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Fitness For Trial (NSW)

In order to be dealt with by a court for a criminal offence, a person must be fit for trial. This means that they must be able to understand the nature of proceedings and participate in proceedings to a reasonable extent. This page deals with fitness for trial in New South Wales.


When a person’s fitness for trial is in question in New South Wales, a determination must be made under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020. This Act outlines how an accused person’s fitness for trial is assessed and how criminal matters are handled when fitness for trial is in question.

What is fitness for trial?

If a person is deemed “fit for trial” or “fit to plead,” it means they have the ability to understand and engage in the legal proceedings. This includes comprehending court procedures, giving instructions to lawyers, presenting evidence, understanding the charges, entering a plea, and determining whether they committed the offence.

The issue of a defendant’s fitness for trial can be brought up by the defendant themselves, the prosecution, or the court. Under section 37 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020, this issue can be raised multiple times and at any point during the legal process.

When an individual with a mental or cognitive impairment is facing trial, the primary question that must be asked is whether they possess the mental capacity to fully comprehend and participate in the trial process in a just manner.

Fitness for trial vs mental impairment defence

It’s important to note that the issue of fitness for trial is distinct from the defence of mental impairment. However, in some cases, both issues may need to be addressed.

A defence of mental impairment argues that the accused is not guilty of the offence because they were affected by a mental illness, intellectual handicap, or other mental impairment at the time of the alleged offence and as such could not understand or control their actions. This defence can succeed even if the accused is no longer mentally impaired by the time of the trial.

On the other hand, the issue of fitness to plead pertains to the mental capacity of the accused at the time of the trial itself. Their mental capacity at the time of the alleged offence is not relevant.

The test for fitness for trial

Section 36 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 outlines the criteria for determining whether an individual is fit for trial. To be considered fit for trial, the person must be able to comprehend the charges, enter a plea, understand the general nature of the legal proceedings as an inquiry into their potential guilt, and provide a defence or response to the charge. It’s not necessary for the person to fully comprehend all technical aspects of the trial, only its general nature and the matters at hand.

The question of fitness for trial is to be decided on the balance of probabilities, as per section 38 of the Act.

Accused persons who are not fit for trial

Once a person is found unfit for trial, the court must determine if they could potentially become fit for trial within a year. If so, the case will be referred to the Mental Health Review Tribunal, which will provide care and treatment for the person, which could involve detention. The court proceedings will be postponed until a future date when the person is fit to stand trial.

If it’s unlikely the person will ever become fit for trial, they will be subject to a special hearing, which is a modified criminal trial. The purpose of this hearing is to determine whether the person committed the physical components of the offence and if any legal defences apply.

If the person is found guilty, the court will estimate the sentence that would have been imposed if they had been fit for trial. The court may then release the person unconditionally or refer them to the Tribunal for orders relating to their detention, care, and treatment.

If the person is not a danger to themselves or others, they may be released with or without conditions. However, if they are deemed a danger, they will remain detained until they are no longer a threat. The Tribunal will review the person’s status every six months.

If you require legal advice or representation in any legal matter, please contact Armstrong Legal.

Fernanda Dahlstrom

This article was written by Fernanda Dahlstrom

Fernanda Dahlstrom has a Bachelor of Laws, a Bachelor of Arts and a Graduate Diploma in Legal Practice. She has also completed a Master’s in Writing and Literature. Fernanda practised law for eight years, working in criminal defence, child protection and domestic violence law in the Northern Territory and in family law in Queensland.

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