Read the story from the ABC here:


We are told that the boys were found to be ‘unfit to be tried’ after evidence of their ‘abnormally low intelligence’.   To be ‘fit to be tried’ an accused person has to have sufficient understanding of the process to be able to receive advice from, and give instructions to their lawyers.   It is related to, but not the same as, insanity.

The defence of insanity raises the question of the accused’s competence at the time of the alleged offence.  A person can be insane when they did the act but quite competent by the time they come to stand trial.  Equally a person can be competent and criminal when they do the relevant act, but not capable of standing trial when they later appear in court.

Where a person is ‘not guilty on the grounds of insanity’ the usual result is that they are detained as a ‘forensic patient’ in a mental health institution and it is mental health laws that determine when and if they can rejoin society.  They may end up spending much more time in custody than they would if they were not insane (so people who think ‘pleading insanity’ is the easy option, are kidding themselves, or insane).

Where a person is not fit to be tried, the court has to have a special hearing and the judge has to decide whether he or she is satisfied beyond reasonable doubt that the accused was guilty of the offence at the time.  If so then again the accused can be detained as a ‘forensic patient’.   If the judge cannot be satisfied then the accused is acquitted but will be treated still in accordance with the relevant mental health legislation which can provide for compulsory detention if the person is a risk to themselves or others.   If they are not a risk then there may be community options or even voluntary in-patient treatment.  In the case of a person not capable of giving consent either because of their mental disability or their age, it would be their guardian who would consent to the voluntary in-patient treatment.

In this case, however, we are told the boys were to face a trial but the Crown has dropped all matters ‘on the grounds of insufficient evidence and that it was not in the public interest to proceed.’    Their future care will therefore be in the hands of their parents and relevant mental health and social welfare bodies.  We will never know whether or not they started the fires and if they did whether or not they intended to start the fires or what their motivation or understanding of the likely consequences of their actions was.

Michael Eburn

7 November 2011.