The consequences of being found unfit to plead in the Northern Territory have been the subject of controversy for some time. Despite provisions in the Criminal Code Act and the Mental Health and Related Services Act that seek to ensure offenders who suffer from mental impairments are dealt with appropriately, many such persons are kept in prison on an indefinite basis because of a lack of appropriate facilities at which to supervise and treat them.
Fitness to plead
In the Northern Territory, a person may be found unfit to plead if they suffer from a physical or mental incapacity. If that is the case, no plea can be taken and the trial cannot proceed. This can occur at the court’s instigation or after the enquiries of either defence or prosecution.
Section 43J of the Criminal Code Act provides that a person is unfit to stand trial if they are:
- Unable to understand the nature of the charge;
- Unable to plead to the charge;
- Unable to understand the nature of the trial;
- Unable to understand the course of the proceedings;
- Unable to understand he effect of evidence adduced;
- Unable to give instructions to their lawyer.
However a person is not unfit for trial simply because they suffer from memory loss.
If the defence and prosecution are in agreement that the accused is unfit to plead, the court an record a finding that they are unfit to stand trial without conducting an investigation.
Procedure if accused is unfit to plead
If the accused is found to be unfit to plead, the court must consider whether there is a reasonable prospect that he or she might be fit to stand trial within 12 months. If there is such a prospect, the court must adjourn the matter for a period of not more than 12 months.
If it is not likely the accused will be fit to plead within 12 months, the court must hold a special hearing. At a special hearing, the court will determine whether the person is not guilty of the offence, not guilty because of mental impairment, or committed the offence charged or an alternative offence. The court may then order:
- the person be subject to supervision;
- the person be released unconditionally.
A supervision order may be custodial or non-custodial. A custodial supervision order must only be made if there is no practical alternative. A supervision order is for an indefinite term. However, an application can be made to the court to revoke a supervision order by the Director of Public Prosecutions, the supervised person, a person having the custody, care and control of the supervised person, or any other interested person.
The defence of mental impairment
If a person is fit to plead, but was mentally impaired at the time the offence occurred, they can argue the defence of mental impairment. A person can be acquitted on the basis of mental impairment if they can show that at the time of the offence, they were suffering from a mental impairment and as a consequence:
- Did not know the nature or quality of the conduct;
- Did not know that the conduct was wrong; or
- Was not able to control his or her actions.
There is a presumption that a person charged with an offence was not suffering from a mental impairment. If the defence raises mental impairment as a defence, it bears the onus of proving on the balance of probabilities that a mental impairment existed. The defence of mental impairment may also be raised by the court at its own initiative or by the court on application by the prosecution.
When a person in the Northern Territory is found to be unfit to plead or not guilty because of mental impairment, they are often housed for a long period in the prison as the NT does not have a secure psychiatric facility.
The president of the Criminal Lawyers Association of the NT (CLANT) has slammed the practice of holding such persons in prison, saying that the NT needs ‘better facilities outside the prison so that no person is simply in prison for being sick or mentally unwell or physically or mentally disabled.’ As at February 2019 there are reported to be 13 people who have either been found unfit to plead or not guilty by reason of mental impairment in prison in the territory.
According to CLANT president Marty Aust, accused persons who could argue the defence of mental impairment sometimes opt to plead guilty in the territory because of the prospect of indefinite detention in prison following an acquittal. Prisons are ill equipped to deal with persons with severe mental illness and trauma workers have called for an inquiry into how many people are being held in carceral facilities who should not be.
The problem has been recognised by numerous current and former NT judges. The NT Attorney-General Natasha Fyles says the government is assessing any reform that may be required.
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