12.0 - Client is Charged with a Summary Offence Only and is not on an ITO or FO

Where the defendant is charged with a summary offence only, there is no rite of passage to have the issue of ‘unfitness for trial' or 'unsoundness of mind' dealt with by the Mental Health Court unless the person is already the subject of an Involuntary Treatment Order or a Forensic Order. Given that duty lawyers commonly deal with summary offences, they are often precluded from referring mental health or relevant disability issues to the Mental Health Court.

Thus, simple offences in the absence of an accompanying indictable offence are problematic because there is no avenue available to refer the matter to the Mental Health Court. Thus, all investigations and enquiries must take place in the Magistrates Court. Issues relating to the defence of unsoundness of mind and fitness for trial can and are tried in a summary fashion in the Magistrates Court.

Where there are concerns as to whether the client may have been of unsound mind at the time of the alleged offences, or that he or she is now unfit for trial, practitioners should obtain a report from an experienced forensic psychiatrist. If the client is short of money, set out the reasons for your view about his or her condition in an application for Legal Aid Queensland funding to pay for the report. If the report supports a finding of unsoundness or unfitness, or both, write a submission to the Police Prosecution Corp (PPC) appending the report and urging them to discontinue the charges. Make sure that the report expressly authorises disclosure of its contents before so proceeding. If it does not, contact the reporting Doctor and request advice about it.

Should the PPC reject your submission, set the matter down for a Summary trial and argue the relevant issues therein. Allow the Magistrate to determine the question of fitness on a preliminary hearing.

Should the medical report opine that the client was of sound mind at the relevant time, and that he or she is fit for trial, you may take the client's instructions on how he or she intends to plead to the charges.