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Fitness to Plead and Stand Trial

If you are “fit to be tried”, It means you are capable of participating fully in the court process. This includes:

  • understanding the court process;
  • being able to give instructions to your lawyers;
  • giving evidence in court;
  • understanding what you are charged with;
  • being able to plead to the charge; and
  • understand that the proceedings is for the purpose of determining whether you committed the offence you are charged with.

The inquiry into your fitness to plead and stand trial concerns your mental condition at the time of the trial, not your mental condition at the time of the offence.

Anyone to the proceedings can question your fitness to plead: you, the prosecution or the court. The issue of your fitness to plead and stand trial can be raised on more than one occasion.

What happens if I am appearing before the District or Supreme Court and may not be fit to stand trial?

You should raise the issue to the court at the earliest opportunity. After the issue is raised the court will conduct an inquiry as soon as practical into the question of your fitness to be tried for the offence. However, the court will only conduct the inquiry if it appears that the question of fitness was raised in good faith.

Although rare, the court may also choose not to conduct an inquiry and may dismiss the charge and order that you be released if the court thinks it is inappropriate to punish an accused criminally, taking into consideration:

  • the trivial nature of the charge or offence;
  • the nature of your disability; or
  • any other matter which the court thinks fit.

What can I expect if the question is raised before arraignment?

If the question arises before arraignment, the court must determine whether an inquiry should be conducted before the hearing of the proceedings in respect of the offence. If the court determines that an inquiry should be conducted then it must conduct the inquiry as soon as practicable.

However, the court may also come to the view that there is no need to conduct an inquiry. In this instance the proceedings will continue.

What can I expect if the question is raised after arraignment?

If the question of fitness arises after arraignment, the court must adjourn the trial, and in the absence of any jury, hear any submissions relating to the conduct of an inquiry.

Even if the question of your fitness to stand trial was previously raised, and you were found fit, if the question re-emerges in good faith during the trial the court must adjourn the proceedings, no matter how inconvenient or disruptive it may be.

What happens before the inquiry?

Depending on the stage in the proceedings the issue of fitness is raised, the court may do any one or more of the following:

  • adjourn the proceedings;
  • grant you bail;
  • remand you in custody for a period not exceeding 28 days;
  • request that you undergo a psychiatric examination or other examination;
  • request that a psychiatric report or other report relating to you be obtained;
  • discharge any jury constituted for the purpose of the proceedings; and
  • make any other order the court considers appropriate.

What happens during the inquiry?

The inquiry into your fitness will be conducted before a judge alone. The inquiry is an inquisitorial process rather than an adversarial one. This means the court can look at evidence and take opinions that normally would not be admissible in a hearing.

In addition, unless the court otherwise allows, you must be represented by an Australian legal practitioner.

What next?

If you are found fit, then the trial will continue.

If you are found unfit, you will be referred to the Mental Health Review Tribunal. They will determine whether you will become fit within 12 months from the date of the initial findings of unfit.

What happens if I am found to be unfit within 12 months?

The Mental Health Review Tribunal will notify the Director of Public Prosecutions. This will lead to one of two outcomes:

  • the court will most likely hold a “special hearing”; or
  • if the prosecution decides to not take any further action against you then you will be released.

What is a special hearing?

A special hearing is held as close as possible to a criminal trial. The court will find you not guilty unless the prosecution can show that even on the limited evidence, you committed the crimes. At the special hearing you are assumed to have pleaded not guilty.

Unless the Court otherwise allows, you must be represented by an Australian legal practitioner and the fact that you have been found unfit to be tried for an offence is presumed not to be an impediment to your representation.

During a special hearing your lawyer may exercise your rights to challenge the juror or jury. You may also raise any defence that could be raised if the special hearing was an ordinary criminal trial, as well as give evidence.

This hearing is usually conducted by a judge alone, unless an election is made for a jury trial. If you elect for a jury trial, at the end of the special hearing the court must explain the following to the jury:

  • the fact that you are unfit to be tried in accordance with normal procedures;
  • the meaning of unfitness to be tried;
  • the purpose of the special hearing;
  • the verdicts which are available; and
  • the legal and practical consequences of their verdicts.

What are the available verdicts from a special hearing?

The verdicts that are available to the jury or the court at a special hearing include:

  • not guilty of the offence charged;
  • not guilty on the ground of mental illness;
  • that on the limited evidence available, you committed the offence charged; or
  • on the limited evidence available, you committed an offence available as an alternative to the offence charged.

What if I am found guilty during a special hearing?

If you are found guilty during a special hearing the verdict constitutes a qualified finding of guilt and does not constitute a basis in law for any conviction for the offence to which the finding relates.

A verdict from a special hearing also constitutes a bar to further prosecution in respect of the same circumstances, and is subject to appeal in the same manner as a verdict in an ordinary trial of criminal proceedings. The conviction will also enable the victim of the offence in respect of which the verdict is given to make a claim for compensation should the victim chooses to.

You will be referred back to court for sentencing. The court will impose the sentence it would have if you were found guilty in a normal trial. If the normal sentence is imprisonment then the court must nominate a “limiting term”.

What is a limiting term?

A limiting term is the courts best estimate of the sentence that would have been ordered if the case went to normal trial. However, the limiting term can be longer than the sentence that would have been imposed had the matter proceeded normally.

Will I go to jail then?

You will either be held in a mental health facility or jail.

After a limiting term is determined, the Mental Health Review Tribunal will have to determine whether you are suffering from mental illness and notify the court of their findings.

Based on the Mental Health Review Tribunal’s findings the court can either order you to be held in a mental health facility or jail.

When will the Mental Heath Review Tribunal review my case? And what will the Mental Health Review Tribunal consider?

The tribunal must review your case as soon as possible after the court decides on a limiting term, and then every six months after.

After each review, the Mental Health Review Tribunal may make any of the following orders:

  • that you require continued detention, care or treatment;
  • that you can be released conditionally; or
  • that you can be released unconditionally.

They will only order for you to be released if they are satisfied that:

  • you do not pose a safety risk to yourself or others;
  • will not be endangered; and
  • less restrictive care is appropriate and reasonably available; or
  • the current restrictive care imposed is no longer necessary.

The factors that the tribunal can take into consideration when determining what order to make include:

  • whether you are suffering from a mental condition or illness;
  • whether there are reasonable grounds for the tribunal to believe that care, treatment or control of you is necessary for your own safety as well as the safety of others;
  • the likelihood of your mental illness to deteriorate;
  • if release being considered, a report on your condition and whether your own safety or that of the general public will be required. The report must be by a forensic psychiatrist or person of a class that is prescribed by the regulations, who is not currently involved in treating you;
  • if you have been given a limiting term, consideration will be given to whether you have spent sufficient time in custody.

If I am unfit how long will I be detained for?

The limiting term sentence is to ensure that you are not forgotten in the system and result in being detained indefinitely.

For advice or representation in any legal matter, contact Armstrong Legal.

Michelle Makela

This article was written by Michelle Makela

Michelle has over 15 years experience in the legal industry, working across commercial litigation, criminal law, family law and estate planning.  Michelle has been involved in all practice areas of the firm and in her personal practice has had experience in litigation at all levels (State and Federal Industrial Tribunals, the Supreme Court, Court of Appeal, the Federal Court, Federal...

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