This article was written by Samira Ashkar - Senior Associate - Sydney

Samira holds a Bachelor of Laws and a Bachelor of Science (Psychology) from the University of Wollongong. She also has a Masters of Dispute Resolution from the University of Technology Sydney and has completed a Graduate Diploma in Legal Practice. Samira is admitted as a solicitor in New South Wales but is also highly experienced in Australian federal law areas...

Fitness for Trial (NSW)


The Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW)   was assented to in June 2020 and will replace the previous Mental Health (Forensic Provisions) Act 1990 (NSW). The new act will change the way the court system deals with defendants who have a mental health or cognitive impairment with the result that there is a question about their fitness for trial.

What is fitness for trial?

When a person is fit for trial this means they are capable of participating fully in the court process. This includes:

The enquiry into a person’s fitness to plead and stand trial concerns their mental condition at the time of the trial, not their mental condition at the time of the offence.

Anyone involved in the proceedings can question the defendant’s fitness to plead. This may be the defendant themselves, the prosecution or the court.

The issue of a person’s fitness to plead and stand trial can also be raised on more than one occasion.

The main question that will need to be asked by the court when a person with a mental or cognitive impairment is set to face trial is whether the defendant has the mental capacity to comprehend and fairly participate in the trial process.

The new statutory test of fitness for trial

The new Act establishes a statutory equivalent of the Presser test. The Presser test is the common law test for determining whether a person is fit to stand trial.  This test enables the court—in a non-adversarial way—to look at whether a person can understand a trial, instruct lawyers and decide on a defence, among other things. The Presser test is an accepted way for courts to ascertain a person’s fitness for trial.

The changes to NSW law make these considerations from the Presser test explicit in a statutory test which states a person will be unfit to be tried if, because the person has a mental health impairment or a cognitive impairment, they cannot:

  • Understand the offence
  • Plead to the charge
  • Understand the general nature of the proceedings as an inquiry as to whether the person committed the offence
  • Make a defence or answer to the charge.

Part 4 of the Act deals with fitness for trial in the Supreme Court (including criminal proceedings within the summary jurisdiction of the Supreme Court) and the District Court.

Finding of unfitness by court

The Act also establishes new processes following a finding of unfitness. Currently, when a court finds a person unfit to be tried the defendant is referred to the tribunal. The tribunal also has a role in determining the defendant’s fitness to be tried and considers the likelihood of the person becoming fit to be tried within 12 months—that is, whether the person can be treated or supported to bring about fitness for trial. This means that even people with untreatable cognitive impairment such as dementia are referred to the tribunal for review, with their trial delayed for up to 12 months.

The new provisions remove unnecessary delay by enabling a court to decide firstly, whether a person is unfit for trial and secondly, whether a person may become fit for trial sometime in the future. This means that only individuals who may become fit for trial are referred to the tribunal. The removal of this delay removes unnecessary distress to the defendant and to victims of the defendant, as well as needless use of the resources of the tribunal.

Those unlikely to become fit for trial will be tried as soon as possible through the special hearings process, pending approval by the Director of Prosecutions. Special hearings are modified criminal trials that are held by the District Court or the Supreme Court when a person is not fit for trial. Special hearings are to occur as soon as practicable following advice from the Director of Public Prosecutions that they are to continue to prosecute, notwithstanding that the defendant is unfit to be tried.

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

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If you suspect that you may be under investigation, or if you have been charged with an offence, it is vital to get competent legal advice as early as possible. Our lawyers are highly specialised in criminal law and will be able to guide you through the process while dealing with the various authorities related to your matter.

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