What is a fitness hearing?

At a fitness hearing the court determines whether an accused is fit to stand trial. The ‘fitness test’ is found in s 36 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 No 12 (NSW) (‘the Act’) and lays out when an accused is taken to be unfit to be tried for an offence due to a mental health or cognitive impairment. Mental health impairment and cognitive impairment are defined in s 4 and s 5 of the Act and are extracted below followed by the Fitness test (s 36).

4   Mental health impairment

(1)  For the purposes of this Act, a person has a mental health impairment if—

(a)  the person has a temporary or ongoing disturbance of thought, mood, volition, perception or memory, and

(b)  the disturbance would be regarded as significant for clinical diagnostic purposes, and

(c)  the disturbance impairs the emotional wellbeing, judgment or behaviour of the person.

(2)  A mental health impairment may arise from any of the following disorders but may also arise for other reasons—

(a)  an anxiety disorder,

(b)  an affective disorder, including clinical depression and bipolar disorder,

(c)  a psychotic disorder,

(d)  a substance induced mental disorder that is not temporary.

(3)  A person does not have a mental health impairment for the purposes of this Act if the person’s impairment is caused solely by—

(a)  the temporary effect of ingesting a substance, or

(b)  a substance use disorder.

5   Cognitive impairment

(1)  For the purposes of this Act, a person has a cognitive impairment if—

(a)  the person has an ongoing impairment in adaptive functioning, and

(b)  the person has an ongoing impairment in comprehension, reason, judgment, learning or memory, and

(c)  the impairments result from damage to or dysfunction, developmental delay or deterioration of the person’s brain or mind that may arise from a condition set out in subsection (2) or for other reasons.

(2)  A cognitive impairment may arise from any of the following conditions but may also arise for other reasons—

(a)  intellectual disability,

(b)  borderline intellectual functioning,

(c)  dementia,

(d)  an acquired brain injury,

(e)  drug or alcohol related brain damage, including foetal alcohol spectrum disorder,

(f)  autism spectrum disorder.

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.

The question of unfitness of a defendant to be tried of an offence is to be determined on the balance of probabilities.[1] During a fitness inquiry, the court is obliged to consider ‘whether the trial process can be modified, or assistance provided, to facilitate the defendant’s understanding and effective participation in the trial’.[2] There is no onus of proof in relation to such an inquiry.

How does the Court decide?

To prove an accused is unfit to be tried their legal representative will engage a psychologist or psychiatrist to assess them and provide a report. If the medical professional is of the opinion the accused is unfit, then the prosecution (other side) will usually retain their own psychologist or psychiatrist to also undertake an assessment. If both medical professionals agree that the accused is unfit to be tried, and will not become fit within 12 months, the court will likely find the accused is unfit to be tried and order that a special hearing take place. A finding of unfitness in these terms obviates assessment of the accused by the Mental Health Review Tribunal and ‘should only be made if there is a real certainty as to the accused’s lack of fitness during the relevant 12 month period’.[3]

The Mental Health Review Tribunal is engaged when the court finds the defendant may become fit within 12 months and the matter is adjourned.

A special hearing is run similar to a trial; however, the accused’s lawyer is unable to take instructions from the client and the matter will be determined based on the evidence given at trial by a judge alone. 

In some circumstances the DPP can advise the court that they will not proceed with the matter.

[1] Ibid s 38.

[2] Ibid s 44(5)(a).

[3] R v Risi (n 6) [55].