Unfitness

[4-300] Introduction

The issue of whether a person is unfit to plead or to stand trial is discussed in Kesavarajah v The Queen (1994) 181 CLR 230 which applied R v Presser [1958] VR 45. See also Eastman v The Queen (2000) 203 CLR 1 and the references to practice books at [4-310].

See also Procedure for fitness to be tried and mental illness cases at [4-325]ff.

[4-310] Procedure

(a) 

State offence

“Procedure for fitness to be tried and mental illness cases” at [4-325]ff provides a detailed checklist and procedural information where unfitness is raised, and appropriate orders under the Mental Health (Forensic Provisions) Act 1990 (NSW).

Generally, the procedure to be adopted where the question of the accused’s fitness to stand trial arises is to be found in Pt 2 Mental Health (Forensic Provisions) Act.

If the issue arises it is to be determined by the judge alone: s 11(1). The judge is to give reasons for the determination including “the principles of law applied” and “the findings of fact”: s 11(2).

Generally: see Criminal Practice and Procedure NSW at [17- 2105]ff; Criminal Law (NSW) at [MHFPA.10.20].

(b) 

Federal offence

The procedure to be adopted where the question of an accused’s fitness to stand trial arises is to be found in Pt 1B Div 6 Crimes Act (Cth) 1914.

In R v Baladjam [No13] (2008) 77 NSWLR 630, it was held that the issue of the fitness of an accused charged with a Federal offence was to be determined by a judge in accordance with s 11 Mental Health (Forensic Provisions) Act without infringing s 80 of the Constitution.

Generally: see Criminal Practice and Procedure NSW [17-12001]ff; Federal Criminal Law at [6-1130]ff.

[4-315] Forms of orders for referrals to the Mental Health Review Tribunal under State law

[4-320] Documentation required in referral of court matters to Mental Health Review Tribunal

The following guidelines have been provided by the Mental Health Review Tribunal.

The Tribunal is required to review forensic patients under the Mental Health (Forensic Provisions) Act. This includes people found by the court to be:

  • unfit to be tried

  • guilty on the limited evidence available and subject to a limiting term, and

  • not guilty by reason of mental illness of an offence.

Fitness proceedings — referral from court to Mental Health Review Tribunal under s 14 Mental Health (Forensic Provisions) Act

Where a person has been found unfit to be tried by the court, the Tribunal requires:

1. 

a copy of the order of the court finding the person unfit

2. 

a copy of the transcript of the court proceedings

3. 

a copy of any psychiatric reports tendered to the court during the fitness proceedings

4. 

a copy of any additional reports tendered as evidence to the court pertaining the person’s fitness to stand trial, and

5. 

the police fact sheet (if available).