment report and is as follows:
See order for release under s 33 and order for detention. Note: The defence will need to make arrangements to obtain a report for an accused suffering from a cognitive impairment. If the accused is in custody and suffering from a cognitive impairment only, then such a report may be obtained from the Specialist Disability Service of Corrective Services. |
66 |
| Step 5B: Offence committed on limited evidence |
Section |
|---|---|
|
If the court finds that on the limited evidence before it, the accused committed the offence charged or an alternative offence (a qualified finding of guilt) then: |
59(1)(c), (d), 62 |
|
63(3), (6) |
See order under s 65. In determining a limiting term or other penalty the court must take into account factors in s 63(5). |
63(2), 65 |
| Note 1: See step 5A as to reports that may be provided pursuant to s 66. | |
| Note 2: The defence will need to make arrangements to obtain a report for an accused suffering from a cognitive impairment. If the accused is in custody and suffering from a cognitive impairment only, then such a report may be obtained from the Specialist Disability Service of Corrective Services. | |
| Note 3: On application by the Attorney General, the court may order an extension or interim extension of the defendant’s status as a forensic patient under ss 121, 130 respectively and an examination under s 126(5). See AG (NSW) v Bragg (Preliminary) [2021] NSWSC 439 at [19]–[32] and AG (NSW) v Wright (by his tutor Johnson) (Preliminary) [2022] NSWSC 537 at [12]–[32] in respect of the statutory requirements and various tests to be applied when determining whether to grant an extension order. |
| Step 6 |
Section |
|---|---|
|
The MHRT continues to review a forensic patient who has been found unfit and ordered to be detained, following a special hearing. If the MHRT is of the opinion that a forensic patient has become fit to be tried, the MHRT will notify the Court and the DPP. See step 4A. |
Glossary/abbreviations
Cognitive impairment: defined in s 5 of the Act. See [4-304].
Community mental health service: generally means a Local Health District. Local Health Districts are constituted under s 17 Health Services Act 1997. They provide a range of health services for residents of their area including mental health services. Eight Local Health Districts cover the Sydney metropolitan region, and seven cover rural and regional NSW.
Disposition decision: an interim or final order in accordance with the powers conferred by the Act determining where a person will be placed.
FMHN: Forensic Mental Health Network. Part of the Justice and Forensic Mental Health Network, a statutory health corporation constituted under the Health Services Act 2011: Sch 2. The FMHN is the principal service provider and coordinating agency for forensic mental health services in NSW.
Forensic Hospital: a “high secure” forensic mental health facility located at 1300 Anzac Parade, Matraville, administered by NSW Health (Justice Health).
Forensic patient: defined in s 72 as a person who is detained in a mental health facility, correctional centre, detention centre or other place, or released from custody subject to conditions, pursuant to an order under:
- 1.
-
ss 33, 47, 50, or 65 of the Act , or
- 2.
-
s 7(4) Criminal Appeal Act 1912 (including that subsection as applied by s 5AA(5) of that Act).
A defendant who has been found unfit and released on bail is not a forensic patient: s 72(2).
A forensic patient can be made the subject of an extension order (see Pt 6 of the Act). Section 158 provides that, at least 6 months before the expiry of a limiting term or extension order to which a forensic patient is subject, the MHRT must inform the Ministers responsible for the Act of the date the limiting term (or if applicable extension order) will expire. Part 6 Div 3 sets out the process by which the Supreme Court can (on application of the relevant Minister) make an order for the extension of a person’s status as a forensic patient.
Inquiry: an inquiry under Pt 4 Div 2 of the Act conducted by judge alone in order to determine whether a person is unfit to be tried for an offence.
Long Bay Hospital: A hospital within Corrections. Maximum security hospital jointly administered by Corrective Services and the NSW Department of Health (Justice Health) with three wards allocated for long-term and short-term forensic patients. Located at 1300 Anzac Parade, Matraville.
Mental health impairment: defined in s 4 of the Act. See [4-304].
NCR: act proven but not criminally responsible.
Reports: a report prepared, in the context of proceedings under the Act, by the FMHN at the request of a court to assist in determining a disposition decision. The power to order such a report arises under either s 33 or s 66 of the Act. The types of matters addressed by a report include, for example:
- 1.
-
In the case of a person on bail or to be released into the community, suggestions as to appropriate conditions taking into account the terms of s 33(3) of the Act
- 2.
-
In the case of a person detained in a mental health facility, advice on:
- (a)
-
Placement options appropriate for the person given their mental health impairment and current clinical presentation; including:
- (i)
-
Community release if appropriate in respect of the circumstances and permissible under the Act
- (ii)
-
Interim placement options
- (iii)
-
Long-term placement options (which may include Long Bay Hospital, Forensic Hospital, or another mental health facility)
- (b)
-
Timeliness of placement options and interim placement options.
