A COUPLE of cases are unfolding in our local courts concerning a very important issue in the law of criminal justice. When a person is brought to court to face a serious criminal charge, can he legally be tried right away or must the court first make an assessment whether he is fit to plead or not?
On July 15, the Kuala Kubu Baru magistrate’s court heard evidence pertaining to a psychiatric evaluation of a religious teacher accused of killing his lover in May. Judge Zulhelmy Hassan, who presided at the hearing, was told that as a result of a full psychiatric evaluation, the accused, Abdul Raof Mohd Dimyati (26 years old) is found fit to plead.
Raof was admitted to Hospital Bahagia Ulu Kinta Hospital, Tanjung Rambutan, Perak, for a psychic evaluation on May 20, the day after he was charged under Section 302 of the Penal Code with causing the death of his lover, Nor Salina Nazir, a 34 year-old mother of four. The victim’s body was found in a Proton Wira (with multiple stab wounds) at an open field near Sekolah Rendah Agama Kuala Kubu Baru, at 8.30pm on May 5. Following the discovery of the body, the accused was arrested on May 6, and detained for questioning by the police. The case has not gone to trial yet. Another mention date (Aug 12, 2015) has been fixed for the case.
In another recent case, Tan Boa Jia, 32, charged with burying her son’s body in the kitchen floor of her rented home, is reportedly still in Bahagia Hospital for a psychiatric evaluation. On June 12, 2015, Tan and her husband, Loo Chon Wen, 33, were charged after their 9 year old son’s body was found buried under the floor of a rented house in Kepong. Loo was charged with murder under Section 302 of the Penal Code, while Tan was charged under Section 201 for causing the disappearance of evidence. Tan’s lawyer had asked for a psychiatric evaluation to be carried out on her. According to media reports, the court has fixed Sept 8, 2015 for another mention of the case. Like Raof’s case, this case has not gone to trial yet.
Criteria of fitness to plead
In common law jurisdictions, “fitness to plead” refers to the capacity of the accused (defendant in a criminal proceeding) to comprehend the course of those proceedings — in short, to face trial.
In the United Kingdom, the law on fitness to plead is based on the decision of Baron Alderson in R v Pritchard (1836) 7 C&P 303 and the earlier case of R v Dyson (1831) 7 C&P 305. In R v Dyson, the accused was charged with the murder of her illegitimate child. She was deaf and dumb. Although she was able to plead “not guilty” through an interpreter by using sign language, she was found to be insane and detained indefinitely. In R v Pritchard, the accused was also deaf and was unable to communicate by speech. In assessing a person’s fitness to plead, Alderson says an accused will be deemed unfit to plead if he is unable either:
TO understand the nature of the proceedings so as to make a proper defence on his own behalf;
TO know that he can challenge any jurors to whom he may object; and,
TO comprehend the evidence against him.
The test in R v Pritchard was extended by R v Davies (1853) CLC 326. This case concerned an elderly man who might have been experiencing a psychotic illness. He was charged with murder and when he was asked to enter a plea, he was silent and then responded in a confused manner. The case resulted in an additional criterion being added to the existing Pritchard test — the accused must be capable of properly instructing his or her counsel in order to conduct a proper defence for him.
The law relating to fitness to plead was reviewed in 2003 in the case of R v John (M) [2003] EWCA Crim 3452. In this case, the issue of unfitness to plead was raised by the accused because he suffered from an impairment of his short-term memory, a condition known as anterograde amnesia. At the trial stage, the judge found him fit to plead, and the defence appealed on the ground that the trial judge had misdirected the jury in relation to the Pritchard test. The appeal was rejected.
In his direction to the jury, the trial judge said the accused must be capable of carrying out six tasks if he were to be found fit to stand trial. If, on the balance of probabilities, the jury determined that any one of the six tasks was beyond the capabilities of the accused, then the accused must be found to be unfit to plead. The six tasks were:
UNDERSTANDING the charges preferred against him;
DECIDING whether to plead guilty or not guilty;
EXERCISING his right to challenge jurors;
INSTRUCTING solicitors and counsel;
FOLLOWING the course of proceedings; and,
GIVING evidence in his own defence.
In Malaysia, the issue of unfitness to plead was raised in Junaidi bin Bambang v Public Prosecutor (Rayuan Jenayah No. C-05-41-2005) by the defence, but was rejected by the trial judge. On appeal, the Court of Appeal held that the trial judge had made a correct decision and the appeal was dismissed.
In some jurisdictions, a special law has been enacted, such as the UK Criminal Procedure (Insanity and Unfitness to Plead) Act 1991). In New Zealand, the corresponding position is found in the NZ Criminal Procedure (Mentally Impaired Persons) Act 2003.
The issue of unfitness to plead should not be confused with the defence of insanity. The unfitness of an accused person to plead relates to his mental state at the commencement of his criminal trial, whilst the defence of insanity concerns the accused’s “mental state” at the time of the commission of the offence.
The fitness to plead concerns the accused’s competence to stand trial, which the trial court must decide at the commencement of the trial. In contrast, the defence of insanity concerns the accused’s guilt or otherwise in committing the offence, which the trial court must decide at the conclusion of the trial. If the defence succeeds, the accused is found “Not guilty by reason of insanity” (NGRI); he will be hospitalised, rather than incarcerated. That verdict has been favoured by a majority of states, instead of the verdict “Guilty but mentally ill” (GBMI).
The writer formerly served in the Attorney-General’s Chambers before he left for private practice, the corporate sector and then academia