Fitness to be Tried

Fitness to be Tried denotes that the Accused has the ability to fairly partake in the trial.  For matters involving NSW legislation, this is based upon the the balance of probabilities: s. 6 Mental Health (Forensic Provisions) Act.

However, in Commonwealth matters, it is argued that the NSW onus of proof applies, which burdens the accused: Kesavarajah v The Queen (1994) 181 CLR 230, 68 ALJR 670, (1994) 74 A Crim R 100

At common law the onus of proof is on the accused if he alleges that he is unfit to be tried on the balance of probabilities, but on the Crown if it alleges it: Podola [1960] 1 QB 325.

The Test for Fitness to be tried occurs at the time of trial, not at the time of the offence:

The accused must understand the following to be fit to be tried: Dennison (CCA 3/3/88)

  • what he is charged with
  • able to plea to the charge and exercise the right to challenge
  • understand the nature of the proceedings
  • able to follow what going on in court in a general sense
  • understand the substantial effect of any evidence
  • to be able to make his defence
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