Fitness to be Tried in Commonwealth Criminal Prosecutions


If a person stands trial notwithstanding that there is an unresolved issue as to his or her fitness to plead or if that issue is not determined in the manner which the law requires …there is a fundamental failure in the trial process.Justice Gaudron in Eastman v The Queen [2000] 172 ALR 36 at paragraph 62:

No person can be tried for a crime unless that person is fit to be tried. Put simply, an accused needs to have the mental and physical ability to comprehend the proceedings, plead to the charge and defend him or herself. The modern jurisprudence concerning fitness to be tried characterises the requirement as a component of a fair trial; see: Eastman, as above, per Gaudron at para. 65, Kesavarajah v R (1981) 181 CLR 230, at 245.

All states and territories have statutory provisions to determine the issue of an accused person’s fitness. The concept is well established in the common law and there is an established case law on the issue. The Commonwealth Crimes Act dictates a regime that applies in Commonwealth criminal prosecutions. The applicable rules and procedures are the subject of this paper.


A disproportionate number of persons with mental health and developmental issues are subject to the criminal justice system. The New South Wales Law Reform Commission, in its recent report People with an Intellectual Disability and the Criminal Justice System, noted that 2-3 % of the general population of New South Wales has an intellectual disability, whereas for persons in prison the figure is 12-13%, the figure for defendants in the NSW Local Court was as high as 37% in a study cited (see: NSW LRC report No. 80, pp. 25-26).

While criminologists debate the causal relationship between mental illness, disability and crime, simply put many more defendants are psychiatrically and cognitively unwell as opposed to the general community. Frequently, the mental health of the accused goes a long way to explaining, and sometimes excusing, the conduct.

An additional justification for the requirement that an accused must be ‘fit’ before being subject to the rigors of the criminal justice system is that significant mental illness or retardation makes an individual an inappropriate subject of general and specific deterrence. This consideration is also relevant in relation to sentence proceedings.

In R v Letteri (unreported NSW CCA 18 March 1992), Mr Justice Badgery-Parker noted:

There is ample authority for the proposition that in the case of an offender suffering from a mental disorder or abnormality, general deterrence is a factor which should be given relatively less weight than in other cases because such an offender is not an appropriate medium for making an example to others. (See also: R v Abdulrahman Fahda unreported, NSW CCA, 31 August 1999)

Especially in relation to summary matters, the rules concerning fitness recognise that a disproportionate number of defendants are mentally unwell and or developmentally disabled and that it is desirable to divert a significant proportion of these matters from the criminal justice system to the health system. While the rules concerning fitness have their genesis in the common law, they now sit along side general mental health legislation and have a diversionary impact.


The Commonwealth Crimes Act has a number of provisions that deal with fitness and the sentencing alternative for persons suffering from mental illness or intellectual disability. I list the relevant provisions below:

Division 6 – Unfitness to be tried – this division deals with fitness in relation to indictable matters.

Division 7 – Acquittal because of mental illness – this division deals with the situation when an accused is acquitted due to mental illness and provides for the making of hospital orders in relation to such a person.

Division 8 – Summary disposition of persons suffering from mental illness or intellectual disability – this division provides the standard for summary matters where the issue of the defendant’s fitness is raised.

Division 9 – Sentencing alternatives for persons suffering from mental illness or intellectual disability – this division provides such dispositions as hospital orders or psychiatric probation orders for persons convicted on indictment of federal offences.

Division 6 and 8 concern what is generally known as the accused’s fitness to be tried and are the subjects of this paper. Divisions 7 and 9 appear to be rarely used as, where they might apply, Division 6 is also applicable.


The Commonwealth Crimes Act, in common with all State and Territory regimes, distinguishes between accused persons charged with an indictable offence and those charged with a summary offence. The determination of what rules apply relate to the court in which the person would be ultimately tried. In Commonwealth prosecutions, Division 6 – Unfitness to be tried applies to indictable offences and Division 8 – Summary disposition of persons suffering from mental illness or intellectual disability applies to summary matters.

