Fitness to be tried
Everyone charged with an offence has the right to a fair trial. To have a fair trial, the offender must be able to understand the charges and take part in the case.
An offender may be unfit to be tried if a mental health or cognitive impairment stops them from doing these things:
- understand the offence
- enter a plea
- challenge jurors
- understand the court process in a general way
- understand the important evidence against them
- make a defence or answer the charge
- instruct their lawyer
- decide what defence to use.
This must be proved on the balance of probabilities. This means the court must think it is more likely than not. This is decided at a special hearing called a fitness inquiry.
The question of whether the offender is fit to be tried can be raised by:
- the offender
- the prosecutor
- the court.
This issue can be raised at any stage of the case, and more than once. Where possible, it should be raised before the arraignment, which is when the offender is formally asked how they plead.
Mental health impairment
A mental health impairment is a condition that affects a person’s thoughts, mood, memory, judgement or behaviour, and is serious enough to be diagnosed by a health professional.
It may be caused by:
- an anxiety disorder
- an affective disorder, such as clinical depression or bipolar disorder
- a psychotic disorder
- an ongoing mental health condition caused by substance use.
It does not include a condition caused only by:
- the temporary effect of ingesting a substance, such as alcohol or illegal drugs
- a substance use disorder.
Cognitive impairment
A cognitive impairment affects how a person understands, learns, remembers, makes decisions or manages everyday life. It happens because of damage to, delay in, or changes to the brain or mind.
It may be caused by:
- an intellectual disability
- borderline intellectual disability
- dementia
- an acquired brain injury
- brain damage caused by drug or alcohol use, including foetal alcohol spectrum disorder
- autism spectrum disorder.
Fitness inquiry
If there is a question about whether the offender is fit to be tried, the court must decide whether to hold a fitness inquiry.
The court may decide not to hold an inquiry, dismiss the charge and release the offender if it would be inappropriate to punish them because of:
- the trivial nature of the charge
- the nature of the offender’s mental health or cognitive impairment
- any other matter.
If the court decides to hold a fitness inquiry, it must do so as soon as possible. It can only do this if the issue was raised honestly and for a proper reason.
The process
Before the fitness inquiry, the court can:
- adjourn the case
- grant the offender bail
- order the offender to be placed into custody for up to 28 days
- order a psychiatric or other assessment and a report
- discharge a jury.
At the inquiry, the judge decides whether the offender is fit to be tried. If a jury has already been selected, it will not take part in the inquiry.
The court must consider:
- whether changes to the trial process or giving the offender extra help could allow the offender to take part in the trial
- the likely length and complexity of the trial
- whether the offender has, or can obtain, a lawyer.
Changes to the trial process or extra help may include:
- taking regular breaks so the process can be explained to the offender
- allowing the offender to have a support person seated with them at court.
If the offender is fit to be tried
If the court finds the offender fit to be tried, the case continues from where it stopped before the inquiry. If the offender has been committed for trial, the court may send the matter for a case conference.
Even if the offender is fit to be tried, they may still rely on a defence of mental health or cognitive impairment. The court can still hear evidence about the offender’s mental state at the time of the offence.
If the offender is unfit to be tried
If the court finds the offender is unfit to be tried, it must decide whether they may become fit to be tried within the next 12 months. To help decide this, the court may order a report and hear from a psychiatrist or psychologist.
If the court finds the offender may become fit to be tried within 12 months, it must refer them to the Mental Health Review Tribunal. The tribunal must review the case as soon as possible to decide whether the offender has become fit to be tried.
The Mental Health Review Tribunal must tell the court, the prosecutor and the offender’s lawyer if it decides that the offender:
- has become fit to be tried for an offence, or
- won’t become fit to be tried within the next 12 months.
If the offender becomes fit to be tried, the case will resume from where it stopped.
If the court or the Mental Health Review Tribunal finds the offender will not be fit to be tried within 12 months, the court must ask the prosecutor whether the case will continue. If the prosecutor continues the case, the court must hold a special hearing as soon as practical. If the prosecutor drops the case, the court will release the offender.
If the offender is unfit to be tried, you will not be called to give evidence at a trial. But you may be called to give evidence at a special hearing.
Special hearing
A special hearing is usually decided by a judge alone. It is run as much like an ordinary hearing as possible. You may be called to give evidence.
At a special hearing, the court can find the offender:
- not guilty
- act proven but not criminally responsible
- on the limited evidence available, committed the offence or an alternative offence.
Not guilty
If the offender is found not guilty, the case is finished and the offender stops being a forensic patient.
Act proven but not criminally responsible
The court can only make a finding of act proven but not criminally responsible if it believes, on the balance of probabilities, that because of a mental health or cognitive impairment the offender did not know:
- what they were doing, or
- what they were doing was wrong.
If there is a special verdict of act proven but not criminally responsible, the court may make orders:
- that the offender be remanded in custody
- that the offender be detained in a specific place and manner
- release the offender with or without conditions
- other orders that are appropriate.
The judge must not release the offender unless they believe, on the balance of probabilities, that this will not seriously endanger the offender or the community. To help decide this, the judge can ask for a report from a forensic psychiatrist.
If the judge believes it is safe to release the offender, they can do so with or without conditions. For example, the offender may have to get medical treatment or live at a particular place.
The judge must refer the offender to the Mental Health Review Tribunal if a special verdict is entered and the offender is not released. This is usually what happens. If the offender is referred to the Tribunal, they will become a forensic patient.
