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10.1.1 – Charge: Investigations into Unfitness to Stand Trial (Mandatory Preliminary Directions)

Click here to obtain a Word version of this document for adaptation.

[This charge addresses the directions which must be given at the beginning of an investigation into the accused’s fitness to stand trial (Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 s11). It has been designed to be used instead of Preliminary Charge: Role of Judge and Jury.

The criteria the jury must use to determine whether the accused is fit to stand trial are addressed in Charge: Criteria for Fitness. That charge does not need to be given at the start of an investigation, although it may be (at the judge’s discretion).

Many other charges contained in the Charge Book will also be relevant to investigations into the accused’s fitness. If these charges are used, appropriate changes should be made to reflect the differences between investigations and criminal trials (e.g. the onus of proof and the available findings).]

Introduction

Serving on a jury may be a completely new experience for some, if not all, of you. To help you perform that role properly, I will now describe your duties as jurors and the procedures that we will follow during this hearing. I will also explain to you some of the principles of law that apply.

During and at the end of the hearing, I will give you further instructions about the law that applies. You must listen closely to all of these instructions and follow them carefully.

If at any time you have a question about anything I say, please feel free to ask me. It would be best if you did this by writing it down, and passing it to my tipstaff, [insert name], who will hand it to me.

Purpose of Investigation

Members of the jury, you represent one of the most important institutions in our community – the institution of the jury. Our legal system guarantees any individual charged with a criminal offence the right to have the case presented against him or her determined by twelve independent and open-minded members of the community, in accordance with the law.

However, the law recognises that it would be unfair and unjust for a trial to take place if the person charged is unable to understand the case against him or her, or to meaningfully participate in the trial. According to the law, a person must be fit to stand trial before he or she can be convicted of an offence.

Ordinarily, this is not an issue. It is presumed that everybody is fit to stand trial, so unless there is a concern about the accused person’s fitness, a trial simply proceeds. However, if a question is raised about the accused’s fitness to stand trial, the matter must be determined by a jury.

That is what has happened here. It has been suggested by the [prosecution / defence] that NOA may not be fit to stand trial. The purpose of this hearing is for you to determine whether that is the case.

Roles of Judge, Jury and Counsel

In all hearings of this type, the court consists of a judge and jury. We are going to be assisted by counsel for the prosecution, [insert prosecutor’s name], and defence counsel, [insert defence counsel’s name]. Each of us has a different role to play.

Role of the Jury

It is your role, as the jury, to decide what the facts are in this case. You are the only ones in this court who can make a decision about the facts. You make that decision from all of the evidence given during the hearing.

It is also your task to apply the law to the facts that you have found, and by doing that decide whether the accused is fit or unfit to stand trial.

Role of the Judge

It is my role, as the judge, to ensure that this hearing is fair and conducted in accordance with the law. I will also explain to you the principles of law that you must apply to make your decision. You must accept and follow all of those directions.

I want to emphasise that it is not my responsibility to decide whether the accused is fit to be tried. Your decision has absolutely nothing to do with me. So while you must follow any directions I give you about the law, you are not bound by any comments I may make about the facts.

It is unlikely that I will make any comments about the evidence. If you disagree with any comments I make, you must disregard them. Do not give them any extra weight because I, as the judge, have made them. It is your view of the facts which matters, not mine. You are the judges of facts – you alone.

Role of Counsel

The role of counsel is to present the case for the side for which they appear.

[Insert name of prosecutor] represents the State. [Insert name of defence counsel] appears for the accused, and will represent him/her throughout this hearing.

You do not need to accept any comments that counsel may make during their addresses. Of course, if you agree with an argument they present, you can adopt it – in effect, it becomes your own argument. But if you do not agree with their view, you must put it aside. As I have told you, you alone are the judges of the facts.

Similarly, you are not bound by what counsel says about the law. I am the judge of the law, and it is what I tell you about the law that matters. If counsel says something different from what I say about the law, you must ignore it and follow my directions.

Available Findings

At the end of this hearing, you will be asked to determine whether the accused is fit or unfit to stand trial. This is the only question that you will answer. You will not make any decisions about whether the accused committed [any of] the offence[s] that s/he has been charged with.

Even if you find the accused unfit to stand trial, that is not the end of the matter. The question of whether or not the accused committed [any of] the offence[s] charged will be determined at some time in the future, by another jury.

Onus of Proof

If it was the prosecution or defence who raised the issue of the accused’s fitness, add the following shaded section

In this case, it was the [prosecution/defence] who suggested that NOA may not be fit to stand trial. It is therefore their responsibility to prove that s/he is unfit.

They must do this on what is called the "balance of probabilities". That is, in order for you to find that NOA is not fit to stand trial, the [prosecution/defence] must prove to you that it is more likely than not that s/he is unfit.

This standard of proof is different to that which is required to prove the accused’s guilt in a criminal trial. In such a trial, matters must be proven "beyond reasonable doubt".

By contrast, in this hearing you may find the accused unfit to stand trial even if you think that s/he may be fit – as long as you are satisfied, having regard to all of the evidence, that it is more likely than not that s/he is unfit.

If it was the trial judge who raised the issue of the accused’s fitness, add the following shaded section

The accused’s unfitness to stand trial must be established on what is called the "balance of probabilities". That is, in order for you to find that NOA is not fit to stand trial, you must be satisfied that it is more likely than not that s/he is unfit.

This standard of proof is different to that which is required to prove the accused’s guilt in a criminal trial. In such a trial, matters must be proven "beyond reasonable doubt".

By contrast, in this hearing you may find the accused unfit to stand trial even if you think that s/he may be fit – as long as you are satisfied, having regard to all of the evidence, that it is more likely than not that s/he is unfit.

 

Last updated: 1 July 2013

See Also

10.1 – Investigations into Unfitness to Stand Trial

10.1.2 – Charge: Criteria for Fitness (Issue Raised by Party)

10.1.3 – Charge: Criteria for Fitness (Issue Raised by Judge)