The rules concerning indictable matters more closely resemble the common law and the general principles applied in relation to fitness to be tried. The procedures applied to summary matters are less onerous and the underlying policy is to divert mentally unwell persons from the criminal justice system.

Fitness concerns the person’s physical and mental condition at the time he or she faces prosecution and has nothing to do with the person’s mental state at the time of the offence.

I have used generally the term fitness to be tried or fitness. The concept is sometimes described in terms of fitness to plead. Fitness to be tried is a wider concept. Fitness to plead is one aspect of the notion of fitness albeit an important one. It is the ability to sensibly answer the accusation against you and avail yourself of your legal options. The Commonwealth Crimes Act 1914 uses the term fitness to be tried in Division 6 and this is the preferable term. In relation to summary matters, fitness is not really the appropriate term as the concept has only limited application.


In a summary proceeding Division 8 applies. The operative section is s20BQ. s20BQ provides that:

(1) Where, in proceedings in a State or Territory before a court of summary jurisdiction in respect of a federal offence, it appears to the court:

(a) that the person charged is suffering from a mental illness within the meaning of the civil law of the State or Territory or is suffering from an intellectual disability; and

(b) that, on an outline of the facts alleged in the proceedings, or such other evidence as the court considers relevant, it would be more appropriate to deal with the person under this Division than otherwise in accordance with law…

Further, s20BR states:

For the purposes of this Division, a court of summary jurisdiction may inform itself as the court thinks fit, but not so as to require the person charged to incriminate himself or herself.

s20BQ applies to summary proceedings for a federal offence where any party raises an issue as to the defendant’s mental state or intellectual capacity. The application of the section to proceedings is discretionary as the court ‘may’ make an order under the section. The section has the effect of functioning as a dismissal of the charge and precludes the prosecution taking any further action concerning the offending conduct.

The section demands that a magistrate be satisfied of 2 matters before proceedings can be disposed of under the section. Further, whether a person should be dealt with under the section is a matter of discretion and not easily susceptible to review.

First, under s20BQ(1)(a), the court must be satisfied that a person charged is ’suffering from a mental illness within the meaning of the civil law of the State or Territory or is suffering from an intellectual disability’.

The paragraph contemplates a magistrate applying the standard of the State or Territory law in terms of determining what is a ‘mental illness’.

‘Mental illness’ is defined in the Dictionary of Terms contained in Schedule 1 of the Mental Health Act 1990 (NSW) as:

‘a condition which seriously impairs, either temporarily or permanently, the mental functioning of a person and is characterised by the presence in the person of any one or more of the following symptoms:

(a) delusions,
(b) hallucinations,
(c) serious disorder of thought form,
(d) a severe disturbance of mood,
(e) sustained or repeated irrational behaviour indicating the presence of any one or more of the symptoms referred to in paragraphs (a)-(d)’

There is no elaboration of what constitutes an intellectual disability. Intellectual disability is a broad term and, as the Law Reform Commission research indicates, would potentially encompass more than a 3rd of defendants in the NSW Local Court.

Second, once it is established that a person charged with a federal offence suffers from a mental illness or is intellectually disabled, the magistrate must then determine under s20BQ(1)(b), ‘that, on an outline of the facts alleged in the proceedings, or such other evidence as the court considers relevant, it would be more appropriate to deal with the person under this Division than otherwise in accordance with law’.

s20BQ(1)(b) requires consideration to be given to ‘an outline of the facts alleged in the proceedings’. Accordingly, a magistrate must consider the nature and seriousness of the prosecution case when determining whether a matter should be disposed of under the section. The seriousness of the offence and the likely outcome of the proceedings for the applicant must be considered when determining whether it is appropriate to deal with a matter under the section. For this reason, an applicant’s prior criminal history or good character is relevant.