Special hearing: in a special hearing, the person is taken to have pleaded not guilty. The purpose is to ensure acquittal unless an offence is proved to the criminal standard: Pt 4, Div 3.
[4-325] Forms of orders for referrals to the Mental Health Review Tribunal under State law
Orders — fitness
I find the accused unfit to be tried and that they may become fit to be tried within twelve months.
In accordance with s 49 Mental Health and Cognitive Impairment Forensic Provisions Act 2020, I refer this matter to the Mental Health Review Tribunal.
I direct the court registry to provide the following documentation to the Tribunal:
- 1.
-
a copy of this finding
- 2.
-
a copy of any orders made for detention or bail
- 3.
-
a transcript of these proceedings
- 4.
-
a copy of any psychiatric reports tendered to the court during these proceedings
- 5.
-
a copy of any additional reports tendered as evidence to the court pertaining the person’s fitness to stand trial, and
- 6.
-
the police fact sheet (if available).
[4-327] Documentation required in referral of court matters to Mental Health Review Tribunal
The Tribunal reviews forensic patients under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 including where the court finds:
-
the accused is unfit to be tried or is unfit but may become fit within 12 months
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the accused is guilty on the limited evidence available and subject to a limiting term, and
-
the act constituting the offence is proven but the accused is not criminally responsible
Where a person has been referred to the MHRT by the court, the Tribunal requires a copy of:
-
the order of the court finding the person unfit
-
the indictment (or court attendance notices for defendants not yet committed for trial)
-
the transcript of the court proceedings
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the judgment of the court finding the person unfit
-
any psychiatric reports tendered during the fitness proceedings
-
any additional reports tendered as evidence to the court pertaining to the person’s fitness to stand trial,
-
the police facts, agreed facts or the Crown Case Statement (if available),
-
any victim impacts statements (if relevant).
[4-330] Extension orders
Sections 121 and 122 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 empower the Supreme Court to make an order extending a person’s status as a forensic patient where there is a high degree of probability that—
- (a)
-
the forensic patient poses an unacceptable risk of causing serious harm to others if the patient ceases to be a forensic patient, and
- (b)
-
the risk cannot be adequately managed by other less restrictive means.
See AG (NSW) v Bragg (Preliminary) [2021] NSWSC 439 at [25]–[28] and AG (NSW) v Wright (by his tutor Johnson) (Preliminary) [2022] NSWSC 537 at [21]–[25] for interpretation of the terms “high degree of probability”, “serious harm” and “unacceptable risk”. See also, guidance on assessing whether the risk can be managed by other less restrictive means: AG (NSW) v Bragg (Preliminary) at [29] and AG (NSW) v Wright (by his tutor Johnson) (Preliminary) at [26]–[31].
The matters to consider when determining whether to make the order are set out in s 127(2) and include the safety of the community, and reports from registered psychologists, psychiatrists, or registered medical practitioners. If, following the preliminary hearing, the court is satisfied the matters alleged in the documentation supporting the application would, if proved, justify the making of an extension order, the court must make orders appointing two qualified psychiatrists, or two registered psychologists, or two registered medical practitioners, or any combination of two persons aforementioned, to conduct separate examinations of the forensic patient and to give reports to the court, and direct the forensic patient to attend those examinations: s 126(5). Whether the making of an extension order would be “justified” depends, in part, upon s 122, which governs when an extension order can be made: AG (NSW) v Bragg (Preliminary) at [23].
Sections 130 and 131 allow the Supreme Court to make interim extension orders. The court’s task is not to assess the matters alleged in the documentation or to attempt to predict what would be the result on the final hearing of the matter: AG (NSW) v Wright (by his tutor Johnson) (Preliminary) at [18]. The words “would … justify the making” of an interim order in ss 126(5) and 130(b) impose a lower standard than that which applies to the making of the final order itself. There is only a requirement to be satisfied the making of a final order would be justified, in the sense of being reasonably open, in the light of the matters alleged in the supporting documentation, assuming them to be proved: AG (NSW) v Bragg (Preliminary) at [31]; AG (NSW) v Wright (by his tutor Johnson) (Preliminary) at [32].
[4-331] Suggested direction — the nature of special hearing
The appropriate directions to be given to a jury determining a special hearing were considered in Subramaniam v The Queen [2004] HCA 51 in respect of the identical predecessor provision, s 21(4) Mental Health (Forensic Provisions) Act 1990.
The High Court held that directions given in that case were inadequate and the court drafted an appropriate direction to assist trial judges — it was acknowledged that precisely what was to be said to the jury would need adaption to the particular facts but gave the following guide as to what should be said:
The court [or Mental Health Review Tribunal where s 80 applies] has found that the accused is unfit to be tried on the present charge(s) in the normal way because [he/she] does not have the mental [and/or cognitive] capacity to understand the basic requirements of a fair and just trial. Consequently, the law requires the accused be tried under a special procedure.
