When is a Defendant Unfit for Trial?

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Mentally ill

Fitness for trial relates to the defendant’s ability to comprehend and fairly participate in the trial process.

It is a procedural question which is reserved for the higher courts, such as the District or Supreme Court, and is separate from legal defences such as the defence of ‘insanity’.

It is also different from a section 32 application, which is a Local Court procedure whereby a magistrate may discharge a defendant who is found to have a mental condition (without finding them guilty or innocent) provided the defendant undertakes to comply with a mental health treatment plan of up to 6 months, if the court finds that this course of action is more appropriate than dealing with the defendant according to the general law.

When is a defendant unfit for trial?

There is no legislative test for whether a defendant is fit or otherwise for trial; rather, the test is set out in the common law.

The classic definition of when a person is fit for trial is contained in the case of R v Presser [1958] VR 45. To be fit for trial, the defendant must be able to:

  • understand what they are charged with,
  • plead to the charge and exercise their right of challenge,
  • understand the general nature of the proceeding, namely that it is an inquiry as to whether they did what they are charged with,
  • follow the course of the proceedings so as to understand what is going on in court in a general sense,
  • understand the substantial effect of any evidence that may be given against them; and
  • make their defence or answer to the charge, by giving necessary instructions to a lawyer and telling them their side of the story.

The defendant will be unfit if they are unable to do any one of those things.

While confirming the test in Presser, the High Court in Kesavarajah v The Queen (1994) 181 CLR 230 added that the length of the trial is relevant when determining the outlined factors, stating:

“… fitness to be tried is to be determined by reference to the factors mentioned by Smith J in Presser and by reference to the length of the trial. It makes no sense to determine the question of fitness to be tried by reference to the accused’s condition immediately prior to the commencement of the trial without having regard to what the accused’s condition will or is likely to be during the course of the trial.”

The test in Presser was further clarified by the High Court in the highly-publicised murder case of David Eastman v The Queen [2000] HCA 29; 203 CLR 1, during which Chief Justice Gleeson cited the following part of a Canadian judgment with approval:

“(a) The fact that an accused person suffers from a delusion does not, of itself, render him or her unfit to stand trial, even if that delusion relates to the subject-matter of the trial.

(b) The fact that a person suffers from a mental disorder which may cause him or her to conduct a defence in a manner which the court considers to be contrary to his or her best interests does not, of itself, lead to the conclusion that the person is unfit to stand trial.

(c) The fact that an accused person’s mental disorder may produce behaviour which will disrupt the orderly flow of a trial does not render that person unfit to stand trial.

(d) The fact that a person’s mental disorder prevents him or her from having an amicable, trusting relationship with counsel does not mean that the person is unfit to stand trial.”


Part 2 of the Mental Health (Criminal Procedure) Act sets out the procedure for when the question of fitness arises.

The part makes it clear that the issue may be raised by any party or by the court itself, at any time during the proceedings, and is assessed on the balance of probabilities by a judge-alone.

If the defendant is found to be unfit, the court must refer him or her to the Mental Health Review Tribunal which will determine whether they are likely to become fit within 12 months.

If so, the court will determine whether to grant bail, or order their detainment in a mental health facility or other place. The court will make this decision after considering the Tribunal’s report.

If the defendant is unlikely to be fit within 12 months, the DPP will be notified and will then advise the court whether it proposes to proceed with the case.

If the DPP proceeds, the case will go to a ‘special hearing’ where the court will decide whether to find the defendant not guilty, or not guilty on grounds of mental illness, or that he or she committed the offence, or that he or she committed an alternative offence.

The law and procedure relating to the question of fitness is complex, and case-specific advice should be obtained from a specialist criminal defence firm whose lawyers are experienced in these types of matters before deciding whether to pursue that course of action.

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Zeb Holmes

Zeb Holmes

Zeb Holmes is a lawyer with a passion for social justice who advocates criminal law reform, and a member of the content team at Sydney Criminal Lawyers®.
Ugur Nedim

Ugur Nedim

Ugur Nedim is an Accredited Criminal Law Specialist with 25 years of experience as a Criminal Defence Lawyer. He is the Principal of Sydney Criminal Lawyers®.

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