New South Wales Consolidated Acts

MENTAL HEALTH AND COGNITIVE IMPAIRMENT FORENSIC PROVISIONS ACT 2020 - SECT 56

56 Procedure for special hearings

(1) Trial procedure A special hearing is to be conducted as nearly as possible as if it were a trial of criminal proceedings.

(2) The court may, if it thinks it appropriate in the circumstances of the case, modify court processes to facilitate the effective participation by the defendant in the special hearing.

(3) Representation At a special hearing, the defendant must, unless the court otherwise allows, be represented by an Australian legal practitioner.

(4) The fact that the defendant has been found unfit to be tried for an offence is to be presumed not to be an impediment to the person's representation.

(5) Plea of not guilty The defendant is taken to have pleaded not guilty in respect of the offence charged.

(6) Defences The defendant may raise any defence that could properly be raised if the special hearing were an ordinary trial of criminal proceedings.

(7) Evidence and participation by defendant The defendant is entitled to give evidence.

(8) The court may permit the defendant not to appear, or exclude the defendant from appearing, at a special hearing if the court thinks it appropriate in the circumstances and the defendant or the defendant's Australian legal practitioner agrees.

(9) Judge to try proceedings, unless jury election The question of whether the defendant at a special hearing has committed an offence charged or another offence available as an alternative is to be determined by the judge alone unless an election to have the matter determined by a jury is made by--

(a) the defendant and the court is satisfied that the defendant sought and received advice about the election from an Australian legal practitioner and the defendant understood the advice, or

(b) an Australian legal practitioner representing the defendant, or

(c) the prosecutor.

(10) Right to challenge jurors If a jury is to be constituted, the Australian legal practitioner (if any) representing the defendant may exercise the defendant's rights to challenge the jurors or jury.

(11) Explanation to jury The court must explain the following matters to a jury constituted for the purposes of a special hearing--

(a) the fact that the defendant is unfit to be tried in accordance with the normal procedures,

(b) the meaning of unfitness to be tried,

(c) the purpose of the special hearing,

(d) the verdicts that are available to the jury,

(e) the legal and practical consequences of the verdicts.