In Queensland, when fitness for trial is raised for the first time on appeal, the appellate court must apply the Eastman/Hayne J test: there is a miscarriage of justice if there is a real and substantial question about the accused's fitness, and the appeal may only be dismissed if the court is affirmatively persuaded that no jury, acting reasonably, could conclude the accused was unfit. The 'fresh evidence' analogy does not apply. An accused who gives clear, cogent instructions and understands the proceedings is fit for trial notwithstanding grandiose delusions, even where those delusions cause the accused to go off on tangents or may affect the quality of evidence the accused could give.
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