Unfitness to stand trial and the indefinite detention of persons with cognitive disabilities in Australia: human rights challenges and proposals for change.

• Jurisdiction: Australia
• Author: Gooding, Piers
• Date: 01 April 2017

CONTENTS I Introduction II Background: Unfitness to Stand Trial and the Demands of Human Rights A Laws that Govern Unfitness to Stand Trial B Disability and Disadvantage in the Criminal Law C Human Rights and the Demand for Equal Recognition before the Law III The Criteria for Unfitness to Stand Trial A The Test Fails to Consider Support to 'Optimise Fitness' B The Test Is Too Narrow C The Test Is Inherently Discriminatory IV Special Hearings and Other Procedures Following a Finding of Unfitness to Stand Trial A Availability of Special Hearings to Test the Case against the Accused B Standard of Proof C Qualified Verdicts D Defences V Disposition: Custodial Orders A 'Governor's Pleasure' Detention B Nominal Terms C Limiting Terms D Fixed Terms VI Discussion: Accessible Justice or Differential Treatment? VII Conclusion I INTRODUCTION

In 2015, a young Western Australian man, 'Jason', was reported to have been detained for over 11 years following a finding that he was unfit to stand trial for a charge of manslaughter. (1) The young man, who cannot be identified because he was 14 years old when he was charged, had allegedly crashed a stolen car that resulted in the death of his 12-year-old cousin. Jason entered juvenile detention in 2003 and later moved to adult prison, where he remains at the time of writing. An opposition legal affairs spokesman in Western 1 Australia reported that if Jason had been convicted and sentenced for his original charge, he could have expected to face a jail term of between four and eight years. (2)

Other cases also highlight the adverse consequences of Australia's laws relating to unfitness to stand trial. (3) In 2014, the Australian Human Rights Commission determined that the rights of two Indigenous men were violated multiple times while they were detained indefinitely in the Alice Springs Correctional Centre after being found unfit to stand trial. (4) Two years earlier, Rosie Anne Fulton was deemed unfit to stand trial following alleged driving offences, and spent 21 months detained in Kalgoorlie Prison. (5) Marlon James Noble was also found unfit to stand trial in Western Australia in relation to alleged sexual assaults. (6) In 2010, the alleged victims informed prosecutors Mr Noble had never assaulted them. (7) He was incarcerated for nearly a decade, (8) and remains on an indefinite, non-custodial supervision order at the time of writing. In late 2016, Mr Noble's case was heard by the United Nations Committee on the Rights of Persons with Disabilities ('CRPD Committee'). The CRPD Committee took account of 'the irreparable psychological effects that indefinite detention may have on the detained person' and considered 'that the indefinite detention to which [Mr Noble] was subjected amounts to inhuman and degrading treatment.' (9)

According to the Australian Law Reform Commission ('ALRC'), one of the justifications for unfitness to stand trial laws is that 'the integrity of a criminal trial (and, arguably, the criminal law itself) would be prejudiced if the defendant does not have the ability to understand and participate in a meaningful way.' (10) The unfitness to stand trial doctrine was largely incorporated into modern law as a humanistic measure to protect accused persons with disabilities, offer a mechanism to test the prosecution, and divert individuals to relevant treatment. In practice, however, findings of unfitness to stand trial can lead to 'extremely deleterious consequences', (11) to use Ian Freckelton and Hugh Selby's term, which includes indefinite detention of persons with cognitive disabilities for longer than if they had been convicted and sentenced following trial. (12) This risk may create an incentive for even innocent people 'to plead (or be advised to plead) guilty, in order to avoid the consequences of [a finding of] unfitness.' (13) Martin CJ of the Supreme Court of Western Australia, in an extra-judicial comment, observed that:

Lawyers do not invoke the legislation, even in cases in which it would be appropriate because of the concern that their client, might end up in detention, in custody, in prison, for a lot longer period than they would if they simply plead guilty to the charge brought before the court ... (14) Law reform initiatives at the Commonwealth, state and territory levels have brought attention to the issue, (15) and a Senate inquiry has been completed. (16) At the international level, Australia's unfitness to stand trial laws have been criticised by both the United Nations' Human Rights Council and its CRPD Committee. (17) The CRPD Committee, in its judgment on the case of Mr Noble, determined that he had been discriminated against on the basis of disability under West Australian law because he 'had no possibility and was not provided with adequate support or accommodation to exercise his rights to access to justice and a fair trial', (18) which constituted a violation of his right to equal recognition before the law. (19) Similar concerns have been raised domestically by the Australian Human Rights Commission. (20) However, there is a notable gap in legal scholarship on the practical and theoretical implications of reforming unfitness to stand trial laws according to international human rights law. (21)

