Fitness to Plead – Best Interests Versus Autonomy: Does a Defendant's Paranoia Matter?

Abstract

In the Solicitor-General v Dougherty [2012] NZCA 405 the New Zealand Court of Appeal has reviewed the relevance of a “best interests” component in determining unfitness to stand trial. The respondent, convicted on multiple counts of Goods and Services Tax (GST) fraud, had developed a delusion that he was being persecuted by the Inland Revenue Department, leading the trial judge to conclude that he could not, for that reason, give adequate instructions to his lawyers. He was found unfit to stand trial. On an appeal by way of case stated, the Court of Appeal characterized the legal issue as being whether “decisional competence” was part of the fitness assessment. In deciding that it was not, the Court affirmed existing law represented in R v Power CA187/96, 22 October 1996, to the effect that a high threshold of fitness, including a “best interests” component, would derogate from the fundamental principle that accused persons are entitled to choose their defences and present them as they choose. It concluded that there was no statutory support for a change in relation to decisional competence in New Zealand, and did not consider the Courts should implement one.