7.2 - Fitness to give coherent instructions

Where a client instructs a lawyer to plead guilty as set forth in the police brief, and there does not appear to be an issue in relation to their fitness for trial as per the test as outlined in R v Presser, a practitioner's duty to the client directs that they should act according to the client's instructions, provided there was capacity at the time of taking instructions.

However, there may be occasions where a practitioner may feel it necessary to inform the Court of his or her concerns in relation to the person's fitness. In these circumstances a practitioner may consider airing their concerns, and the basis for those concerns, with the Director of Public Prosecutions; the Attorney General, and/or as a ‘friend of the Court' to the Court itself.

In these circumstances, where the Court and/or the interested parties to a proceeding are apprised of a potential issue in relation to fitness, those parties can then raise the issue, rather than the defence.

Moreover, at common law the Court has a duty to ascertain whether a defendant is fit for trial regardless of whether or not the prosecution or the defence raise the issue. Therefore, the Court may of its own volition engage in an inquiry as to the fitness of the defendant.

It may be prudent, in difficult situations, to seek an ethical ruling from the Queensland Law Society. Moreover, where in doubt of a client's fitness, it is sensible to advise the client to seriously consider undergoing a psychiatric examination to confirm their capacity to be fit for trial.