The United Nations Convention on the Rights of Persons with Disabilities ('UNCRPD') (22) came into force on 3 May 2008 and bolstered calls to ensure procedural fairness and substantive equality for accused persons with disabilities in criminal law. The ALRC, in its major review on Equality, Capacity and Disability in Commonwealth Laws, recommended that laws on eligibility to stand trial be reformed in line with the UNCRPD. (23) A major concern raised by the ALRC was that people found unfit to stand trial 'will often find themselves in a situation where they are not able to exercise legal capacity, even when the circumstances surrounding the making of the order have changed.' (24) This concern relates to a potential violation of art 12 of the UNCRPD. Article 12 requires states parties to 'recognize that persons with disabilities enjoy legal capacity on an equal basis with others in all aspects of life', (25) and 'take appropriate measures to provide access by persons with disabilities to the support they may require in exercising their legal capacity.' (26) Related articles in the UNCRPD call for rights to access to justice on an equal basis with others, to enjoy liberty and security of the person, and to be free from cruel, inhuman or degrading treatment. (27) These provisions require formal procedural accommodations to make court proceedings accessible for accused persons with cognitive disabilities, (28) and to ensure dispositions are on an equal basis with others.

There are tensions between the demand of the UNCRPD for equal participation of persons with disabilities in legal processes, and unfitness to stand trial laws which create separate processes that operate in a 'protective' manner (29) (in part, to achieve substantive equality). This article will consider these tensions through a comparative analysis of laws on unfitness to stand trial throughout Australia, including consideration of national and international law reform trends in this area of law.

The article will be divided into four parts. Part II will consider the function and purpose of unfitness to stand trial laws, the broader disadvantage experienced by persons with disabilities in Australian criminal law, and the demands of international human rights law in this area of law Parts III, IV and V will consider the implications of the UNCRPD in the three main aspects of unfitness to stand trial laws:

1 the criteria for determining unfitness;

2 the 'special hearing' or alternative procedures following such determinations; and

3 the disposition of a person found unfit to stand trial.

Part VI argues that Australian laws governing unfitness to stand trial in their current form are incompatible with the UNCRPD. We will consider options for reform that would bring unfitness to stand trial laws into greater alignment with the UNCRPD and its demand for equal rights to procedural due process and substantive equality for persons with cognitive disabilities.

II BACKGROUND: UNFITNESS TO STAND TRIAL AND THE DEMANDS OF HUMAN RIGHTS

A Laws that Govern Unfitness to Stand Trial

The long-standing English doctrine of 'unfitness to plead' has been incorporated into every Australian jurisdiction, (30) as it has in most common law jurisdictions. While the law and procedures differ between jurisdictions, the key features are broadly consistent.

The requirement that a defendant be fit to be tried is applicable in all courts, including local courts and Magistrates' Courts. Legislative provisions for unfitness to stand trial rules tend to also apply to higher courts. In New South Wales, for example, the Mental Health (Forensic Provisions) Act 1990 (NSW) prescribes procedures that follow a finding of unfitness in the District Courts and Supreme Courts; the Act does not apply to the local courts. (31) Similarly, in Victoria the Magistrates' Court does not have jurisdiction to hear fitness cases, (32) and in the Northern Territory and Queensland fitness to stand trial regimes exclude the local courts. (33) However, in the Australian Capital Territory, South Australia, Tasmania and Western Australia, legislation sets out procedures and powers regarding unfitness to stand trial for both courts of summary jurisdiction and the higher courts. (34)

The legal test of a person's fitness to stand trial is effectively the same throughout Australia, and is drawn from the Victorian case of R v Presser ('Presser'). (35) The test was based on principles elucidated in the English case of R v Pritchard, (36) and requires that the accused be able to:

1 'understand the nature of the charge';

2 'plead to the charge and to exercise the right of challenge';

3 'understand the nature of the proceedings';

4...