Dismissal of Charges Based on Unsoundness of Mind or Unfitness for Trial

Magistrates have the power to dismiss charges for simple offences if they are reasonably satisfied that the defendant is of unsound mind or unfit for trial.[1] A simple offence is a less serious offence, including some indictable offences, which can be dealt with by the Magistrates Court.[2] This power allows defendants to avoid the lengthy process in the Mental Health Court.

For example, the following charges (not limited to) may be dismissed by the Magistrate under this power:

  • Public nuisance
  • Assault or obstruct a police officer
  • Drink driving
  • Assault occasioning bodily harm
  • Trespassing

The decision to dismiss charges

A person charged with an offence is of ‘unsound mind’ if they do not have the capacity to understand or control their actions, or know that they should not act in the manner constituting the offence.[3] This lack of capacity must arise primarily due to mental health or disability, even if the person was intoxicated at the time of the offence.[4] A person may be found unfit to plead and stand trial if they cannot understand the significance of telling the truth in court, comprehend the nature of the charge or instruct their solicitor.[5]

Reasonable satisfaction has not been defined by statute, but it is considered to mean ‘clear and convincing evidence’ is present to support the decision.[6] Magistrates are not restricted by the requirement that the dismissal must only occur in exceptional or extreme circumstances.[7]

In making a decision regarding dismissal, Magistrates may be provided a report from the Court Liaison Service outlining the defendant’s antecedents, mental health and cognitive disability.[8] Court Liaison Service is a part of Queensland Health and is a free service, however defendants may also engage independent experts to provide similar reports. If the person is unfit for trial but is likely to become fit within 6 months, the Magistrate may adjourn the hearing.[9]


Consequences of dismissal

If the Magistrate dismisses the charges, the person is discharged and cannot be further prosecuted for the relevant offending.[10]

Once the charge is dismissed, the Magistrate may refer the person to a disability services agency or the health department if they do not also have a mental illness.[11] The Magistrate can also make an ‘examination order’ if they are reasonably satisfied the person would benefit from being examined by an authorising doctor.[12] The doctor may then make or vary a treatment authority for the person and recommendations for the person’s voluntary treatment or care.[13] More information about treatment authorities can be found here.

This process is a useful tool for diverting people with mental illnesses and/or cognitive disability from the criminal justice system at an early stage. It assists the rehabilitation of offenders rather than simply punishing them where there are clear underlying issues to be resolved associated with their ‘criminal’ behaviour.


How Robertson O’Gorman can help

If you are unwell and cannot recall the circumstances around the alleged offending and/or have a mental health illness or cognitive disability Robertson O’Gorman can assist you by:

  • Providing you with legal advice regarding your options, including applying for a dismissal of charges
  • Assisting you in obtaining a report from the Court Liaison Service
  • Referring you to an independent expert who can provide supporting documents for your application to dismiss your charges
  • Corresponding with the prosecutor and advocating on your behalf in Court

Call us today on 3034 0000 or log an enquiry through our Free Case Appraisal.


[1] Mental Health Act 2016 (Qld) ss 22, 172; Magistrates Court Practice Direction No 1 of 2017.

[2] Mental Health Act 2016 (Qld) s 172; Justices Act 1886 (Qld) s 4.

[3] Mental Health Act 2016 (Qld) sch 2; Criminal Code (Qld) s 27.

[4] Mental Health Act 2016 (Qld) sch 2; Criminal Code (Qld) s 27; JKO v Queensland Police Service [2018] QMC 4.

[5] Mental Health Act 2016 (Qld) sch 2; R v Presser [1958] VR 45.

[6] RRK v Queensland Police Service [2019] QDC 176, [19].

[7] RRK v Queensland Police Service [2019] QDC 176, [17].

[8] Queensland Health, Court Liaison Service (Chief Psychiatrist Policy, 15 April 2020) 5


[9] Mental Health Act 2016 (Qld) s 173.

[10] RRK v Queensland Police Service [2019] QDC 176, [18].

[11] Mental Health Act 2016 (Qld) s 174.

[12] Mental Health Act 2016 (Qld) s 177.

[13] Mental Health Act 2016 (Qld) s 177.