top of page
Search
  • Writer's pictureGeoff Harrison

Fitness Inquiry


Criminal Barrister, Criminal Solicitor, Criminal Lawyer, Fitness Inquiry, Fitness hearing

Published by Geoff Harrison | 19 November 2023


The Presser test is the common law test as to whether a person is fit to stand trial or not and outlines a number of considerations that should be taken into consideration. The test is now codified within s36 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 ('the Act'). The test essentially looks at the accused's ability to both understand and participate in the trial process. After an inquiry into the defendant's fitness, if the court finds that the defendant is unfit to be tried the court must also determine if the accused may become fit within the next 12 months to be tried (s47 of the Act). If the court is notified by the Mental Health Review Tribunal (tribunal) that the accused will not become fit within the next 12 months, then the accused is to be dealt with under Division 3 of the Act ie. a special hearing. At a special hearing, a trial is run as close as normal as possible, and a special verdict of act proven but not criminally responsible can be brought in. Upon a special verdict, the judge can impose a limiting term which is the best estimate of the sentence that the court would have imposed in normal circumstances. Upon a limiting term being imposed the offender is referred to the the tribunal (s65 of the Act).


Other Sources:

Cases:


Extracted Legislation:


MENTAL HEALTH AND COGNITIVE IMPAIRMENT FORENSIC PROVISIONS ACT 2020 - SECT 36

Fitness test


(1) For the purposes of proceedings to which this Part applies, a person is taken to be unfit to be tried for an offence if the person, because the person has a mental health impairment or cognitive impairment, or both, or for another reason, cannot do one or more of the following--

(a) understand the offence the subject of the proceedings,

(b) plead to the charge,

(c) exercise the right to challenge jurors,

(d) understand generally the nature of the proceedings as an inquiry into whether the person committed the offence with which the person is charged,

(e) follow the course of the proceedings so as to understand what is going on in a general sense,

(f) understand the substantial effect of any evidence given against the person,

(g) make a defence or answer to the charge,

(h) instruct the person's legal representative so as to mount a defence and provide the person's version of the facts to that legal representative and to the court if necessary,

(i) decide what defence the person will rely on and make that decision known to the person's legal representative and the court.


(2) This section does not limit the grounds on which a court may consider a person to be unfit to be tried for an offence.


MENTAL HEALTH AND COGNITIVE IMPAIRMENT FORENSIC PROVISIONS ACT 2020 - SECT 37

When question of unfitness may be raised


(1) The question of a defendant's unfitness to be tried for an offence is, so far as practicable, to be raised before the defendant is arraigned on a charge in respect of the offence but may be raised at any time during the course of the hearing of the proceedings in respect of the offence.


(2) The question of a defendant's unfitness to be tried for an offence may be raised on more than one occasion in the same proceedings.


MENTAL HEALTH AND COGNITIVE IMPAIRMENT FORENSIC PROVISIONS ACT 2020 - SECT 38

Question of unfitness to be determined on balance of probabilities


The question of a defendant's unfitness to be tried for an offence is to be determined on the balance of probabilities.


MENTAL HEALTH AND COGNITIVE IMPAIRMENT FORENSIC PROVISIONS ACT 2020 - SECT 39

Court and other persons may raise question of unfitness


The court, the defendant or the prosecutor may raise the question of a defendant's unfitness to be tried for an offence.


MENTAL HEALTH AND COGNITIVE IMPAIRMENT FORENSIC PROVISIONS ACT 2020 - SECT 61

Special verdict of act proven but not criminally responsible because of mental health impairment or cognitive impairment


(1) A special verdict of act proven but not criminally responsible at a special hearing is taken for all purposes to be a verdict reached at an ordinary trial of criminal proceedings.


(2) Without limiting subsection (1), the court may make any order or take any action in respect of the defendant that a court could make on reaching the same verdict under Part 3.



MENTAL HEALTH AND COGNITIVE IMPAIRMENT FORENSIC PROVISIONS ACT 2020 - SECT 63

Penalties after finding of guilt


(1) Application of section This section applies if a court finds at a special hearing that on the limited evidence available the defendant committed the offence charged or an offence available as an alternative to the offence charged.


(2) Limiting terms If the court would have imposed a sentence of imprisonment for the offence if the special hearing had been an ordinary trial of criminal proceedings and the person had been fit to be tried for the offence, the court must nominate a term (a

"limiting term" ) that is the best estimate of the sentence that the court would have imposed on the defendant in those circumstances.


(3) Other penalties and orders If the court determines that it would not have imposed a sentence of imprisonment, the court may impose any other penalty or make any order it might have imposed or made if the defendant had been found guilty of the offence in an ordinary trial of criminal proceedings.


(4) The penalty or order is to be subject to appeal in the same manner as a penalty or order in an ordinary trial of criminal proceedings.


(5) Factors for consideration in determining penalty Without limiting subsection (2) or (3), in determining a limiting term or other penalty, the court--

(a) must take into account that, because of the defendant's mental health impairment or cognitive impairment, or both, the person may not be able to demonstrate mitigating factors for sentencing or make a guilty plea for the purposes of obtaining a sentencing discount, and

(b) may apply a discount of a kind that represents part or all of the sentencing discounts that are capable of applying to a sentence because of those factors or a guilty plea, and

(c) must take into account periods of the defendant's custody or detention before, during and after the special hearing that related to the offence.


(6) Notice to Tribunal where no limiting term imposed If the court indicates that it would not have imposed a sentence of imprisonment in respect of a defendant, the court must notify the Tribunal that a limiting term is not to be nominated in respect of the person.


MENTAL HEALTH AND COGNITIVE IMPAIRMENT FORENSIC PROVISIONS ACT 2020 - SECT 65

Referral to Tribunal after limiting term imposed


(1) The court must refer the defendant to the Tribunal if it nominates a limiting term for the defendant and must notify the Tribunal of orders it makes under this section.


(2) The court 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.


CRIMINAL PROCEDURE ACT 1986 - SECT 93

Committal for trial where unfitness to be tried raised


(1) The Magistrate may commit an accused person for trial for an offence if--

(a) the question of the person's unfitness to be tried for the offence is raised by the accused person, the prosecutor or the Magistrate, and

(b) if the question is raised by the accused person or the prosecutor, the Magistrate is satisfied that it has been raised in good faith.


(2) The question of the person's unfitness to be tried for an offence may be raised at any time in the committal proceedings.


(3) The Magistrate may require a psychiatric or other report relating to the accused person to be supplied to the Magistrate by the accused person or the prosecutor before committing a person for trial under this section.


CRIMINAL PROCEDURE ACT 1986 - SECT 94

Committal may take place after charge certification


The Magistrate may commit an accused person for trial under this Division only--


(a) if the charge certificate has been filed under Division 4 and a case conference is not required to be held in the committal proceedings, or

(b) if the charge certificate has been filed under Division 4 and a case conference has not yet been held in the committal proceedings, or

(c) if the case conference certificate for the proceedings has been filed in the committal proceedings.



17 views0 comments

Recent Posts

See All

Comments

Rated 0 out of 5 stars.
No ratings yet

Add a rating
bottom of page