Fitness to Plead and Stand Trial: Mental Health Applications

This article written by our mental health defence lawyers is a guide. For tailored advice, get in touch with our Sydney office.

The common law (case law) in Australia guarantees an accused person a fair trial according to law without unfairness. One aspect of that guarantee is that a criminal trial cannot proceed unless he or she is fit to plead or fit to stand trial. A person facing criminal charges is presumed fit to stand trial at law unless there is evidence or information to suggest otherwise. It can come from the defendant’s lawyers or prosecutor, or from the defendant him/herself.

‘Fit to stand trial’ focuses on a defendant’s capacity to plead to the charge and comprehend the criminal proceedings so that he or she can make a proper defence. This includes to be able to understand generally the nature of the proceedings or charges, to understand what is going on, and be able to give instructions to and a version of events to his or her lawyer. Not being able to do these basic requirement whether due to mental infirmity or otherwise will amount to unfairness thereby causing a criminal trial not to proceed unless fit to stand trial according to law. This is the common law position which was outlined by Justice Smith in the often cited case of R v Presser [1958] VR 45.

If you are a defendant arguing unfit to stand trial in the local court, then the common law (ie Presser’s case) will apply to help you to try to get discharged by having the charges dismissed or a permanent stay on the case, putting it to a stop.

If you are a defendant arguing unfit to stand trial for more serious charges that are going to be or being dealt with in the higher courts such as District or Supreme Court, then Part 4 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) will apply to help navigate you through the process.

A person does not have to be suffering from a mental infirmity in order to be ‘unfit to stand trial’. For example, a person can be unfit to stand trial if he or she is mute and deaf.

What Remedies are Available if I am Unfit to Stand Trial?

The remedies available if unfit to stand trial in NSW depends on whether the charges are being dealt with in the Local Court or a higher court such as District or Supreme.

In the Local Court: A local court Magistrate presiding over a case involving a criminal charge against a defendant can discharge the defendant dismissing the charges or permanently stay the proceedings putting it to a stop if the defendant is found to be unfit to stand trial. This applies to cases involving summary offences/charges or indictable offences dealt with summarily in the local court.

Alternatively, the local court Magistrate can dismiss the case discharging the defendant under a section 14 (section 32) order due to mental health.

In the District or Supreme Court: A District Court or Supreme Court Judge presiding over a case involving criminal charges against a defendant who is unfit to stand trial is guided by Part 4 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020. As a result, the defendant can be acquittal following a special hearing, or following a special hearing, it is found that the defendant committed the offence in which case he or she will be referred to the Mental Health Tribunal as a forensic patient. more on this is explained in this article.

The Test to Determine If You Are Unfit to be Tried for an Offence

An accused person will be ‘unfit’ to stand trial for an offence if, due to his or her mental health impairment or cognitive impairment, or for another reason, any one or more of the following non-exhaustive factors apply under section 36:

• Cannot understand the offence,
• Cannot plead guilty or not guilty to the charge,
• Cannot exercise the right to challenge jurors,
• Cannot understand generally the nature of the proceedings as an inquiry into whether he or she committed the offence with which he or she is charged
• Cannot follow the course of the proceedings so as to understand what is going on in a general sense,
• Cannot understand the substantial effect of any evidence given against him or her,
• Cannot make a defence or answer to a charge,
• Cannot instruct his or her lawyer so as to mount a defence and provide a version of the facts to that lawyer and to the court if necessary,
• Cannot decide what defence he or she will rely on and make that decision known to his or her lawyer and the court.

In addition to the above, in determining whether an accused person is unfit to stand trial for an offence, the court must consider under section 44(5):

• Whether the trial process can be modified, or assistance provided, to help the defendant’s understanding and effective participation in the trial,
• The likely duration and complexity of the trial,
• Whether a lawyer is representing the accused person or a lawyer can be obtained to represent him or her in the case.

The above test is a reflection of the test outlined in the case of R v Presser.

The rest of this article applies only to District or Supreme Court criminal proceedings involving indictable or strictly indictable offences that are not dealt with in the Local Courts.

