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The question of fitness to plead

4. The starting point is everyone is presumed fit to plead. It is only where upon an investigation occurring the court determines on the balance of probabilities a person is unfit to plead, the presumption of fitness is rebutted: s 312 of the Crimes Act 1900 (ACT).

5. The determination of a lack of fitness is governed by s 311 of the Crimes Act: 311 When a person is unfit to plead (1) A person is unfit to plead to a charge if the person’s mental processes are disordered or impaired to the extent that the person cannot— (a) understand the nature of the charge; or (b) enter a plea to the charge and exercise the right to challenge jurors or the jury; or (c) understand that the proceeding is an inquiry about whether the person committed the offence; or (d) follow the course of the proceeding; or (e) understand the substantial effect of any evidence that may be given in support of the prosecution; or (f) give instructions to the person’s lawyer. (2) A person is not unfit to plead only because the person is suffering from memory loss.

6. Importantly s 311 is worded in such a way that any one of the factors will, if established, warrant a finding of unfitness to plead.

How is s 311 to be applied?

7. In R v Bailiff [2010] ACTSC 54; 5 ACTLR 1 at [9], Penfold J summarised the interaction between ss 311 and 312 of the Crimes Act in this way: Section 311 of the Crimes Act sets out the criteria for determining whether a person is fit to plead, and s 312 of that Act sets out the nature of the inquiry and determination. Both these sections are set out in the Appendix. In summary: (a) A person is presumed to be fit to plead. (b) The presumption is rebutted if it is established that the person is unfit to plead. (c) A person is unfit to plead if his or her mental processes are disordered or impaired such that the person cannot understand, or participate properly in, various specified elements of the normal criminal processes. (d) The question of fitness to plead is a question of fact to be decided on the balance of probabilities, with no party bearing a burden of proof.

8. Section 311 of the Crimes Act is essentially an enactment of the common law test. It was previously encapsulated in s 68 of the Mental Health (Treatment and Care) Act 1994 (ACT). At that time the Tribunal undertook the task of assessing a person’s fitness to plead. The explanatory memorandum for the enactment of the earlier statute provided at 16: In making its determination, the Tribunal is to hold an inquiry and determine on the balance of probabilities whether a person is fit to plead to the charge. Subclause (3) sets out the matters that the Court must be satisfied of before making a determination that a person is fit to plead and incorporates the test from R v Presser [1958] VR 45. If a person is unfit to plead to the charge, the Tribunal shall determine whether or not the person is likely to become fit within 12 months after the determination is made. When notifying the court of its determination, the Tribunal may make recommendations to the Court as to how the person should be dealt with.

9. When the provision was moved into the Crimes Act by the Crimes Amendment Act 2005 (ACT) the explanatory memorandum stated at 4: New section 311 inserts the definition of ‘fitness to plead’ into the Crimes Act 1900. The definition is based on the existing definition in section 68 of the Mental Health (Treatment and Care) Act 1994. A person is unfit to plead to a charge if the person’s mental processes are so disordered or impaired that the person cannot understand the nature of the charge, cannot enter a plea or challenge jurors, cannot understand the nature or course of the proceedings, cannot understand the effect of the evidence that may be given by the prosecution or is not able to give instructions to his or her lawyer.

10. As the Court of Appeal observed in Adams v Director of Public Prosecutions (No 2) [2025] ACTCA 3 at [132]: …the test needs to be applied “in a reasonable and commonsense fashion” and not in any “over-literal sense”: Kesavarajah at 244; Ngatayi at 8; Presser at 48. So applied, the fitness test encapsulated in s 311 of the Crimes Act and like provisions may not be “very difficult” to satisfy: Eastman at [298] (Hayne J).