Some consideration needs to be made of the public interest in the proceedings being dealt with under the section rather than according to law. If the allegation against an applicant is very serious, it may be inexpedient to apply the section, as there is a greater public interest in having the applicant dealt with according to law for the offences charged. The alleged conduct may also illustrate the dimensions of the applicant’s mental illness or intellectual disability and, as pointed out in Letteri, indicate the futility of subjecting the person to punishment.

s20BQ’s coverage is broad and its application discretionary. The section is not concerned with fitness to be tried, as it is generally understood at common law. This point is illustrated in the case of Mackie v Hunt and Anor, unreported, Supreme Court of NSW, 8 December 1989. This case concerns the then equivalent NSW provision concerning summary offences. The legislation (the then s428W of the Crimes Act 1900 NSW) was almost identical to s20BQ. The prosecution in Mackie sought to advance the proposition that the relevant test required a consideration of the defendant’s fitness to stand trial. The Court rejected this interpretation and noted the provision was a ‘diversionary measure’ ( p. 8 ) and that the magistrate could exercise powers under the section whether the intellectually disabled person is fit to be tried as a diversionary measure as well as where the defendant is unfit.

From the experience of the author, s20BQ tends to be applied fairly liberally and if the applicant satisfies the first limb, the matter is generally disposed of under the section.


An accused person’s fitness to be tried in a Commonwealth prosecution in any state or territory court is governed by Division 6 of the Crimes Act 1914. The leading case is the High Court’s decision in Kesavararajah v R (1994) 123 ALR 463.

The s20B concerns ‘proceedings for the commitment of a person for trial of a federal offence on indictment’ (s20B). On its face, it appears to only cover committal proceedings although it is applied at all stages of the prosecution of an indictable offence. When an indictable offence is being dealt with summarily, the relevant provision is s20BQ.


The fitness of an accused is a fluid concept and in light of the episodic nature of many mental illnesses, fitness will arise at different times throughout the life of the proceedings. There is a well-documented link between stress and the severity of some mental illness such as schizophrenia and it can be expected that an accused’s condition will deteriorate at critical junctures in the litigation i.e. at the commencement of the trial. Ideally, the issue should be raised prior to arraignment.

The issue of fitness can be determined at any stage in the proceedings. This includes after conviction and prior to sentence. The issue could theoretically be raised the moment before the judge pronounces sentence. Once the court is functos officio of the proceedings the question cannot be raised.

In Eastman v R, there was an attempt by the applicant, who had been convicted of murder in the Supreme Court of the Australian Capital Territory, to raise for the first time the issue of his fitness in the High Court. The question of the applicant’s fitness had not been raised at trial or at his Full Federal Court appeal. The High Court by a majority held that an accused’s fitness is a factual matter and cannot be raised as a fresh matter in an appeal court in accordance with the general rules concerning raising new matters on appeal. A failure to deal with the issue of fitness appropriately would give rise to appellable error.

According to s20B, ‘[T]he prosecution, the person or the person’s legal representative’, can raise the issue of the accused’s fitness. There does not appear to be any provision for the judge or magistrate to raise the issue, and this places some responsibility on the prosecution in appropriate circumstances to raise the issue, although sufficiently bizarre behaviour on the part of an accused may in effect raise the issue so as to provide a judge with enough justification to conduct an enquiry. Generally speaking, the accused legal representative should raise the issue. The inability to get proper instruction is indicative of a possible lack of fitness.

For the accused’s legal representative, raising fitness on one’s client’s behalf is an instance where instructions are not necessary and the legal representative can ethically act contrary to his or her instructions and raise the issue.

The issue needs to be raised in good faith and there is no requirement that there be expert evidence available at the time although such material is obviously useful. Once the issue is raised in good faith there is no discretion as to whether or not an enquiry should take place; an enquiry must take place.

Raising of the accused’s fitness will necessarily place the prosecution in abeyance. In practical terms the result of such an enquiry may be that the prosecution is delayed til appropriate treatment is undertaken. The minimum delay would be something like 6 to 12 months.

In R v Ju Sheng Zhang, unreported NSW CCA, 31 August 2000, the prosecutor, on the 4th day of the accused’s trial in which the accused was representing himself, expressed some concern about the accused’s fitness due to his increasingly bizarre behaviour. The jury had been empanelled and the trial was underway. There had been an earlier psychiatric examination of the accused that due to the accused apparent lack of cooperation had provided very little information. The prosecutor sought to then withdraw his earlier ‘application’ and the trial continued. On appeal, it was noted that it was not an option to continue the trial once the issue had been raised in good faith: ‘ his honour [had] no option but to discharge the jury and order an enquiry’ (p. 7) into the accused fitness.

