Section 613 of the Criminal Code 1899 (Qld) cannot be automatically engaged and remain engaged when the accused wilfully refuses to submit to an examination to clarify the issue of fitness for trial. The trial judge retains the role of determining the threshold question of whether a 'real question' arises as to the accused's capacity, and may proceed to trial where the accused's own observations and conduct demonstrate understanding of the proceedings, notwithstanding borderline intellectual functioning. A difference in defence strategy between pre-trial proceedings conducted by a solicitor and trial proceedings conducted by a lay person does not necessarily constitute an inconsistency giving rise to a miscarriage of justice.
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