What Stage in the Case Can you Raise Unfitness to Stand Trial?

A defendant can raise unfitness to stand trial for an offence anytime before being ‘arraigned’ on the charge, or at any time of the hearing in court, according to section 37.

Procedure in Court for Unfitness Proceedings

Once the question of the defendant being unfit to be tried is raised by the court, prosecutor or defence, the Judge must decide whether to have an inquiry.

What is an inquiry? In an inquiry, the court must determine whether or not the defendant is unfit to be tried.

An inquiry must be held as soon as possible after the question of unfitness is raised, and it must not be made unless the unfitness issue has been raised in good faith.

What if the Judge decides not to hold an inquiry? The Judge can decide not to hold an inquiry, dismiss the charges and order that the defendant be released if of the opinion that it’s inappropriate to inflict any punishment, having considered any of the following:

• Trivial nature of the charge or offence,
• Nature of the mental health impairment or cognitive impairment,
• Any other matter the court thinks proper to consider.

What Happens to the Defendant Pending Inquiry?

The Judge can make orders he or she thinks is appropriate after the question of unfitness is raised and before the inquiry is held, including any of the following:

• Adjourn the case,
• Grant bail to the defendant,
• Remand the defendant in custody for up to 28 days,
• Order the defendant to undergo psychiatrist examination or other examination,
• Order for a psychiatrist report or other report,
• Discharge the jury

If Found Fit to be Tried

If the Judge finds a defendant fit to be tried for an offence after an inquiry is concluded, the Judge will recommence or continue the normal legal proceedings against the defendant who will have to face the trial in the normal way.

If Found Unfit to be Tried

If the Judge determines that a defendant is ‘unfit to be tried’ for an offence following an inquiry, the Judge must decide, on balance of probabilities, whether the defendant, within the next 12 months, may become fit to be tried or will not become fit to be tried.

In any event, after a finding that the defendant is unfit to be tried, the Judge can take any one or more of the following options:

• Discharge the jury,
• Adjourn the case to another date,
• Grant the defendant bail,
• Remand the defendant in custody,
• Make other orders considered appropriate.

If Court Finds You ‘May be Fit to be Tried’ Within 12 Months

If after a Judge finds a defendant unfit to be tried following an inquiry yet finds the defendant “may become fit to be tried” within the next 12 months, the defendant will be referred to the Mental Health Review Tribunal for review.

Following a Tribunal review, if the Tribunal determines that the defendant will be unfit to be tried in the next 12 months, the defendant will go through a ‘special hearing’ (explained further in this article).

Alternatively, following a Tribunal review, if the Tribunal determines that the defendant will be fit to be tried for an offence, the criminal proceedings against the defendant will simply continue the normal way.

However, despite the above alternatives, the DPP can decide to take no further proceedings in respect of the offence.

If Court Finds You are ‘Unfit to be Tried’ Within 12 Months: Special Hearings

If after a Judge finds a defendant unfit to be tried following an inquiry, and then finds the defendant will not, within the next 12 months, become fit to be tried, the defendant will then face a “special hearing” to ensure that he or she is acquitted unless it can be proved beyond reasonable doubt that, on the limited evidence available, the defendant committed the offence (or another offence available as an alternative to the offence charged).

A special hearing will be conducted if the court or tribunal makes a finding that the defendant will be unfit to be tried during the next 12 months.

The special hearing can also be modified to accommodate the defendant where practicable to help facilitate his or her participation. Even though the defendant is found unfit to be tried, the special hearing is to continue on the presumption that, it will not be an impediment to his or her representation.

The special hearing proceeds on the basis that the defendant has pleaded not guilty to the charge(s).

During the special hearing of the case, the defendant can be excused from attending court if the court thinks it appropriate in the circumstances and if the defendants or defendant’s lawyer(s) also agree to this course.

The special hearing is normally conducted by a judge alone trial. However, the defendant can elect to have the special hearing heard before a jury.