In NSW, if the issue of the accused fitness is raised prior to arraignment, the permission of the NSW Attorney-General is required prior to an enquiry taking place [s8, Mental Health (Criminal Procedure) Act 1990]. s8 reads:

Procedure where question of unfitness raised before arraignment

(1)If the question of a person’s unfitness to be tried for an offence is raised at any time before the person is arraigned on a charge in respect of the offence, the Attorney General must determine whether an enquiry should be conducted before the hearing of the proceedings in respect of the offence.

(2)The Attorney General may, at any time before the enquiry is commenced, determine that there is no longer any need for such an enquiry to be conducted.

The section only applies to criminal proceedings in the Supreme and District Court relating. The permission of the State Attorney is not necessary for an indictable Commonwealth prosecution that is still proceeding through the Local Court as s20B of the Crimes Act 1914 applies. After a person is arraigned, the permission of the New South Wales Attorney is not required.

Accordingly if a person subject to a Commonwealth prosecution raises the issue of his or her fitness prior to arraignment, the permission of the state Attorney-General needs to be sought (see: Judge Woods, R v James William Shepherd, 17 July 2003, unreported). This is an example of the ‘pick-up’ of state law in Commonwealth prosecutions discussed below.


s20B states that the court ‘to which the proceedings would have been referred had the person been committed for trial’ determines the question of fitness. It is not clear from Division 6 what the mode of trial is or what procedures should be applied.

Chief Justice Mason and Justices Toohey and Gaudron in their joint judgment in Kesavarajah noted (at p. 471):

The Commonwealth Act does not make provision for the manner in which the issue of fitness to be tried is to be determined. However, s68(1) of the Judiciary Act 1903 (Cth) makes applicable to persons who are charged with offences against the laws of the Commonwealth the laws of a State or Territory respecting the procedure for trial of persons charged with offences and their conviction. And s79 of the Judiciary Act provides that the laws of each State, including laws relating to procedure, shall, except as otherwise provided by the Constitution or the laws of the Commonwealth, be binding on all courts exercising federal jurisdiction in that State in all cases to which they are applicable.

The law and procedure relating to fitness is one of those areas in Commonwealth criminal law where there is a partial ‘picking-up’ of state and territory law remedying gaps in Commonwealth legislation. This aspect of the law relating to fitness was the subject of comment in Application of Pearson (1999) 46 NSWLR 148:

In Kesavarajah, a question arose as to the fitness of an accused to be tried for a Commonwealth offence. The Crimes Act 1914 (Cth) contains provisions concerning the disposition of an accused who had been found unfit to be tried, but no provision as to the procedure by which the issue of fitness was to be tried. It was held that the State law regulating the method of determining that issue was picked up by s68, but the consequences remained to be determined by Commonwealth law. There was an inconsistency between the State and Commonwealth laws concerning that aspect, so that the latter prevailed. Otherwise the procedural provisions that were lacking under Commonwealth law were made applicable through s68 and s79 of the Judiciary Act 1903 (Cth).

In NSW, there is specific legislation dealing with mental health, and a mental health tribunal. The application of the totality of the NSW procedures in relation to Commonwealth prosecutions is uncertain. As a matter of constitutional law, any NSW provisions that are inconsistent with Commonwealth law will be inoperative to the extent of the inconsistency in accordance with s109 of the Constitution.

In relation to Mr Kesavarajah, who was prosecuted for importing a prohibited narcotic under the Customs Act in Victoria, the High Court noted (at 123 ALR 463 at 473):

The provisions of the State law must necessarily give way to the specific provisions of the Commonwealth Act to the extent of any inconsistency. The consequence would be that the State law would regulate the mode of determination of fitness to be tried, i.e. by jury in Victoria pursuant to s392 [Crimes Act 1958 (Vic)], but the consequences flowing from the determination would be regulated by Commonwealth law.

The first place to look is Division 6 of the Crimes Act 1914. The explicit procedures set out there must be followed.

