Prepare the fitness-to-be-tried issues against the statutory test
Key facts
- Human involvement
- RedLawyer-led
- How AI is used
- From the clinical material the lawyer selects, list the facts that touch each limb of the section 36 fitness test: understanding the offence, pleading to the charge, challenging jurors, understanding the proceeding as an inquiry into whether the person committed the offence, following the course of the proceeding, understanding the substantial effect of the evidence, making a defence or answer, instructing the lawyer with the person's account, and deciding the defence and communicating it. Also list the section 44(5) matters: whether the trial can be modified or assistance given, the likely length and complexity, and whether the person is represented. Do not say whether the person is unfit, and do not write a submission.
- What the lawyer must review
- The lawyer decides fitness and writes anything put to the court. Part 4 of the Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW) applies to criminal proceedings in the Supreme Court and the District Court, including the Supreme Court's summary jurisdiction. Section 36 says a person is unfit if, because of a mental health impairment or cognitive impairment or both, or for another reason, they cannot do one or more of those things. The question is decided on the balance of probabilities, by a judge alone, and the inquiry is not adversarial. The onus does not rest on any party. It should be raised before arraignment where practicable, but may be raised later, and more than once. The court need not hold an inquiry unless the question appears to be raised in good faith. If the person is found unfit, the court must also decide whether they may, or will not, become fit within 12 months. A finding that they may become fit is referred to the Tribunal. A finding that they will not is dealt with under Division 3, which is the special-hearing path.
- Written for / version
- US
Open a jurisdiction version of this task to see which instruments apply: US
Who does what
| Role | What they do |
|---|---|
| Assistance | Supporting preparation only. From the clinical material the lawyer selects, list the facts that touch each limb of the section 36 fitness test: understanding the offence, pleading to the charge, challenging jurors, understanding the proceeding as an inquiry into whether the person committed the offence, following the course of the proceeding, understanding the substantial effect of the evidence, making a defence or answer, instructing the lawyer with the person's account, and deciding the defence and communicating it. Also list the section 44(5) matters: whether the trial can be modified or assistance given, the likely length and complexity, and whether the person is represented. Do not say whether the person is unfit, and do not write a submission. The tool writes nothing into the document. Substantive advice, judgement and any restricted content remain with the responsible human. |
| Lawyer | Perform the substantive analysis and decisions. Independently check any permitted supporting work and approve the exact output for its intended use. |
Checklist
- Index clinical material to a section 36 limb. Do not state a conclusion on any limb.
- Confirm the proceeding is in the Supreme Court or the District Court before Part 4 is applied.
- Confirm the lawyer writes any submission, and that the 12-month fitness question is addressed if unfitness is found.
Sources
- Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), compilation in force · 2026-10-22
These are suggested working checks. Confirm the required checking with the responsible lawyer before work starts; the checking approach does not establish permission to use AI.