Raising fitness to plead in NSW criminal proceedings
Fitness to plead considers whether the accused can understand the charges and meaningfully participate in the trial. The Presser test applies, and the question can be raised by the prosecution, defence, or the court of its own motion.
This is an 8-step workflow for raising fitness to plead for an accused person in NSW criminal proceedings under the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW).
Before you start
- The accused has been charged with an offence in the District or Supreme Court
- There is material suggesting the accused may not meet the Presser test
- Instructions have been taken (to the extent possible)
- Funding for a psychiatric or psychological report is in place
The workflow
Identify concerns about fitness
Document the specific concerns — communication difficulties, cognitive impairment, acute mental illness — that suggest the accused may not meet the Presser criteria for fitness.
Obtain medical and psychiatric records
Obtain existing mental health, NDIS, and medical records under subpoena or with the client's consent to provide context for the expert report.
Brief a forensic psychiatrist
Brief a forensic psychiatrist to assess the accused against the Presser test as codified by s 36 of the Act. Provide the charges, brief of evidence, and background records.
Notify the court and prosecution
Notify the court and the DPP that fitness will be raised. Seek any necessary adjournment of the current listing to allow the fitness hearing to be listed.
Prepare the fitness inquiry
Prepare outlines of evidence for any defence witnesses, the expert report, and written submissions addressing each limb of the Presser test.
Run the fitness inquiry
Run the fitness inquiry before a judge alone. Call the forensic expert and address the court on the legal test and appropriate disposition if found unfit.
Address the special hearing (if unfit)
If the accused is found unfit, prepare for a special hearing under Part 4 of the Act. The special hearing determines whether on the limited evidence available the accused committed the offence.
Advise on disposition and review
Advise the client and guardian on the disposition options — including forensic orders under the Mental Health Review Tribunal — and attend the first MHRT review.
What you will have at the end
A fitness determination that either permits the trial to proceed, leads to a special hearing, or results in the accused being dealt with under the forensic patient regime of the MHRT.
Common issues
- Assuming intellectual disability alone establishes unfitness without addressing each Presser limb
- Inadequate instructions to the forensic expert
- Failing to consider diversion under s 14 of the Act as an alternative
- Overlooking the ongoing review role of the MHRT
- Not addressing the interaction with any co-accused
Run this workflow on a real matter
Quillio drafts the letter of instructions to the forensic expert and the written submissions on the Presser test. See /practice-areas/criminal-lawyers or start a free trial.
This workflow is a general guide for NSW. Fitness provisions vary between jurisdictions — always confirm the applicable local regime.
Try this workflow with Quillio.
Quillio can run this workflow on a real matter, with citations to current AU authority on every step. The free trial requires no credit card.
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