Division 6 gives a greater role to the courts whereas in NSW a non-judicial tribunal, the Mental Health Tribunal, plays a dominant role after a person is found to be unfit. One of the alternatives that arises once a person is found unfit is the deprivation of his or her liberty in a therapeutic environment or a prison. In Commonwealth prosecutions, Division 6 demands that a Court makes this decision initially although there is later scope for the federal Attorney-General to be involved and what the Division terms ‘prescribed bodies’.

An unresolved issue is the relevance of the constitutional guarantee of trial by jury for matters on indictment provided by s80 of the Constitution. Namely is a fitness trial by judge alone a permissible alternative in a Commonwealth prosecution in light of s80 of the Constitution.


At common law, the determination of fitness was a jury question. The determination by a jury of what we would now call an accused’s fitness was part of an arcane practice of determining the reason for an accused’s failure to plead; an accused was either mute through ‘malice’ or ‘visitation of god’. Note 1

Fitness hearings in New South Wales for indictable offences are governed by the provisions of the Mental Health (Criminal Procedure) Act 1990 (‘the Act’). s11 of the Act states that the question of a person’s unfitness to be tried for an offence is to be determined by a jury constituted for that purpose, except as provided by s11A. s11A provides for a judge alone to determine the issue if there is consent of both the Crown and the accused.

Electing to dispense with the right to trial by jury is obviously an important issue in the progress of criminal litigation. For the consent of the accused to be obtained, the accused needs to digest appropriate advice and provide competent instructions (see: R v Mifsud, unreported, 8 November 1995, NSW CCA). As a practical point, an accused who is suspected of being unfit is also unlikely to be unable to give proper instructions as to whether to elect to have trial by judge alone. Accordingly most fitness hearings take place in front of a jury for the practical reason that the person whose fitness is to be tried is unable to give consent to a judge alone disposal irrespective of the view of the Crown.

s6 of the Act states that ‘the question of a person’s unfitness to be tried for an offence is to be determined on the balance of probabilities.’ This section applies to Commonwealth matters.

s12 of the Act deals with the conduct of the enquiry. The section reads:

12 (1) At an enquiry, the accused person is, unless the Court otherwise allows, to be represented by counsel or a solicitor.

(2) An enquiry is not to be conducted in an adversary manner.

(3) The onus of proof of the question of a person’s unfitness to be tried for an offence does not rest on any particular party to the proceedings in respect of the offence.

(4) At the commencement of an enquiry the Court is to explain to the jury the reason for the enquiry, the findings which may be made on the enquiry and the consequences, both at law and otherwise, of those findings.

The accused person at a special hearing may be allowed to give evidence (or make a statement if it is permissible) even though his or her representative is opposed to that course being followed: R v Smith (CCA (NSW), 11 June 1999, unreported, BC9903092); (1999) 6 Crim LN 50 [1015]; [1999] NSWCCA 126.

The procedures for a special hearing were considered in R v Zvonaric BC200108141; [2001] NSWCCA 505; (2002) 9 Crim LN 4 [1379], where it was stressed that a special hearing should be conducted as nearly as possible as if it were a trial (see s21 of the Act), including a formal arraignment and the proper reception of evidence. Chief Justice Spigelman stated that special hearings should not be dealt with as if they were paper committals. The trial miscarried because the trial judge did not expose her reasons for the findings made in respect of the elements of the offence.

1. W J Brookbanks, Judicial Determinations of Fitness to Plead – the Fitness Hearing, Otago Law Review, (1992) vol. 7, No. 4, 520, see: p. 522.



This article is intended to provide a guide to the operation of section 10, and the requirements defendants must keep in mind when considering applying for it. Section 10 is among the most sought after orders by defendants in the local courts, particularly by those charged with traffic offences.

This is due to the fact that section 10 of the Crimes (Sentencing Procedure) Act 1999 gives the court the discretion to find a person guilty of an offence, but nevertheless discharge that person without proceeding to conviction. Section 10 was initially introduced in order to allow the courts to prevent injustices occurring in certain circumstances where even though a legal offence had been committed, the extenuating circumstances made it inappropriate to punish the defendant.

