Fitness to Stand Trial: A Recap
Researched and drafted by WAJA’s Advocacy Team.
Previously, we discussed the Fitness to Stand Trial in this article. A person found mentally not fit to stand trial due to mental illness, mental impairment, or impaired comprehension may either be released or detained indefinitely under the Criminal Law (Mentally Impaired Accused) Act 1996 (WA). The CLMIA Act allows people to be detained for a longer period than they would have spent in prison if they were found guilty.
WHAT’S BEEN HAPPENING?
In 2016, then Opposition Leader Mark McGowan promised to reform the CLMIA legislation within one year of forming government. Five years later, the McGowan Government has not taken any action to reform this problematic legislation.
This issue is not limited to Western Australia; fitness to stand trial reform is required at a national level. In March 2022, a 39-year-old Victorian woman with a significant mental impairment had spent 18 months in a maximum-security women’s prison locked in solitary confinement for up to 23 hours a day. The judge in her case said she may have only been sentenced to a month in prison if she had pleaded guilty and been sentenced.
The Mentally Impaired Accused Review Board
The Mentally Impaired Accused Review Board, (MIARB) is an arm of the Prisoners Review Board that can recommend a person be released from custody. However, the final decision is made by the Attorney General, which turns a justice issue into a political one.
Justice Jeremy Curthoys of the Supreme Court has been appointed chairperson of the Prisoners Review Board of Western Australia, as well as chairperson of the MIARB. Justice Curthoys has significant experience in criminal law and sentencing: a crucial component in ensuring justice for people suffering from mental impairment.
WHY DOES THE LAW NEED TO BE REFORMED?
In 2016, the United Nations found that the WA Government had breached its responsibilities under the UN Convention on the Rights of Persons with Disabilities and recommended law reform. In the same year, a WA Government review of the Act also recommended changes but did not call for an end to indefinite detention.
There are currently no limits on the amount of time a person can stay in custody, and constraints remain on the circumstances in which judges can order community-based custody.
This results in fewer opportunities and avenues for appeal than for those deemed fit to stand trial, as well as fewer opportunities for their custody status to be reviewed.
As a result, people who are deemed mentally unfit to stand trial under the Act can remain in custody longer than they would have if found guilty of the crime.
WHAT HAPPENS NEXT?
Legislation to reform the CLMIA Act is expected to be tabled in Parliament very soon. WAJA will monitor the progress of the legislation and will continue to comment further over the debate and implementation period.
WAJA’s Panel Justice Delayed is Justice Denied is happening TOMORROW (27 October)! Get your tickets if you have not already. It will be a highly informative and engaging night, so bring your friends, family and an open mind!
References
Alicia Bridges, ‘Mark McGowan's promise to stop jailing mentally impaired people indefinitely still unfulfilled’, ABC News (online 17 May 2022) <https://www.abc.net.au/news/2022-05-17/mentally-impaired-custody-reforms-go-unfulfilled-by-mark-mcgowan/101061754>.
Adeshola Ore, ‘Calls for people with mental impairment to get more protections in Victoria’s justice system’, The Guardian (online, 28 March 2022) <https://www.theguardian.com/australia-news/2022/mar/28/calls-for-people-with-mental-impairment-to-get-more-protections-in-victorias-justice-system>.
Emma Ryan, ‘Supreme Court Judge appointed chair of Prisoners Review Board’ LawyersWeekly (online, 27 September 2022) <https://www.lawyersweekly.com.au/biglaw/35593-supreme-court-judge-appointed-chair-of-prisoners-review-board>.
Nico Bucci and Christopher Knaus, ‘More than 1,200 people are detained indefinitely in Australia with no criminal conviction’ The Guardian (online, 12 August 2022) <https://www.theguardian.com/society/2022/aug/12/more-than-1200-people-are-detained-indefinitely-in-australia-with-no-criminal-conviction>.