Unfitness to Stand Trial

There are two limbs to what you used to be called the insanity defence.  The first is the defence of mental impairment and you can read about that here.

The second is unfitness to stand trial.

Everyone in a free country is entitled not to be found guilty of an offence unless and until they have either admitted their guilt or been found guilty following a fair trial.

What is to occur when a person is unable to make a rational decision about admitting their guilty or is unable to have a fair trial because of some characteristic personal to them?

The law has a system in place whereby a person can be found to be not fit to stand trial.

A person will be unfit to stand trial if the person’s mental processes are so disordered that they are:

  • unable to understand, or to respond rationally to, the charge or the allegations on which the charge is based; or
  • unable to exercise (or to give rational instructions about the exercise of) procedural rights (such as, for example, the right to challenge jurors); or
  • unable to understand the nature of the proceedings, or to follow the evidence or the course of the proceedings.

The bar as to whether any of these criteria is met is understandably set very high by the court.

Using the third criterion as an example, it would not be sufficient that a person not be able to understand the intricacies of the evidence.

In some cases, such as those involving complex DNA or fraud matters containing complex accounting, having to fully understand all of the evidence may mean that many people would not be fit to stand trial.

Rather, all that is required is that the person be capable of following the general nature of the evidence.

For example, in DNA evidence, the accused does not need to understand the complexities of primary, secondary and tertiary transfer or the possibilities of contamination.  They only need to be able to understand that a substance likely to be their DNA was found at the scene, or on an object, and that makes it more likely, though not conclusive, that they committed the offence.

When considering whether or not a person is fit to stand trial the court takes into account that the person is usually represented by a lawyer who can explain the process to them.

A court will usually make accommodations in order to ensure that a person is fit to stand trial, for example longer breaks and shorter sitting hours or having a companion available to the accused.

The onus is on the Defendant to establish that they are not fit to stand trial on the balance of probabilities.

If a defendant is not fit to stand trial, but is likely to regain fitness within 12 months, then the matter will be adjourned either until it is expected the defendant will regain fitness or 12 months, whichever is the sooner.

If a defendant is not fit to stand trial, but has committed the conduct alleged then they are declared liable to supervision.  That process is dealt with separately.



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