The Local Court and Unfitness

Published by Geoff Harrison | 12 May 2025

The issue of whether the Local Court, which does not have inherent jurisdiction, has the power to conduct a fitness hearing under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 was considered by Donnelly LCM in the case of R v Cameron. His Honour considered a number of cases, including R v Mailes, which held that there is no authority in a magistrate to conduct fitness hearings. It was also noted by His Honour that Parliament have excluded the Local Court from applying the statutory provisions and procedures dealing with fitness - this was in reference to s35 of the Act and that the Local Court has different powers of disposition when it comes to mental health: Mackie v Hunt. His Honour noted, "DPP v Mawas at [62]-[63], that a court can consider a diversionary order notwithstanding that a defendant may be unfit to stand trial or enter a plea". Hence, a magistrate may divert a defendant under ss 12 and 14 of the Act, “whether or not that person was unfit to be tried and without first determining that that was the situation,” per M Campbell J in Mackie v Hunt (1989) 19 NSWLR 130 at 134.

Other Sources:

• The Public Defenders - Applying the Amended Mental Health (Forensic Provisions) Act 1990

• The Public Defenders - Practitioners Guide for Mental Health

• Criminal Trial Courts Bench Book: Procedures for fitness to be tried (including special hearings)

• Intellectual Disability Rights Service: A Step-By-Step Guide to Section 32 Applications

• Section 14 - Mental Health and Cognitive Impairment Forensic Provisions Act 2020

Cases:

• R v Cameron [2024] NSWLC 12

• Ebatarinja v Deland [1998] HCA 62

• R v Mailes [2001] NSWCCA 155

• Director of Public Prosecutions v Sami El Mawas [2006] NSWCA 154

• Mantell v Molyneux [2006] NSWSC 955

• Director of Public Prosecutions v Johanes Shirvanian [1999] NSWSC 53

• Mackie v Hunt (1989) 19 NSWLR 130

• R v Presser [1958] VR 45

Extracted Legislation:

MENTAL HEALTH AND COGNITIVE IMPAIRMENT FORENSIC PROVISIONS ACT 2020 - SECT 35

Application of Part

This Part applies to criminal proceedings in the Supreme Court (including criminal proceedings within the summary jurisdiction of the Supreme Court) and the District Court.

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 a 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.