Legal Principles

1. Legal Principles • Essentially a test of fairness • “It is a cardinal rule of our law that no man can be tried for a crime unless he is in a mental condition to defend himself” Humphries J in R v Dashwood (1943)

2. The Test for UnfitnessR v Presser [1958] VR 45 • Smith J outlined seven minimum standards that the accused would need to equal ‘before he can be tried without unfairness or injustice to him’ • Be able to understand what it is he is charged with • Be able to plead to the charge • Be able to exercise his right of challenge of jurors • Understand generally the nature of proceedings – that it is an inquiry as to whether he did what he is charged with • Follow the course of proceedings so as to understand what is going on in court in a general sense, though he need not understand the purpose of all the various court formalities

3. The Test for UnfitnessR v Presser [1958] VR 45 • Be able to understand the substantial effect of any evidence that may be given against him • Be able to make his defence or answer to the charge – this rule is further defined by the following considerations: • Where the accused has counsel, he or she needs to be able to do this through his or her counsel by giving any necessary instructions and be letting his counsel know what his or her version of the facts is and, if necessary, telling the court what it is • The accused need not be conversant with court procedure and he or she need not have the mental capacity to make an able defence, but he or she must have sufficient capacity to decide what defence he or she will rely upon • The accused must have sufficient capacity to be able to make his defence and his version of the facts known to the court and his counsel, if any

4. Legal Cases • R v Ngatayi • Test for fitness needs to be applied in a ‘common-sense fashion’ • ‘need not have the mental capacity to make an able defence or act wisely in his own best interests • Kesavarajah v The Queen • Should have regard to the length of the trial, given the accused’s fitness may vary from time to time throughout the trial • Eastman v R • Presence of a delusion does not in itself render the accused unfit • The presence of a mental disorder that influences his conduct, disrupts the ordinary flow of a trial or prevents him from having an amicable trusting relationship with counsel does not mean that the person is unfit to stand trial

5. Mental Illness Defence Sir Robert Peel

6. R v M’Naghten (1843) • Criminal law has long held that both the forbidden act (actus rea) and guilty intent (mens rea) need to be present in order to find a defendant guilty of a crime. • M’Naghten had been charged with the murder of Edward Drummond, the private secretary of the then Prime Minister Sir Robert Peel. • At his trial, he was found to be suffering from the delusion that the conservative party was persecuting him, and that his life was in danger. • He was acquitted on the grounds that he was: “not capable of distinguishing right from wrong with respect to the act which he stands charged”.

7. McNaghten’s Rules • The M’Naghten judgement led to considerable public alarm, including concern from Queen Victoria. • The Law Lords formulated the M’Naghten’s Rules: “To establish a defence on the grounds of insanity, it must be clearly proved that, at the time of the committing of the act, the party accused was labouring under such a defect of reason, from disease of the mind, as not to know the nature or quality of the act he was doing; or if he did know it, that he did not know he was doing what was wrong”. • must be proved by the defendant on the ‘balance of probabilities’, rather than the usual criminal trial test of ‘beyond reasonable doubt’.

8. McNaghten’s Rules • “Defect of reason from disease of the mind” This is a description of the mental state at the time the criminal act was committed for the defence to be considered. • “not to know the nature and quality of the act he was doing” A person does not know the nature and quality of his acts if he does not know the physical nature of what he is doing or the implication of it. • “he did not know that what he was doing was wrong” This has arm of the defence is also a cognitive element, and speaks to the individual’s ability to understand the moral or legal wrongfulness of the act.

9. R v Porter (1933) 55 CLR 182 • The defendant had apparently suffered a ‘mental breakdown’ following a recent separation from his wife. He had been without sleep, and according to his defence “appeared to have lost all control of his emotions”. • The accused had administered strychnine to his eleven month old son, and had then attempted to take strychnine himself, but had been interrupted by the entrance of the police. • The child died, leading to a charge of murder. • His defence was that he was insane at the time he committed the act.

10. Dixon J (Porter Test) “He was quite incapable of appreciating the wrongfulness of the act…if through a disease or defect or disorder of the mind he could not think rationally of the reasons which to ordinary people make the act right or wrong. If through the disordered condition of the mind, he could not reason about the matter with a moderate degree of sense and composure, it may be said that he could not know that what he was doing was wrong”.