Where a court determines that the accused is unfit to be tried, it conducts a special hearing: ss 19 and 21 Mental Health (Forensic Provisions) Act 1990 (NSW). The procedure for a special hearing is contained in the Mental Health (Forensic Provisions) Act and only applies to State offences: see s 19ff. “Procedure for fitness to be tried and mental illness cases” at [4-325]ff provides important procedural information about unfitness and special hearings including orders under the Mental Health (Forensic Provisions) Act.
For procedures in relation to Commonwealth offences: see Pt 1B Div 6, ss 20B–20BI Crimes Act 1914 (Cth).
The section references below are to the Mental Health (Forensic Provisions) Act.
A special hearing is to be determined by judge alone unless an election for a jury is made by the accused, a legal practitioner representing the accused, or the prosecutor: s 21A.
See generally: Criminal Practice and Procedure NSW at [17-2180]ff; Criminal Law (NSW) at [MHFPA.21A.20].
A special hearing is to be conducted as early as possible as if it were a trial of criminal proceedings: s 21(1).
The verdicts available at a special hearing include “not guilty of the offence charged”; “not guilty on the ground of mental illness”; “that, on the limited evidence available, the accused person committed the offence charged”, or an available alternative offence: s 22(1).
If the court finds that the accused committed the offence charged, or an alternative, and the court would have imposed a sentence of imprisonment, it must nominate a limiting term, see s 23 and generally: the Table at [10-715]; Criminal Practice and Procedure NSW at [17-2210.1]; and Criminal Law (NSW) at [MHFPA.23.20].
For the procedures (including orders) following the fixing of a limiting term: see s 24 and the Table at [10-715].
If the verdict is not guilty on the grounds of mental illness or simply not guilty, the person is thereafter to be dealt with in the same manner as if such a verdict had been given in a normal trial: ss 25 and 26.
[4-160] Suggested direction — to jury on nature of special hearing
The appropriate directions to be given to a jury determining a special hearing in accordance with s 24(4) were considered in Subramaniam v The Queen (2004) 79 ALJR 116. 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:
A Tribunal set up under an Act of Parliament has found that this accused is unfit to be tried on the present charge(s) in the normal way because in one or more respects [the accused] does not have the mental capacity to meet all of the basic requirements of a fair and just trial. Consequently, the law of this State requires that [the accused] be tried under a special procedure. The special procedure has been laid down by Parliament in an Act with which the court, which means all of us, including you the jury, must comply.
[His/her] unfitness for a normal trial may or may not be apparent to you as the trial proceeds. That is because unfitness for trial, which is an inability on the part of an accused person, to meet a minimum standard of mental capacity to be tried fairly, 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 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, that is, to tell them adequately what [his/her] defence is, or in what respects the prosecution evidence is erroneous, or should be questioned and tested, or an inability to apply [himself/herself] to the proceedings in an informed or constructive way. It may be that none of these matters will actually be apparent to you. But whether they are or not, you must accept that in one or more ways, of which these are only possible examples, this accused is unfit mentally to be tried in a normal way because for that to occur the law insists that an accused have the mental capacity to do all of these things.
How then, you may ask, is this special hearing to be conducted? In what ways will it be different 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 person may or may not choose to give evidence. That remains so in a special hearing such as this one, 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] person is taken to have pleaded not guilty to the charges against [him/her], unlike in a normal trial in which an accused may enter a plea of either guilty or not guilty. The Act of Parliament that I mentioned before is intended to ensure that a special hearing 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 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] person and the prosecution. [He/she] is put on trial so that a determination can be made of the case against [him/her]. The prosecution representing the community has an interest also in seeing that justice be done. A special hearing gives an accused person an opportunity of being found not guilty, in which event the charge will cease to hang over [his/her] head, and if [he/she] requires further treatment that it may be given to [him/her] outside the criminal justice system.
Members of the jury, you also need to keep in mind that you will have to reach your verdict on what the Act describes as the limited evidence available. There are various ways in which evidence at a hearing of this nature may be limited. An accused, for example, may be unable to give evidence, or unable, by reason of [his/her] mental unfitness to give adequate instructions to [his/her] lawyers concerning the calling of witnesses who might assist [his/her] case, or, as to matters on which cross-examination could be based.
The next matter which I must explain to you concerns the verdicts which it is open to you to give in this case. In the present case, those verdicts are “not guilty of the offence” or “the accused person committed the offence” on each of the offences charged.
If you find [the accused] not guilty then that will be the end of the matter. [He/she] will be free and subject to no further criminal process of any kind in respect of the events giving rise to the charge. If however, you find that on the limited evidence available [he/she] did commit the offence or offences charged, it will be 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 subjected to a term of imprisonment, and if [he/she] would have been, what term would have been appropriate. If however, I were to take the view that 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 or a community service order, or a bond.
In the event that I were to nominate as appropriate a term of imprisonment it would then be for a special Tribunal, the Mental Health Review Tribunal, to decide whether [the accused] is still suffering from a mental illness and whether [he/she] should be detained in [a mental health facility] for treatment. [His/her] case would then come back to the court to decide whether an order should be made for [his/her] detention in [a mental health facility] or otherwise. It is also possible that [the accused] could be tried in the normal way for the offence if [he/she] should become fit to be so tried before the period equivalent to any term of imprisonment I might nominate expires. But this would be a matter for the prosecuting authorities to decide.
I should emphasise that although I am telling you about the legal and practical consequences of any verdict that 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 is to happen to [the accused] thereafter are matters for the Mental Health Review Tribunal, the prosecuting authorities and the court, not for you.