11. In Eastman v The Queen [2000] HCA 29; 203 CLR 1 the court was dealing with the precursor to s 311 of the Crimes Act in the form of s 68(3) of the Mental Health (Treatment and Care) Act. In that context Gleeson CJ observed at [24]: Unfortunately, it is not unusual for the criminal justice system to have to deal with people with mental disorders; sometimes severe disorders. The existence of the disorder does not, of itself, prevent them from being brought to trial. It certainly does not mean that they must be allowed to be at liberty. It is not to be overlooked, as Deane and Dawson JJ pointed out in Kesavarajah v The Queen, that the usual consequence of a finding that a person is unfit to plead is indefinite incarceration without trial. It is ordinarily in the interests of an accused person to be brought to trial, rather than to suffer such incarceration.

12. His Honour went on to adopt with approval certain criteria enunciated by the Ontario Court of Appeal in R v Taylor (1992) 77 CCC (3d) 551 at 564-565 as “consistent with the statutory test”: (a) The fact that an accused person suffers from a delusion does not, of itself, render him or her unfit to stand trial, even if that delusion relates to the subject-matter of the trial. (b) The fact that a person suffers from a mental disorder which may cause him or her to conduct a defence in a manner which the court considers to be contrary to his or her best interests does not, of itself, lead to the conclusion that the person is unfit to stand trial. (c) The fact that an accused person's mental disorder may produce behaviour which will disrupt the orderly flow of a trial does not render that person unfit to stand trial. (d) The fact that a person's mental disorder prevents him or her from having an amicable, trusting relationship with counsel does not mean that the person is unfit to stand trial.

13. In Roberts v R [2023] NSWCCA 187 at [88] Kirk JA in considering the equivalent New South Wales provision observed application of the legislation “involves a judgement which will almost invariably involve issues of degree. And those issues require reference to the nature of the case, the nature of the impairments, and how those impairments might impact the ability of the accused to receive a fair trial according to law.” The evidence relied on in this case

14. The parties rely entirely upon medical records and opinions. As to the use to be made of medical evidence the court continued in Roberts at [88]: Experts are capable of throwing light on the nature of the impairments and how those would or may have affected the accused. They may also express a view on the relevant criteria and on the ultimate issue of fitness: Evidence Act 1995 (NSW), s 80(a). But their evidence is more likely to be helpful as regards addressing the nature and effects of the impairments than on the ultimate question of fitness. That is so both because the ultimate question is one on which the court must reach its own conclusion and because the issue involves legal nuance.

15. While expert evidence may assist significantly in developing an understanding of how a particular disability will impact on the capacity of the accused person to not only enter a plea, but to deal with the process of the trial itself, the ultimate question of whether a fair trial is achievable is one exclusively for determination by the court.

16. The expert evidence in this case comes from three sources and it is appropriate to deal with the material in a chronological way.

Dr Christopher Lennings

17. Dr Lennings is a forensic psychologist with extensive experience both as a clinician and an academic. His experience extends to the field of sexual abuse, where he has worked as a researcher and a clinician with survivors, their families and with perpetrators. Dr Lennings’ involvement was in undertaking an assessment of Mr Jacobs in the police record of interview in which he participated in May 2024. His report was then relied upon in a successful application heard before Kelly AJ to exclude the police record of interview from the evidence in this case. In undertaking his assessment, Dr Lennings arranged for Mr Jacobs to be subject to a bank of testing of his cognitive functioning. The testing was performed by another forensic psychologist based in Canberra, Ms Leesa Morris. In addition, Mr Jacobs was required to complete an online test of executive functioning. The test results obtained by Ms Morris and the online test results were then interpreted by Dr Lenning for the purpose of his report.

18. Ms Morris reported when the testing was scheduled to occur on 26 August 2025 Mr Jacobs was “effectively monosyllabic” and “could not summon the energy to formulate answers to questions such that he could not be scored on multiple verbal items”. As no IQ result could be generated, Ms Morris restricted testing to the four core tests; even on these Mr Jacobs was unable to complete them to a level permitting calculation of a scale score. To the extent results were available, Dr Lennings concluded Mr Jacobs was suffering “significant disturbance of executive function”. To give meaning to the term significant he indicated that compared with other people of his gender and age Mr Jacobs was more impaired than 98% or 99% of those people. Dr Lennings considered it likely Mr Jacobs was suffering a gross impairment of cognitive function. He also considered it likely the impairment had accelerated since the time of the police interview approximately 15 months earlier. As to the police interview itself Dr Lennings assessed Mr Jacobs as “failing to comprehend the gravity of his situation”. Dr Lennings concludes at p 25 of his report: Although [Mr Jacobs] satisfies Presser criteria in many of its elements, his ability to provide a defence and to follow a trial especially if lengthy or to comment on any evidence led is likely to be highly compromised. Some evaluation of his capacity to engage in these activities needs to be done and is best done through neurocognitive assessment.

