The NSW Act does not define 'fitness to be tried'. It does, however, define ‘mentally ill person’ and ‘mental condition’.
Like the Federal jurisdiction, the NSW Act does not contain a presumption that a person is fit to plead or be tried.
Under the NSW Act, the question of a person's fitness to be tried for an indictable offence in the Supreme and District Courts (or a summary offence in the Supreme Court) may be raised by a party to
313 Crimes Act 1914(Cth), s 20BQ 314 Ibid 315 Ibid
the proceedings.316 This question should preferably be raised before the person is arraigned, but may be raised during the course of the proceedings.317
If the accused's fitness is raised before arraignment, the court must determine whether an inquiry should be conducted to determine fitness.318 If the accused's fitness is raised after arraignment, the court must hear submissions relating to the conducting of an inquiry (see below).319
The court need not conduct an inquiry and may dismiss the charge if it is not appropriate to punish having regard to any relevant matters including the nature of the offence and the accused's disability.320
Before conducting the inquiry, the court can make any appropriate order, including detaining the accused in custody for up to 28 days or requesting the accused to undergo a psychiatric examination.321
4.7.2 Inquiry
The question of a person's fitness to be tried is to be determined by a single judge322on the balance of probabilities.323 The onus of proof of the question of fitness does not rest on any particular party. The accused is to be legally represented, unless the court allows otherwise.324
If the accused is found unfit to be tried, they must be referred to the Mental Health Review Tribunal to determine whether they will be become fit to be tried within 12 months.325 This determination is made on the balance of probabilities.326
If the Tribunal determines the accused will be fit to be tried within 12 months and is satisfied the accused has a mental illness, the Tribunal may:
grant the accused bail for up to 12 months; or
detain the accused at a mental health facility or some other place for up to 12 months.327
If the Tribunal determines the accused will not be fit to be tried within 12 months, the Tribunal must notify the Director of Public Prosecutions.328 After receiving notification from the Tribunal and
316 Mental Health (Forensic Provisions) Act 1990(NSW), s 5 317 Ibid s 7 318 Ibid s 8 319 Ibid s 9 320 Ibid s 10(4) 321 Ibid s 10(3) 322 Ibid s 11(1) 323 Ibid s 6 324 Ibid s 12(3) 325 Ibid s 16(1) 326 Ibid s 16(1) 327 Ibid s 17 328 Ibid s 16(4)
advice from the Director of Public Prosecutions, the court may dismiss the matter or refer it to a 'special hearing' to determine whether the accused has committed the offence.329
4.7.3 Special hearings
The provisions regarding special hearings are lengthy and complex. Broadly, if the accused is found guilty at the special hearing, the court must refer the accused back to the Tribunal to determine whether the person is suffering from a mental illness or condition. If so, the court may detain the accused in a health facility or other place for an unspecified period of time.330
4.7.4 Summary offences
Like the Commonwealth, Part 3 of the NSW Act affords a magistrate powers to deal with mentally ill persons charged with relevant summary offences . Specifically, the magistrate may dismiss the charge or make any appropriate order if they consider:
a person accused of a summary offence is suffering from a mental illness, a mental condition or a development disability; and
it would be more appropriate to deal with the accused under Part 3 than in accordance with law.331
4.8 Queensland
Determination of fitness to plead or stand trial is dealt under both the Criminal Code 1899 (Qld) ("Queensland Act") andMental Health Act 2000(QLD). In Queensland the legislation deals with fitness to plead for indictable offences only, and does not contain any provisions applicable to fitness to plead for summary offences. This failure has been criticised by the Queensland Court of Appeal in R v AAM; Ex parte Attorney General (Qld)[2002] QCA 305.
4.8.1 Fitness to plead
The relevant legislation in most jurisdictions contain a rebuttable presumption that a person is fit to plead or stand trial. Although the Queensland Act does not contain a presumption specifically related to fitness to plead or stand trial, it contains a rebuttable presumption that a person is of sound mind.332 The terms 'fitness to plead' or 'fitness to stand trial' are not specifically defined in the Queensland Act, however the terms are, to a certain extent, given meaning by the relevant provisions. Whether a person is considered fit to plead depends on whether the person is 'capable of understanding the proceedings at the trial, so as to be able to make a proper defence'.333 Whether a person is considered fit to stand trial depends on whether the person is of 'sound mind'.334
An accused's fitness to plead may also be determined by a jury and the Mental Health Court.
4.8.2 Determination by jury 329 Ibid s 19 330 Ibid s 30 331 Criminal Code 1899(Qld), s 32 332 Ibid s 26 333 Ibid s 613 334 Ibid s 645
A jury may be called upon to determine a person's fitness when the accused pleads to the indictment or at any time during the trial.335 The Queensland Act does not state who can raise an issue as to a person's fitness to plead. Rather, the question is raised:
if, at the time the accused is to enter a plea, the accused's fitness to plead "appears uncertain" for any reason;336or
if, during the trial, it is "alleged or appears" that the person is not of sound mind.337
The question as to a person's fitness to plead may be determined by a jury, if at the time the accused is to enter their plea, it 'appears to be uncertain, for any reason, whether the person is capable of understanding the proceedings at the trial, so as to be able to make a proper defence'.338 If the jury determines the accused is of unsound mind, the court may order to the accused to be discharged or kept in custody in a manner that the court thinks fit.339 The accused is to be kept in custody until they can be dealt with according to law (such as theMental Health Act 2000(Qld).
Further, a jury will be required to determine whether a person is not of sound mind, if it is alleged or appears that the person is not of sound mind during the trial.340 If the jury finds the accused to be of unsound mind, they court must order the person to be kept in custody until they can be dealt with under theMental Health Act 2000(Qld).341
If the jury determine the accused is unfit (either when the accused is called upon to plead or at any time during the trial) and a custody order was made, the court must notify the Director of Mental Health of the order. The Director is then required to refer the matter to the Mental Health Review Tribunal.342
An order may be made detaining the accused in a high security unit or an authorised mental health service.343