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

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

 

When to Use This Charge

This charge should be used where the question of the accused’s fitness was raised by the trial judge.

If the question was raised by the prosecution or the defence, use Charge: Criteria for Fitness (Issue Raised by Party).

Introduction

As I have told you, it is your role in this investigation to determine if the accused is unfit to stand trial. I now need to give you directions about when a person will be unfit.

You can only find the accused unfit to stand trial if you are satisfied on the balance of probabilities of the following two elements.

First, you must be satisfied that the accused is currently unable to meet one or more of the seven minimum standards for fitness specified by the law, or is unlikely to be able to meet one or more of those standards for the whole duration of a trial for the offence[s] that s/he has been charged with.

Second, you must be satisfied that the accused’s current or likely inability to meet those standards is caused by his/her impaired or disordered mental processes.

Before you can find that the accused is unfit to stand trial, you must be satisfied of both these elements on the balance of probabilities. If you are not so satisfied, then you must find NOA fit to stand trial.

I will now explain these two elements in more detail.

Standards for Fitness

The first element relates to the minimum standards that the law says a person must be able to meet to be fit to stand trial. There are seven of these standards, each of which the accused must be capable of meeting. These standards are specific requirements the law imposes before a person will be fit to be tried. You need to determine whether NOA is able to meet these standards. You do not need to consider whether NOA is insane or "crazy" in a colloquial sense.

You do not have to be satisfied that the accused is incapable of meeting all of these standards. If you find that there is even one of these standards that NOA cannot currently meet, or is unlikely to be able to meet for the duration of a trial, this element will be satisfied.

The first standard requires the accused to be able to understand the nature of the charge[s] made against him/her. In this case, that means that s/he must be able to understand that s/he has been charged with [insert relevant offence name] by [describe alleged circumstances of the offence].

The second standard requires the accused to be able to enter a plea. That is, s/he must be able to make a rational decision about whether to plead guilty or not guilty to the offence[s] charged, and to communicate that decision to the court.

The third standard relates to the right of people charged with criminal offences to challenge jurors or the jury pool. This right allows any accused person in a criminal trial to seek to have certain people disqualified from serving on the jury, either with or without reason. To be fit to stand trial, the accused must be capable of exercising this right.

The fourth standard requires the accused to be able to understand the nature of a trial. In particular, s/he must be able to understand that a trial is an inquiry into whether s/he committed the offence charged. S/he must also be able to understand the different roles played by the jury, the judge and by counsel, as I explained them to you.

The fifth standard requires the accused to be able to follow the course of his/her trial. S/he must, for example, be able to know and understand what happened earlier in the trial, and to follow the trial as it progresses.

The sixth standard requires the accused to be able to understand the substantial effect of any evidence that may be given against him/her. This does not mean that s/he has to be able to understand the details of every single thing a witness may say. It simply requires the accused to be able to understand the substantial effect of that evidence.

The seventh standard requires the accused to be able to instruct counsel, and to make his/her defence and version of events known to the court. S/he must, for example, be able to communicate with counsel, and to make decisions about what evidence should be presented on his/her behalf or challenged by his/her counsel.

If it is alleged that the accused cannot remember the circumstances of the offence, add the following shaded section

In this case, it is alleged that NOA cannot remember the circumstances of the relevant offence[s]. While you may take this fact into account in determining NOA’s fitness to stand trial, the law says that a person is not unfit simply because s/he suffers from memory loss.

Future Unfitness

This element may be satisfied even if the accused is currently able to meet all of these standards – if you find that s/he is unlikely to be able to meet all of these standards for the whole duration of his/her trial. You must therefore not only assess the accused’s current condition, but his/her likely future condition as well.

In assessing the accused’s probable future condition, you may take into account the expected length of the trial that s/he faces. In this case, it is estimated that the trial will go for [insert expected duration]. If you find that it is likely that the accused will not meet all of the standards I have just outlined for that whole period, then this element will be satisfied.

If the accused’s condition is sensitive to stress, add the following shaded section

You may also take into account the fact that a criminal trial is a stressful experience for many people, and may become more stressful as it progresses. If you believe that the stress of such a trial is likely to make the accused’s condition deteriorate to the point where s/he can no longer meet all of the standards for fitness, then this first element will be satisfied.

Common Sense Determination

In determining whether the accused is fit to stand trial, it is important that you apply these standards in a common sense manner.

The accused does not need to be able to understand every single aspect of the evidence given, or of the procedures used in Court. What is essential is that s/he is capable of understanding the purpose and main procedures of his/her trial, and is able to understand the substance of the evidence to be given, rather than the fine detail.

If the accused is represented, add the following shaded section

In making your determination, you should take into account the fact that NOA will be assisted by counsel during his/her trial. This may assist him/her to understand the trial and to follow its processes.

In this case [insert evidence and/or submissions concerning the accused’s capacity to meet the minimum standards for fitness].

It is for you to determine, based on all the evidence, whether NOA is capable of meeting all seven of the standards I have mentioned. If you find that it is more likely than not that s/he is not capable of meeting one or more of them, or is unlikely to be capable for the duration of his/her trial, then this first element will be satisfied. Remember, if you find that the accused is incapable of meeting just one of the standards, then this first element will be satisfied.

Impaired or Disordered Mental Processes

The second element for your consideration is whether the accused’s current or likely inability to meet these minimum standards is caused by his/her impaired or disordered mental processes. If his/her inability to meet those standards results from a different cause, then s/he will be fit to stand trial.

This does not require you to find that the accused suffered from a mental illness. This element will be met if the accused’s mental processes were impaired or disordered for any reason.

If this element is not in issue, add the following shaded section

In this case it is not disputed that any incapacity suffered by NOA is caused by his/her impaired or disordered mental processes. The only issue in this case is whether NOA is capable of meeting the minimum standards of fitness specified by the law, or will be capable for the duration of his/her trial. You should therefore have little difficulty finding this second element to be satisfied.

If this element is in issue, add the following shaded section

In this case [insert evidence and/or arguments relevant to the cause of the accused’s unfitness ].

It is for you to determine, based on all the evidence, whether it is more likely than not that the cause of NOA’s [current / likely] incapacity is his/her impaired or disordered mental processes. If you find that it is, then this second element will be satisfied.

Summary

To summarise, before you can find that NOA is unfit to stand trial, you must be satisfied, on the balance of probabilities:

One — that NOA is currently unable to meet one or more of the seven minimum standards for fitness specified by the law, or is unlikely to be able to do so for the whole duration of his/her trial; and

Two — that NOA’s current or likely inability to meet those standards is caused by his/her impaired or disordered mental processes.

If you are not satisfied on the balance of probabilities of either of these elements, then you must find NOA fit to stand trial.

 

Last updated: 1 July 2013

See Also

10.1 – Investigations into Unfitness to Stand Trial

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

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