Representing Mentally Ill and Intellectually Disabled Clients in QLD

7.1 - The test for fitness for trial

To assess whether a defendant is fit for trial, lawyers should have recourse to Kesavarajah v The Queen [1994] HCA 41;(1994) 181 CLR 230, where the High Court confirmed that the test for fitness for trial, is, as outlined by Smith J in R v Presser [1958] VR 45, read with the current Queensland Mental Health legislation: see Queensland Court of Appeal in R v M [2002] QCA 464.

In R v Presser, the trial judge considered that an issue of fitness arose from the defendant's medical reports and the transcript of his committal hearing. Although a jury determined Presser was fit for trial to the charge of murder, Smith J set out seven criteria, which a defendant should satisfy in order to be fit for trial.

Thus, according to R v Presser a defendant must be able to:

  • Understand the nature of the charge;
  • Plead to the charge;
  • Exercise the right of challenge to empanel jurors;
  • Understand the nature of the proceedings, namely that it is an inquiry as to whether the accused committed the offence;
  • Follow the course of the judicial proceedings in a general sense;
  • Understand the substantial effect of any evidence that may be given in support of the prosecution; and
  • To make a defence or answer the charge. If the defendant has counsel, the defendant must be capable of providing that counsel with the necessary instructions; and to inform counsel of their version of the facts. Thus, a defendant must have sufficient capacity to understand counsel's advice, and, to decide what defence he or she may rely upon.

By way of further general comment in relation to fitness for trial, practitioners should not overlook those cases where a defendant is represented by counsel, and, that it not necessary to demonstrate that the defendant understands the nuances of court procedures, or, the intricacies of the substantive law. 

For instance, the High Court observed in Ngatayi v  R (1980) 147 CLR 1 at 8 that "the test looks to the capacity of the accused to understand the proceedings but complete understanding may require intelligence of a high order, particularly in cases where intricate legal questions arise. It is notorious that many crimes are committed by persons of low intelligence but it has never been thought that a person can escape trial simply by showing that he is of low intelligence. We respectfully agree with the view expressed by Smith J in R v Presser (1958) VR 45 at 48 that the test needs to be applied "in a reasonable and common sense fashion". Smith J went on to say that there are certain minimum standards which the accused needs to equal before he can be tried without unfairness or injustice, but added that the accused "need not have the mental capacity to make an able defence"."

In R v M [2002] QCA 464, paragraph 7, the Court observed that "fitness for trial should therefore be assessed in the recognition that he [a defendant] is represented by counsel, and that court proceedings may be structured in order to accommodate his disability".