New South Wales Consolidated Acts

MENTAL HEALTH AND COGNITIVE IMPAIRMENT FORENSIC PROVISIONS ACT 2020 - SECT 42

42 When an inquiry is required or may not be held

(1) The court must conduct an inquiry to determine whether a defendant is unfit to be tried for an offence if--

(a) the court determines that an inquiry should be conducted before the defendant is arraigned on a charge in respect of the offence and does not subsequently determine that the inquiry is not needed, or

(b) the question of the defendant's unfitness to be tried is raised after the defendant is arraigned on a charge in respect of the offence.

(2) The inquiry is to be held as soon as practicable after the court makes the determination or the question is raised after arraignment.

(3) Despite subsection (1), the court is not required to hold an inquiry unless it appears to the court that the question of the defendant's unfitness to be tried for the offence has been raised in good faith.

(4) Despite subsection (1), the court may determine not to hold an inquiry, dismiss the charge and order that the defendant be released if it is of the opinion, having regard to any of the following, that it is inappropriate to inflict any punishment--

(a) the trivial nature of the charge or offence,

(b) the nature of the defendant's mental health impairment or cognitive impairment,

(c) any other matter the court thinks proper to consider.