Guilty
If the court finds the offender committed the offence, it can impose the same penalty it could have imposed after an ordinary trial. If the court would have sentenced the offender to prison, it must set a limiting term.
For more information, see Crimes involving an accused with a mental health or cognitive impairment on the Office of the Director of Public Prosecutions website.
Limiting term
A limiting term is the longest time a forensic patient can be kept in detention or treatment. It is the court’s estimate of the prison sentence the person would have received if they had been fit to stand trial and found guilty.
A limiting term starts on the day the court makes it, unless the court orders otherwise. It does not have a non-parole period.
After the court sets a limiting term, it must refer the offender to the Mental Health Review Tribunal for review. While waiting for that review, the court can order the offender to be held in a mental health facility or prison.
When the limiting term ends, the offender is no longer a forensic patient and can be discharged.
If the limiting term is about to end, but the Mental Health Review Tribunal believes the offender is still a risk to themselves or the community, it can make them an involuntary patient.
For more information, see Involuntary hospitalisation.
The Minister can also ask the Supreme Court to extend the offender’s status as a forensic patient. The court can only do this if it believes that:
- the forensic patient poses an unacceptable risk of causing serious harm to others, and
- that risk can’t be adequately managed by less restrictive means.
Defence of mental health or cognitive impairment
An offender is not criminally responsible for an offence if, at the time of the offence, a mental health or cognitive impairment meant they did not know:
- what they were doing, or
- what they were doing was wrong.
If the offender had a mental health or cognitive impairment when the offence happened, they may be able to rely on this defence. It used to be called the defence of mental illness.
The offender must prove, on the balance of probabilities, that:
- they had a mental health or cognitive impairment, or both, when they committed the offence, and
- because of the impairment the offender didn’t know what they were doing, or that it was wrong.
The offender must prove that they could not understand right from wrong in the way an ordinary person would.
The law assumes the offender did not have a mental health or cognitive impairment, unless they prove otherwise.
After the trial, the judge or jury can reach one of these verdicts:
- not guilty – the case is finished and the offender is released
- guilty – the judge will decide the penalty
- act proven but not criminally responsible – if the offender successfully proves this defence.
Special verdict
There is a faster process if the prosecutor agrees that the offender can prove the defence. In that case, there is no need for a trial. The judge can enter a special verdict at any stage of the case, including before a jury is chosen, if:
- the offender and the prosecutor agree that the evidence shows this defence, and
- the offender has a lawyer, and
- the judge is satisfied that the evidence shows the defence.
After a special verdict, the judge can make orders:
- that the offender be held in custody
- that the offender be held in a specific place and manner
- for the unconditional or conditional release of the offender from custody
- any other orders.
The judge must not release the offender unless satisfied, on the balance of probabilities, that this will not seriously endanger the offender or the community. To help decide this, the judge can ask for a report from a forensic psychiatrist.
If the judge is satisfied that it is safe to release the offender, they can do this with or without conditions. This may include conditions to receive medical treatment or live at a specific place.
The judge must refer the offender to the Mental Health Review Tribunal if a special verdict is entered and the offender is not released. This is common. If the offender is referred to the tribunal, they will become a forensic patient.
For more information, see Crimes involving an accused with a mental health or cognitive impairment on the Office of the Director of Public Prosecutions website.
Forensic patients
If the offender becomes a forensic patient, a different process applies.
If the offender is sent to a mental health facility, the Mental Health Review Tribunal will manage the case. Tribunal reviews are different from court hearings. They look at the offender’s detention, care and treatment.
You have the right to know about tribunal reviews and take part in them.
The offender will stay in detention until the tribunal decides they are no longer a serious risk to themselves or the community. There is no set time limit.
For information about Forensic patients, see Forensic patients.
Less serious offences
There is a different process in the local court if the offender has:
- a mental health or cognitive impairment
- a mental illness or mental disorder.
Mental health or cognitive impairment
If the offender has been charged with a less serious offence, the court can make orders for the offender to receive treatment instead of dealing with the case in the usual way.
Less serious offences include:
- summary offences, or
- indictable offences being tried summarily.
If the offender may have a mental health or cognitive impairment, or may have had one when the offence happened, the court can adjourn the case so the offender can be diagnosed or treated.
The court can also dismiss the charge and release the offender:
- into the care of a responsible person, with or without conditions
- on the condition that the offender is assessed for treatment and support
- without any conditions.
If this happens, the court has not found the offender guilty and no conviction is recorded.
If the offender does not follow the court’s conditions, the court can order them to come back to court. It can also issue a warrant. The charge can then be dealt with as if it had not been dismissed.
Mental illness or mental disorder
The court may find that an offender has a mental illness if there are reasonable grounds to believe they need care, treatment or control:
- for their own protection from serious harm, or
- to protect others from serious harm.
The offender has a mental disorder if their behaviour is so irrational that there are reasonable grounds to believe they need temporary care, treatment or control:
- for their own protection from serious harm, or
- to protect others from serious harm.
If the offender may have a mental illness or mental disorder, the court can make orders:
- for the offender to be detained in a mental health facility for an assessment
- discharging the offender into the care of a responsible person, with or without orders.
After 6 months, the charge is treated as dismissed if the offender:
- still needs treatment, or
- is following the conditions of their release.
If this happens, the court has not found the offender guilty and no conviction is recorded.
Victims compensation
You may be able to claim compensation for injury or loss caused by the offence if:
- the offender is found guilty after a trial
- the court finds that the offender committed the offence or an alternative to the offence.
For more information, see Criminal compensation order.
Last updated: May 2026
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