Following a special hearing against a defendant, the court will return any one of the following verdicts:

• Not guilty,
• Special verdict of act proven but not criminally responsible,
• On the limited evidence, the defendant committed the offence,
• On the limited evidence, the defendant committed an offence available as an alternative to the offence charged.

If a ‘not guilty’ verdict is returned in favour of the defendant following a special hearing, then he or she will be acquitted putting an end to the criminal proceedings.

If a special verdict of ‘act proven but not criminally responsible’ is returned following a special hearing, the court can take the course it normally does under a verdict of ‘act proven but not criminally responsible’. The defendant will then be referred to the Tribunal unless the court releases the defendant unconditionally.

If a verdict ‘on the limited evidence, the defendant committed the offence’ is returned following a special hearing, then this constitutes a finding of guilt, but does not amount to a conviction at law. The court can then impose any one of the following penalties against the defendant under section 63:

• If under normal circumstances, the court would have imposed an imprisonment sentence (if this would have been an ordinary criminal proceedings as someone fit to stand trial), the Judge will nominate a “limiting term” that is the best estimate of the sentence that the court would have imposed.
• If the court would nothave imposed an imprisonment sentence if the case was an ordinary criminal proceedings (as someone who is fit to stand trial), then the Judge will impose any of the usual available penalties as if there was a finding of guilt in an ordinary criminal trial.

What Happens if the Court Imposes a “Limiting Term”?

If a Judge imposes a “limiting term” against a defendant after a finding “on the limited evidence, the defendant committed the offence” following a special hearing, the Judge must refer the defendant to the Tribunal. In addition, the Judge may order that the defendant be detained in a mental health facility, correctional centre, detention centre or other place pending the review of the defendant by the Tribunal.

The court can also request a report by a forensic psychiatrist who is not currently involved in the treatment of the defendant. The purposes of the report would be to find out the defendant’s condition and whether his or her release is likely to seriously endanger the safety of the defendant or any member of the public. This helps the Judge to decide what orders to make about the defendant.

Once the defendant is referred to the Tribunal with a “limiting term” the defendant becomes a forensic patient. The Tribunal will then review the defendant as soon as practicable after a limiting term has been nominated by a court. Thereafter, the forensic patient will be reviewed every 6 months.

What happens at a Tribunal review? Upon review, the Tribunal can make orders as to the patient’s detention, care or treatment in a mental health facility, correctional centre, detention centre or other place, or the patient’s release (conditionally or unconditionally), under section 81.

If the Tribunal considers releasing the patient, it must comply with section 84 factors. This means that the Tribunal must not make an order releasing a forensic patient unless:

• Satisfied that the safetyof the patient or any member of the public will not be seriously endangered by the patient’s release, and
• Consideration has been given to whether or not other care of a less restrictive kind, consistent with safe and effective care, is appropriate and reasonably available, or that the patient does not require care; consideration of a forensic psychiatrist report outlining the patient’s condition and whether the safety of the patient or any member of the public will be seriously endangered by his or her release; and whether or not the patient has spent sufficient time in custody.

Additional matters that the Tribunal must consider includes those outlined in section 75, namely:

• Whether the patient has a mental health impairment or cognitive impairment,
• Whether there are reasonable grounds for believing that care, treatment or control of the person is necessary for his or her own protection from serious harm or the protection of others from serious harm,
• The patient’s continuing condition, including any likely deterioration in his or her condition and any likely effects of that deterioration.

Who Can Raise the Question of Unfitness?

Unfitness to stand trial can be raised not only by the defence but may also be raised by the court or the prosecutor, according to section 39.

Local Courts and Higher Courts

Part 4 of the Mental Health and Cognitive Impairment Forensic Provisions Act in NSW on fitness to stand trial only applies to District and Supreme Courts (involving charges which are more serious that are not being dealt with summarily). It does not apply to the Local Court (for less serious charges that are being dealt with summarily).

The Local Courts, when dealing with a defendant unfit to stand trial, can apply the common law powers to discharge a defendant, permanently stay proceedings or even discharge a defendant under section 14 or 32.

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