The accused’s unfitness for a normal trial may or may not be apparent to you as the trial proceeds. That is because unfitness for trial, may arise for any one or more of several reasons. [He/she] may not understand the nature of the charge against [him/her], or be able to decide whether [he/she] has a defence to it. [He/she] may not be able to make a rational decision about whether [he/she] is guilty or not guilty, or how to plead to the charge. [He/she] may not be able to understand generally the nature of the criminal proceedings and what their course and outcome may mean to [him/her]. The unfitness may be an unfitness to give [his/her] lawyers instructions about what [his/her] defence is or how the prosecution evidence is wrong, or should be questioned, or it may be an inability to apply [himself/herself] to the proceedings in an informed or constructive way. Whether or not any one of these matters is apparent to you, you must accept that the accused is unfit to be tried in a normal way because the law insists an accused have the mental capacity to do all of these things.
How then is this special hearing to be conducted and in what ways does it differ from a normal criminal trial? Well, it could be different in one or more of the ways to which I have referred, that is, in the way in which [the accused] is able or unable to participate or contribute to [his/her] defence. In every criminal trial an accused may or may not choose to give evidence. That remains so in a special hearing such as this, but an unfit person may not be capable of making a reasoned decision about that, or indeed other matters concerning the hearing. At a special hearing the accused is taken to have pleaded not guilty to the charges against [him/her], unlike in a normal trial when they may enter a plea of either guilty or not guilty. The law is intended to ensure a special hearing does not prejudice the accused any more than [his/her] unfitness already may do. [He/she] may raise, or have raised on [his/her] behalf whatever defences a fit person could raise in a normal trial. [He/she] may, or may not, give evidence. [He/she] must, however have legal representation and may not, as some mentally [and/or cognitively] fit accused persons do, choose to represent [himself/herself].
What are the purposes of a special hearing? The first is to see that justice is done, as best it can be in the circumstances, to the accused and the prosecution. [He/she] is put on trial so that the case against [him/her] can be determined. The prosecution representing the community has an interest also in seeing that justice be done. A special hearing gives the accused an opportunity of being found not guilty, in which case the charge ceases to hang over [his/her] head, and if [he/she] requires further treatment it may be given to [him/her] outside the criminal justice system.
You also need to keep in mind that you will have to reach your verdict based on the limited evidence available. There are various ways evidence at a hearing of this nature may be limited. For example, the accused may be unable to give evidence, or unable to give adequate instructions to [his/her] lawyers about which witnesses might be called to assist [his/her] case, or, as to matters on which cross-examination could be based.
The next matter I must explain to you concerns the verdicts you may give in this case. Those verdicts are “not guilty”, “special verdict of act proven but not criminally responsible” or “the accused committed the offence/s based on the limited evidence available”.
If you find the accused not guilty then that is the end of the matter and [he/she] will be free to go. If, however, you find that on the limited evidence available [he/she] did commit the offence(/s), it is my duty to decide whether, had [he/she] been fit to be tried in a normal way, and been convicted, [he/she] would have been sentenced to a term of imprisonment, and if so the appropriate term. If I take the view a term of imprisonment would not have been appropriate, I may impose another penalty just as I might in the case of a person fit to be tried, such as a fine, a community correction order or a community release order.
If I nominate a term of imprisonment the accused is referred to the Mental Health Review Tribunal, to decide whether [he/she] is still suffering from a mental health [and/or cognitive] impairment and whether [he/she] should be detained in [a mental health facility] for treatment. If the accused should become fit to be tried before the period equivalent to any term of imprisonment I might nominate expires, the accused may be tried in the normal way for the offence. But this would be a matter for the prosecuting authorities to decide.
Finally, if you return a special verdict of act proven but not criminally responsible, it will be my duty to decide whether the accused will be held in custody or released, either with or without conditions. I will only release [him/her] if I am satisfied it will not seriously endanger [his/her] safety or the safety of any member of the public. If the accused is not released unconditionally, [he/she] will be referred to the Mental Health Review Tribunal which may make an order about [his/her] detention, care, treatment or release. Again, the Tribunal will not release the accused unless satisfied [his/her] safety and the safety of the public will not be seriously endangered.
I should emphasise that although I am telling you about the legal and practical consequences of any verdict you may reach in order for you to understand the nature of the special proceeding in which we are engaged, your duty is confined to deciding whether, on the limited evidence available, the prosecution has proved beyond reasonable doubt that the accused committed the offence(s) charged. The consequences of the verdict and what happens to the accused afterwards are matters for the Mental Health Review Tribunal, the prosecuting authorities and the court, not for you.
[4-333] Additional references
See also:
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M Ierace, “Introducing the new Mental Health and Cognitive Impairment Forensic Provisions Act 2020” (2021) 33(2) JOB 15.
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Second Reading Speech, Mental Health and Cognitive Impairment Forensic Provisions Bill 2020, NSW, Legislative Council, Debates, 16 June 2020, p 51.