CRIMINAL DEFENCE LAWYERS

Posts Tagged ‘fitness to be tried’

10/12/2003

INTRODUCTION

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. Read the rest of this entry »