Fitness or unfit to stand trial criteria NSW

Fitness to Stand Trial Criteria in New South Wales (NSW)

In the realm of the legal system, ensuring that the accused is mentally capable of participating in their trial is a cornerstone of just proceedings. In New South Wales (NSW), the concept of “fitness to stand trial” plays a pivotal role in ensuring that justice is both served and seen to be served. This article delves into the criteria, process, and evidence requirements surrounding this concept.

Criteria for Fitness to Stand Trial

In NSW, a person is deemed unfit to be tried for an offence if, due to a mental or cognitive impairment, they cannot:

  • Understand the nature of the charges brought against them.
  • Plead to the charges and exercise the right to challenge jurors.
  • Understand the nature of the trial, namely that it’s an inquiry as to whether they committed the offence.
  • Follow the course of the trial.
  • Understand the evidence presented.
  • Instruct their lawyer.

The Process

The question of an individual’s fitness to stand trial can be raised by the court, the defence, or the prosecution. Once this question arises:

  • Referral for Assessment: The court may refer the accused for assessment by an appropriate expert, often a forensic psychologist or psychiatrist, to determine their fitness to stand trial.

  • Unfitness Finding: If the court determines the accused is unfit, they won’t undergo a conventional trial. Instead, a special hearing will be held, which resembles a regular trial but has some differences, particularly regarding the verdict.

  • Duration of Unfitness: If a person is found to be permanently unfit to stand trial, they may be detained in a mental health facility or another appropriate place. If the unfitness is temporary, the court can adjourn proceedings to see if the accused becomes fit to stand trial at a later date.


To ascertain fitness, the accused may undergo multiple examinations, often by forensic mental health professionals. These examinations assess:

  • Cognitive functioning: Assessing abilities like memory, attention, and logical thinking.
  • Psychiatric symptoms: Evaluating the presence of hallucinations, delusions, or severe mood disorders.
  • Understanding of court procedures: Testing the accused’s grasp of legal proceedings and their personal role within them.

4. Evidence Requirements

To determine the accused’s fitness:

  • Expert Testimony: Forensic psychologists or psychiatrists who examined the accused provide their findings in the form of reports and may be called upon to testify in court.

  • Medical History: Prior medical and psychiatric records can offer insight into the accused’s mental state and history of impairment.

  • Observations: Observations made by legal professionals, jail staff, or other relevant parties might be used as evidence regarding the accused’s behaviour and comprehension.

  • Standardised Tests: In some cases, results from standard psychological tests that measure cognitive ability, mental illness symptoms, or both can be used.


Fitness to stand trial in NSW is a fundamental consideration to ensure that the accused’s rights are preserved and that the justice system operates fairly. With strict criteria and a thorough process, NSW aims to strike a balance between upholding justice and ensuring the well-being of all individuals within the legal system. If someone is suspected of being unfit to stand trial, swift actions, comprehensive examinations, and detailed evidence are vital to reach a just resolution.