Fitness to Plead/Fitness for Trial
Presumption of Fitness exists (s 26 Criminal Code).
Note distinction between concerns about fitness (which relate to the persons capacity to understand what is happening at the trial etc) and defences such as insanity or issues of capacity for children (which relate to the persons ability to understand their offending behaviour at the time of the offence).
Dual track system of fitness exists in Queensland. Concerns can be raised and referrals made to the Mental Health Court (this may occur early on in proceedings or even during a s590AA application (see s590AA(2)(i) Criminal Code); or alternatively the process in s 613 Criminal Code can be used. Either way, in determining whether a person is fit - the relevant test is set out in R v Presser [1958] VR 45. The Presser rules indicate that for someone to be fit to plead they need to be able to:understand the nature of the charge, be able to plead to the charge, and be able to exercise the right to challenge the empanelling of jurors. They must be able to understand the nature of proceedings and be able to follow the course of proceedings in a general sense, as well as understand the substantial effect of evidence led by the prosecution. Finally, defendants must have the capacity to make a defence or answer the charge, and, in represented, have the ability to instruct counsel.
Note distinction between concerns about fitness (which relate to the persons capacity to understand what is happening at the trial etc) and defences such as insanity or issues of capacity for children (which relate to the persons ability to understand their offending behaviour at the time of the offence).
Dual track system of fitness exists in Queensland. Concerns can be raised and referrals made to the Mental Health Court (this may occur early on in proceedings or even during a s590AA application (see s590AA(2)(i) Criminal Code); or alternatively the process in s 613 Criminal Code can be used. Either way, in determining whether a person is fit - the relevant test is set out in R v Presser [1958] VR 45. The Presser rules indicate that for someone to be fit to plead they need to be able to:understand the nature of the charge, be able to plead to the charge, and be able to exercise the right to challenge the empanelling of jurors. They must be able to understand the nature of proceedings and be able to follow the course of proceedings in a general sense, as well as understand the substantial effect of evidence led by the prosecution. Finally, defendants must have the capacity to make a defence or answer the charge, and, in represented, have the ability to instruct counsel.
Superior Court system - Criminal Code s 613
No underlying condition specified - fitness can be raised as an issue if for any reason it appears uncertain 'whether the person is capable of understanding the proceedings at trial, so as to be able to make a proper defence' (s 613).
Jury is empanelled and makes determination of fitness or otherwise. If found unfit - the Court can discharge the accused or make an order to detain the person. |
Mental Health Court system - Mental Health Act 2000 (Qld)
References can only be made to the Mental Health Court where there is reasonable cause to believe a person alleged to have committed an indictable offence is or was mentally ill at the time of committing the alleged offence, or has an intellectual disability of a degree that issues of unsoundness of mind, diminished responsibility or fitness for trial should be considered: (s 256 MHA).
Mental Health Court Judge first considers unsoundness of mind, and if they find no unsoundness they will consider whether the person is fit for trial (s 270 MHA). Judges decision will be informed by psychiatric/psychological reports and judge sits with two assisting psychiatrists (s 382 MHA). Can be found permanently or temporarily unfit. If found permanently unfit Court must order matter is discontinued and may make a forensic order. If found temporarily unfit the Court will order that proceedings are stayed and they must make a forensic order. Forensic orders may include limited community treatment. |
See further information regarding fitness, specifically in relation to child offenders, in: O'Leary, J., O'Toole, S., and Watt, B. D. (2012) Exploring juvenile fitness for trial in Queensland. Psychiatry, psychology and law, pp. 1-14.