Interpreting R v Presser: a clinician’s guide to contemporary Australian fitness to stand trial case law

Abstract

Forensic mental health clinicians are often tasked with assessing and reporting upon a defendant’s fitness for trial. However, because fitness is a legal construct, not a clinical one, clinicians are often unaware of the impairment thresholds to be found unfit to stand trial. Common law holds that only ‘basic’ abilities are required to be fit in Australia, yet what constitutes basic abilities is not defined in legislation. The following article presents a review of fitness case law and outlines how R v Presser 1 (‘Presser’) has been interpreted in the Australian courts. The seven Presser standards are systematically reviewed to explain what abilities a defendant must possess under each criterion and the degree of impairment required to be found fit or unfit to stand trial, and indicates where proportionality (eg the seriousness of the charge, complexity of the evidence) has been applied to raise or lower the threshold for fitness.