Because there is no conviction recorded, a major benefit of section 10 is that it means that first-time offenders will not receive a criminal record, and there is no loss of a driver’s license or any other penalty imposed for the offence.

Requirements under Section 10

Section 10(3) of the Crimes (Sentencing Procedure) Act 1999 establishes the factors that should be taken into account by the court when it is considering section 10. These include;

(a) the person’s character, antecedents, age, health and mental condition,

(b) the trivial nature of the offence,

(c) the extenuating circumstances in which the offence was committed, and

(d) any other matter that the court thinks proper to consider.

These matters must be addressed by any defendant applying to the court for a section 10 conditional discharge, as the court takes them into account when determining whether it should be given. The court can then make any of the following orders:

  • An order directing that the relevant charge be dismissed under section 10(1)(a). The charges will be outright dismissed, the court will impose no further conditions, and there will be nothing recorded on the criminal record
  • An order discharging the person, subject to the condition that the person enters into a good behaviour bond not exceeding a maximum time period of two years under section 10(1)(b). The good behaviour bond will at minimum require the offender not to commit any further offences within the bond’s applicable time period, advise the court of any address changes, and require that the offender appear before the court when requested to do so.
  • An order discharging the person subject to the condition that they enter into an agreement to participate in an intervention program, and to comply with any intervention plan arising out of that program. This means that under section 10(1)(c), the defendant will be obligated to successfully participate in a rehabilitation course of some kind, and any related action plan that is specified in the intervention program.

Section 10 and traffic offences

A section 10 order is particularly beneficial for defendants charged with PCA or other traffic offences, because they will be exempt from the mandatory license disqualification periods which can only be applied following conviction. The NSW Bureau of Crime Statistics and Research has found that since its introduction, there has been a large increase over the last ten years in the use of section 10 and a corresponding decline in the use of licence disqualifications in local courts. Between 1993 and 2002 the overall percentage of PCA cases dealt with under section 10 rose by 22 percentage points for low-range PCA offenders, 12 percentage points for mid-range PCA offenders and 5 percentage points for high-range PCA offenders. At the same time, statistics indicate that the percentage of cases where an offender’s licence was disqualified fell by 18 percentage points for low-range PCA offences, 12 percentage points for mid-range PCA offences and 5 percentage points for high-range PCA offences.

However, it should be noted that if an offender has committed a traffic offence that would cause an automatic loss of demerit points, resulting in the loss of their license, this occurs regardless of whether the court dismisses the offence under section 10.

In R v Nguyen [2002] NSWCCA it was held that the dismissal of charges against first-time offenders is appropriate in certain circumstances, in order to allow them to preserve their reputation of good character. However, in relation to mid-range and high-range PCA offences the courts have generally indicated a far greater reluctance to consider a section 10 order.

In the guideline judgment Re Attorney General’s Application under s 37 Crimes (Sentencing Procedure) Act 1999(2004) 61 NSWLR 305, the court stated that “where the offence committed is objectively a serious one and where general deterrence and denunciation are important factors in sentencing for that offence, the scope for the operation of the section decreases.”

The court explained that as alcohol is continuously consumed, not only does the risk of intoxication increase but also the potential seriousness of the offence. Therefore, while for low-range PCA offences the court could conceivably accept that an offender was unaware they had exceeded the limit, this would be much more doubtful for high-range PCA offences, and section 10 would therefore be inappropriate. Furthermore, section 187 of theRoad Transport (General) Act 2005, which deals with a court’s power to impose penalties and disqualify offenders’ driver’s licences, also restricts section 10 bonds from being given where the offender has already received one in the previous 5 years.

While the section 10 order is an understandably popular order in court, particularly for first-time or traffic offenders, defendants should ensure that they understand all of the legal requirements that must be satisfied before they attempt to obtain one.

If you have any questions about how appropriate section 10 would be to your current circumstances or need any further information, please contact us.

Getting Help

Barclay Churchill Solicitors and Barristers
Level 11
111 Elizabeth Street
Sydney NSW 2000

Tel: 02 9635 3777
Fax: 02 9223 0276


ting Help


Leave a Reply