Lawyers' experiences with fitness to plead to summary offences
| Author | Betheli Lin O'Carroll |
| Published date | 01 June 2016 |
| Date | 01 June 2016 |
| DOI | http://doi.org/10.1177/0004865815570678 |
| Subject Matter | Articles |
Australian & New Zealand
Journal of Criminology
2016, Vol. 49(2) 221–239
!The Author(s) 2015
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DOI: 10.1177/0004865815570678
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Article
Lawyers’ experiences
with fitness to plead to
summary offences
Betheli Lin O’Carroll
TC Beirne School of Law, University of Queensland,
Brisbane, Australia
Abstract
In a number of Australian jurisdictions the approach to the determination of fitness to plead
to summary offences is very unclear. The Queensland Court of Appeal has discussed the issue
that in Queensland there is no general legislation that deals with deciding if a person charged
with a summary offence is fit to plead. This article reports on a study that was conducted to
examine legal practitioners’ experiences with the issue of fitness to plead to summary
offences in Queensland. This article examines the fitness to plead to summary offences
literature, presents and discusses some of the key findings from the study and offers sugges-
tions for law reform. The themes examined in this article are legal practitioners’ experiences
and opinions on the legislative gap, what participants believe are the effects and consequences
of not having legislation in this area and participants’ recommendations for law reform. This
research has relevance beyond Queensland as it is highly likely that this is an issue in other
Australian jurisdictions.
Keywords
Fitness to plead, fit for trial, intellectual disability, Queensland criminal law, summary offences
Introduction
There are gaps in the fitness to plead to summary offences laws in a number of
Australian jurisdictions. In Queensland and four other Australian jurisdictions there is
no legislation that gives magistrates the power to decide if a defendant is fit to plead or to
refer summary charges
1
to a jury or the Mental Health Court, except in limited circum-
stances.
2
‘Fit to plead’ is often used interchangeably with the term ‘fit for trial,’ which is
defined in the Queensland Mental Health Act schedule as ‘fit to plead at the person’s trial
and to instruct counsel and endure the person’s trial, with serious adverse consequences
to the person’s mental condition unlikely’. This paper will focus on summary offences,
which include simple and regulatory offences such as shoplifting, trespass, public
Corresponding author:
Betheli Lin O’Carroll, TC Beirne School of Law, University of Queensland, Australia.
Email: betheli.ocarroll@uqconnect.edu.au
drunkenness, begging and public nuisance (Queensland Regulatory Offences Act,s5;
Summary Offences Act, ss 6, 8, 10, 11).
The gap in fitness to plead to summary offences laws was discussed by the Queensland
Court of Appeal in 2010 in the case of R v AAM; ex parte A-G (Qld), where the
summary convictions of a person who was unfit to plead were set aside ([13]). The
Court was of the opinion that it was unsatisfactory that Queensland does not have
any legislation providing for deciding whether a person is fit to plead to summary
charges and suggested law reform be considered (R v AAM; ex parte A-G (Qld) [9]).
3
There is similarly a lack of legislative clarity in determining fitness to plead to summary
offences in Victoria, the Northern Territory,
4
New South Wales and the
Commonwealth,
5
although New South Wales and the Commonwealth have legislation
that gives magistrates diversionary powers when a person has a mental illness or an
intellectual or developmental disability (Mental Health (Forensic Provisions) Act,
s 32(1); Crimes Act, s 20BQ(1)). In the other Australian jurisdictions, there are legislative
provisions that provide magistrates with the power to decide whether a person is fit to
plead to a summary offence.
6
A gap in the legislative response may be of particular concern given that Australia
may be breaching its international human rights obligations by not providing persons
who are unfit to plead with a fair trial. Specifically, article 13(1) of the Convention on the
Rights of Persons with Disabilities provides that ‘[s]tates Parties shall ensure effective
access to justice for persons with disabilities...’, while article 14(1) of the International
Covenant on Civil and Political Rights and article 10 of the Universal Declaration of
Human Rights state that everyone has the right to a fair hearing.
It is likely that there are many people charged with summary offences in Queensland
who are unfit to plead, although it is not possible to accurately quantify the number of
people that might be affected. A study found that 3.5% of participating defendants in
the New South Wales magistrates court had an intellectual disability (Vanny, Levy,
Greenberg, & Hayes, 2009, p. 294). One of the participants in this study estimated
that in a five-year period, the Queensland Office of the Adult Guardian dealt with
between five and six hundred clients who were unfit to plead and charged with a sum-
mary offence. These statistics demonstrate that this issue could be affecting a large
number of people in Australia and therefore requires prompt consideration.
This article discusses some of the key results of a qualitative study conducted to
investigate the issues surrounding fitness to plead to summary offences in the
Queensland criminal justice system. It is highly likely that the problems facing
Queensland in this area are also occurring in Victoria, the Northern Territory,
New South Wales and the Commonwealth. Consequently, this article has relevance
beyond Queensland, and the key findings from the study may be useful in assessing
the issue in other jurisdictions. Even if the Queensland Parliament reforms their legis-
lation in the near future, as the recent Review of the Queensland Mental Health Act has
suggested (Queensland Health, 2014, p. 17), this study has continued relevance as it
appears to also be an issue in Victoria, the Northern Territory, New South Wales and
the Commonwealth. This study was undertaken because it appeared that the procedures
surrounding the determination of fitness to plead to summary offences were uncertain
and there was a real risk that some people are pleading guilty or being found guilty of
summary offences when they are unfit to plead.
222 Australian & New Zealand Journal of Criminology 49(2)
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