Fitness for Trial in Queensland

Alarge body of case law has developed upon the common law concept of 'fitness for trial' and most Australian jurisdictions have detailed legislative provisions that purport to define 'fitness (or unfitness) for trial' and set out procedures to be followed when an accused may not be fit for trial. There is no detailed definition of 'fitness for trial' in either the Queensland Criminal Code or the Mental Health Act. Most recently, the Queensland Court of Appeal in Re: McElligott [2002] QCA 464 interpreted the specific definition of 'fit for trial' contained in the Mental Health Act 2000 (Qld). This article reviews relevant authority and suggests specific areas of inquiry for an assessment of fitness for trial. Proposals for law reform in Queensland are also made. Given that the Mental Health Court, rather than a jury, usually determines the fitness for trial of accused persons with an intellectual disability and that these persons are almost invariably represented by counsel, it is argued that a standard should be adopted in Queensland which is not overly pedantic and impractical. It is also argued that in this context, only the most severe intellectually disability ought render an accused unfit for trial in Queensland and only in circumstances where the evidence or legal issues are complex. The detention and treatment, under involuntary treatment provisions of Mental Health Act (Qld) of persons with intellectual disabilities who have been found 'unfit' to stand trial, is also discussed.