Double standards: Standards of proof for persons found unfit for trial

This article examines the laws surrounding whether a court has to be satisfied that a person who is unfit for trial committed an offence. Currently in Western Australia, Queensland, the Commonwealth and New Zealand, there is one standard of proof for persons who are fit for trial and a different, or no, standard of proof for persons found unfit. In particular, in Western Australia and Queensland, courts do not have to be satisfied to any standard of proof that a person who is unfit for trial committed an offence. This practice is of concern as unfit persons in these jurisdictions may be subject to custody orders or be involuntarily detained without having been convicted of an offence. The legislation in these jurisdictions is compared with the legislation in the remaining Australian jurisdictions where courts need to be satisfied beyond reasonable doubt that a person who is unfit for trial committed the conduct or objective elements of the alleged offence.