Where experienced counsel raises concerns about an accused's mental state and capacity to give instructions, a judge cannot perfunctorily dismiss those concerns without further inquiry. The duty under s 9 of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) to reserve the question of fitness for investigation is triggered by objective material before the court, including counsel's observations and the accused's behaviour, even without expert psychiatric evidence. On appeal, the question is whether there was a real and substantial question as to fitness, not whether the appellate court is persuaded the accused was in fact unfit.
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