New South Wales Consolidated Acts

MENTAL HEALTH AND COGNITIVE IMPAIRMENT FORENSIC PROVISIONS ACT 2020 - SECT 44

44 Inquiry procedures

(1) The question of a defendant's unfitness to be tried for an offence is to be determined by the judge alone.

(2) At an inquiry, the defendant is to be represented by an Australian legal practitioner, unless the court otherwise allows.

(3) An inquiry is not to be conducted in an adversarial manner.

(4) The onus of proof of the question of a defendant's unfitness to be tried for an offence does not rest on any particular party to the proceedings.

(5) In addition to any other matter the court may consider in determining whether the defendant is unfit to be tried for an offence, the court is to consider the following--

(a) whether the trial process can be modified, or assistance provided, to facilitate the defendant's understanding and effective participation in the trial,

(b) the likely length and complexity of the trial,

(c) whether the defendant is represented by an Australian legal practitioner, or can obtain representation by an Australian legal practitioner.

Note : The test for determining whether or not a person is unfit to be tried for an offence is set out in section 36.

(6) A determination by the judge must include the principles of law applied by the judge and the findings of fact on which the judge relied.