Unfitness to stand trial

Unfitness to stand trial will be the subject of a major international conference to be held at AUT University on Monday 9 and Tuesday 10 October 2017.

The conference, entitled “Perils and Portents of Unfitness to Stand Trial: International and Comparative Perspectives”, will be jointly hosted by the Centre for Non-Adversarial Justice at AUT and the Australian and New Zealand Association of Psychiatry, Psychology and the Law (ANZAPPL).

Unfitness to stand trial is a defence, or typically a pre-trial procedure, which has long recognised that, given the specific mental incapacities of an accused person, it would be wrong to subject that person to a criminal trial.

However, simply stating the broad principle is not matched by the complexities – legal, clinical and social – that arise when attempting to put rules governing trial competence, or lack thereof, into practice.

For much of the 20th century, the rules governing unfitness to stand trial were largely unused in New Zealand.

However, since the enactment of major legislative reforms in 2003, there has been a significant revival in the utilisation of the fitness rules. This has been driven in part by the legislative changes which recognised, amongst other things, the distinct needs of intellectually disabled defendants, as well as the demands of an active criminal bar seeking new ways of challenging criminal prosecutions.

Regardless of the reasons for the much higher profile that unfitness to stand trial now has, it is a matter that is increasingly engaging the attention of judges at every level of the court hierarchy.

Recent court decisions have addressed such diverse concerns as:

  • the admissibility of confessions at an “evidential sufficiency” hearing under section 9 of the Criminal Procedure (Mentally Impaired Persons) Act 2003;
  • the status of delusions in assessing fitness to stand trial;
  • whether the test for unfitness includes an assessment of a defendant’s decisional competence; and
  • the meaning of “mental impairment” as the gateway into the unfitness to stand trial procedure.

These and many other issues have confronted judges as they have sought to apply the statutory test for unfitness to stand trial to ensure justice in individual cases.

In other jurisdictions, debate has focused on such questions as whether the traditional common law test for fitness to stand trial (articulated in R v Pritchard [1836] 7 C & P 303) is any longer fit for purpose, and whether judges should be able to consider the ability of an accused to make rational decisions, as opposed to the need for decisions to be rational.

In the UK and Canada, the issue has been raised, and is now being deliberated by policy-makers, as to whether there should be a separate test for fitness to plead guilty, to reflect the fact that some defendants may possess sufficient mental capacity to plead guilty to a simple charge, but may lack the capacity to undergo a complex, defended criminal trial.

These are difficult issues that require careful analysis and debate, in order to forge a model standard of unfitness to stand trial that is able to respond to the developing complexity of offenders’ mental health needs and the demands of an increasingly complex criminal justice system.

The upcoming conference will comprise keynote addresses and two panel sessions with input from leading scholars and clinicians from New Zealand and abroad. The organisers have been successful in securing the participation of leading international authorities on unfitness to stand trial, including:

  • Professor Richard Bonnie from University of Virginia – the architect of the “decisional competence” construct;
  • Professor Ronnie Mackay – England’s leading academic authority on mental state defences;
  • Professor Gerry Ferguson – a leading Canadian mental health academic; and
  • Professors Ian Freckelton and Bernadette McSherry – Australia’s foremost authorities on unfitness to stand trial.

In addition, the conference will benefit from input by leading New Zealand clinicians including:

  • Dr Jeremy Skipworth – Clinical Director of Auckland’s Mason Clinic;
  • Dr Hinemoa Elder – one of New Zealand’s most prominent adolescent psychiatrists; and
  • Dr Suzanna Every-Palmer – a leading forensic psychiatrist.

It is expected that the conference will be of particular interest to legal practitioners and clinicians regularly engaged in unfitness to stand trial determinations, as well as other professionals wanting to acquire a deeper understanding of theory and practice in this domain, informed by the insights of experts from other comparable jurisdictions.

The conference will also see the announcement of the recipient for the inaugural Kayes Fletcher Walker Visiting Scholar programme.

For any practitioners interested in attending the conference, registration details are accessible through the webpage for the Centre for Non-Adversarial Justice at https://naj.aut.ac.nz. For further information, please contact Professor Warren Brookbanks at warren.brookbanks@aut.ac.nz.


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