19. The last recommendation for neurocognitive assessment has not been pursued. Such testing consists of a clinical interview process and assessment of standardised tasks to gain a measure of brain function. Based on the more recent assessment undertaken by Ms Morris the parties have not unreasonably formed the view Mr Jacobs is simply incapable of participating in a neurocognitive testing process.

Ms Leesa Morris

20. Mr Jacobs was again assessed by Ms Morris on 4 February 2026, approximately six months after her earlier assessment, and she produced a report dated 20 February 2026.

21. Ms Morris noted: (a) minimal eye contact, generally due to flinching and exhaustion; (b) continuous tremors in the arms, hands and neck (as observed on the previous assessment) with a new symptom of spasms throughout the body. She was satisfied the symptoms were entirely involuntary; (c) Mr Jacobs was largely monosyllabic (as before); (d) questions often had to be repeated multiple times before Mr Jacobs was able to answer. His limited responses required questions to be simplified or adapted; (e) whereas at the time of the previous assessment his wife had indicated that Mr Jacobs had good days and bad days on this occasion she indicated “it’s more just bad days now”; (f) Ms Morris attempted to apply the “Montréal cognitive assessment”, a rapid screening test for cognitive dysfunction associated with conditions such as dementia and Alzheimer’s disease. Portions of the test were unable to be completed due to tremors. In relation to those that were completed, Mr Jacobs’ performance was described as poor; (g) Mr Jacobs responded in the negative to the following specific questions: (i) Do you know what you have been charged with? (ii) Do you know why you’re going to court? (iii) Do you remember being interviewed by police? (iv) Do you remember what you talk to your lawyer about? (h) when asked about the role of the judge, Mr Jacobs initially responded “judge” and when asked to find a different word he said “decide”. He was unable to articulate what it was that a judge had to decide. He was unable to distinguish between the role of judge and jury. In response to a question about the role of the prosecutor, Mr Jacobs said “work”. When asked what work, he said “law”. Mr Jacobs gave the same response in relation to the role of the defence lawyer. When asked if he recalled he was charged with sexual assault he answered negatively; (i) Mr Jacobs’ communication skills had again deteriorated in the six months between Ms Morris’ assessments. Ms Morris noted Mr Jacobs’ symptoms of his Parkinson’s had also progressed and he presented as frail and exhausted physically.

22. Ms Morris noted the history of first signs of Parkinson’s disease emerging in August 2024 with the diagnosis confirmed by a neurologist in February 2025. At that time the neurologist recorded evidence of confused thinking. Ms Morris concluded: At his first presentation in August 2025, [Mr Jacobs] presented as a frail man who was quite advanced in his Parkinson’s symptoms. Despite this, he was able to engage in some humour and provide three to four-word strings where necessary. In February 2026, [Mr Jacobs] presents as frailer but now almost completely exhausted by constant movement of his body.

23. As to his progression she said “[Mr Jacobs] had become too unwell to engage in standard cognitive testing. Six months after that, [Mr Jacobs] was too unwell to engage in simplified dementia testing. This aligns with the known progression of Parkinson’s disease.”

24. It was the opinion of Ms Morris that Mr Jacobs had progressed to dementia, “a reality for around 80% of Parkinson’s patients. Neither condition is recoverable. Both conditions impact Mr Jacobs’ ability to maintain focus, plan, organise and evaluate information, recall details, learn and manipulate new information, and be aware of the impact of his actions.”

25. Relevantly in assessing the criteria in s 311 of the Crimes Act Ms Morris expressed the following opinions regarding Mr Jacobs’ mental functioning: (a) he is unlikely to be able to hold details in his mind for long; (b) he is unlikely to be able to manage details of more than one charge at a time; (c) his ability to conceptualise a jury trial is likely to be significantly impaired; (d) his lack of memory confuses his capacity to reason; (e) he is highly susceptible to suggestion; (f) he would probably understand simplified explanations from his lawyer about what is happening but would be unlikely to retain them; and (g) he would be unlikely to have the capacity to attend events for any sustained period. He notably faltered after around 30 minutes in each of her assessments.

Dr Joel Lai

26. Dr Lai appears to be a member of the University of Canberra Hospital geriatric medicine team. Whether or not he has specialist qualifications, and if so the nature of those qualifications, is not apparent from the report in evidence before me, which is a report from Dr Lai directed to a general practitioner dated 16 June 2026. The report contains the most recent assessment of Mr Jacobs’ condition. Dr Lai notes a diagnosis of advanced Parkinson’s disease with associated notable non-motor symptoms including, relevantly, visual hallucinations and cognitive impairment with short term memory loss manifesting as repetitiveness. Dr Lai observed a range of significant physical symptoms including prominent slow movement, difficulty initiating physical actions and “large amplitude jerky limb movements”. Mr Jacobs was noted to be “significantly hypophonic”, referring to an abnormally weak or breathy voice due to an inability to coordinate vocal musculature. He struggled to state his name and date of birth. Because of his continual jerking movements, cognitive assessment in the form of diagnostic brain scanning was unable to take place.

Is Mr Jacobs unfit to plead?

27. Mr Jacobs submits, and the prosecution accepts, with particular reference to sub-ss 311(1)(c), (d), (e) and (f) of the Crimes Act, that Mr Jacobs should be found unfit to plead. Mr Jacobs highlights the very significant physical and cognitive limitations identified by Ms Morris in her February assessment and the evident further deterioration in Mr Jacobs’ condition between that assessment and the assessment undertaken by Dr Lai in June 2026.

28. Mr Jacobs’ memory has clearly deteriorated over the period between his police interview in May 2024 and the assessment by Ms Morris in February 2026. His lack of memory of relevant events is of itself insufficient to support a conclusion that he is unfit to plead. The fact of an accused person’s inability to recall particular events, when confronted with allegations based on a complainant’s clear memory of those events, does not prevent a fair trial from occurring as the capacity to test the factual assertions of the claimant remains. The difficulty in the case of Mr Jacobs is the combination of his poor memory with his diagnosed vulnerability to suggestion. As Ms Morris observed, that is a combination which leaves him open to confusion about whether asserted events in fact occurred, significantly impairing his capacity to challenge actions attributed to him. That is a disability which to my mind fits the description of a disordered mental process. It is a disability which leads me to conclude Mr Jacobs will be unable to understand the substantial effect of any evidence that may be given in support of the prosecution case.

29. I have also had particular regard to the response of Mr Jacobs to direct questioning from Ms Morris regarding various stakeholders in the trial process. The responses in concert with the balance of impaired cognitive functions identified in her report lead me to conclude Mr Jacobs will be unable to follow the course of the proceeding.

30. For the reasons given above I am satisfied Mr Jacobs is unfit to plead at least to the extent identified by sub-ss 311(1)(d) and (e) of the Crimes Act. As a demonstrated lack of fitness in respect of any one of the categories in s 311 is sufficient to rebut the presumption in s 312 of a fitness to plead, a lack of fitness in respect of the identified categories is sufficient.

31. Relying on the medical evidence concerning the progression of his condition over the period since the police interview, and the likelihood of further deterioration, I am satisfied for the purposes of s 315A(4) of the Crimes Act, Mr Jacobs is unlikely to become fit to plead in the next 12 months. .

I certify that the preceding thirty-one [31] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Muller. Associate: MG Malouf Date: 22 July 2026