Victorian Numbered Acts Victorian Numbered ActsAfter section 14A of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 insert —
(1) This Division applies from 26 April 2021 until section 10 is substituted.
(2) A provision specified in section 5C does not apply while this Division applies.
The question of a person's fitness to stand trial is to be determined on the balance of probabilities by the court at an investigation into the fitness of the accused to stand trial.
(1) At an investigation into the fitness of an accused to stand trial, the court—
(a) must hear any relevant evidence and submissions put to the court by the prosecution and the defence; and
(b) if of the opinion that it is in the interests of justice to do so, may—
(i) call evidence on its own motion; or
(ii) require the accused to undergo an examination by a registered medical practitioner or registered psychologist; or
(iii) require the results of any such examination to be put before the court.
(2) Nothing in subsection (1) prevents the application of Part 3.10 of the Evidence Act 2008 to an investigation and, for the purposes of Part 3.10 of that Act, the investigation is taken to be a criminal proceeding.
(3) Section 232A of the Criminal Procedure Act 2009 applies to an investigation as if the investigation were a trial.
(4) If the court finds that the accused is not fit to stand trial, the court must—
(a) determine, by reference to any relevant evidence and on the balance of probabilities, whether or not the accused is likely to become fit to stand trial within the next 12 months; and
(b) if the court determines that the accused is likely to become fit within the next 12 months, specify the period by the end of which the accused is likely to be fit to stand trial.
(5) For the purposes of subsection (4), the court may call further evidence on its own motion.
At an investigation into the fitness of an accused to stand trial, the court may find—
(a) the accused is fit to stand trial; or
(b) the accused is not fit to stand trial.
(1) If the court finds that the accused is fit to stand trial, the trial must be commenced or resumed in accordance with usual criminal procedures.
(2) If the court finds that the accused is not fit to stand trial but determines that the accused is likely to become fit within the next 12 months, the court must adjourn the matter for the period specified under section 14D(4)(b) and may—
(a) grant the accused bail; or
(b) subject to subsection (3), remand the accused in custody in an appropriate place for a specified period (not exceeding the period specified under section 14D(4)(b)); or
(c) subject to subsection (4), remand the accused in custody in a prison for a specified period (not exceeding the period specified under section 14D(4)(b)); or
(d) make any other order the court thinks appropriate.
(3) The court must not remand an accused in custody in an appropriate place unless it has received a certificate under section 47 stating that the facilities or services necessary for that order are available.
(4) The court must not remand an accused in custody in a prison unless it is satisfied that there is no practicable alternative in the circumstances.
(5) If the court finds that the accused is not fit to stand trial and determines that the accused is not likely to become fit within the next 12 months, the court must hold a special hearing under Part 3 within 3 months and may—
(a) either—
(i) grant the accused bail; or
(ii) subject to subsections (3) and (4), remand the accused in custody as described in subsection (2)(b) or (c); and
(b) make any other order the court thinks appropriate.
(1) At any time during a period of adjournment under section 14F(2), the accused or the Director of Public Prosecutions may apply to the court—
(a) for an order that the trial commence or resume, if the accused or the Director of Public Prosecutions is of the opinion that the accused has become fit to stand trial; or
(b) for an order that the court proceed to hold a special hearing, if the accused or the Director of Public Prosecutions is of the opinion that the accused will not become fit to stand trial by the end of the period of 12 months after the first finding of unfitness.
(2) An application under subsection (1) must be accompanied by a report on the mental condition of the accused by a registered medical practitioner or registered psychologist.
(3) On an application under subsection (1) the court must—
(a) dismiss the application; or
(b) if satisfied that the accused has become fit to stand trial, make an order that the trial commence or resume; or
(c) if satisfied that the accused will not become fit to stand trial by the end of the period of 12 months after the first finding of unfitness, make an order that the court proceed to hold a special hearing within 3 months.
(1) At the end of the period of adjournment under section 14F(2), the accused is presumed to be fit to stand trial unless a real and substantial question of fitness is raised again.
(2) If a real and substantial question of fitness is raised again, the court must—
(a) extend the period of adjournment for a further period, but not so that the total period since the first finding of unfitness exceeds 12 months; or
(b) proceed to hold a special hearing under Part 3 within 3 months.
(3) If the court extends the period of adjournment, the court may make any order referred to in section 14F(2) or vary any order already made under that section and for that purpose section 14F(3) and (4) apply accordingly.
(4) At the end of the period of adjournment—
(a) if the trial of the accused has commenced, it must be resumed as soon as practicable in accordance with usual criminal procedures; or
(b) subject to subsection (5), if the trial has not commenced, it must be commenced within 3 months.
(5) The court before which the accused is to be tried may at any time, whether or not the period referred to in subsection (4)(b) has expired, extend that period for a further period not exceeding 3 months.
(6) The period for commencement of a trial may be extended under subsection (5) more than once.
(7) An extension of time under subsection (5) also serves, if necessary, as an extension of time for the purposes of section 211 or 212 of the Criminal Procedure Act 2009 (as the case may be).
(1) In a criminal proceeding in the County Court or the Trial Division of the Supreme Court, if the question has arisen whether an accused is unfit to stand trial and on an investigation under this Division a court finds that the accused is unfit to stand trial, the accused may appeal to the Court of Appeal against the finding on any ground of appeal, with leave of the Court of Appeal.
(2) An application for leave to appeal under subsection (1) is commenced by filing a notice of application for leave to appeal in accordance with the rules of court within 28 days after the day on which the finding is made or any extension of that period granted under section 76C.
(3) The Registrar of Criminal Appeals of the Supreme Court must provide to the respondent a copy of the notice of application for leave to appeal within 7 days after the day on which the notice of application is filed.
(4) On an appeal under subsection (1), the Court of Appeal must allow the appeal if the appellant satisfies the court that—
(a) the finding of unfitness to stand trial is unreasonable or cannot be supported having regard to the evidence; or
(b) the trial judge made a material error of law; or
(c) for any other reason the court considers that the finding should not stand.
(5) In any other case, the Court of Appeal must dismiss an appeal under subsection (1).
(6) If the Court of Appeal allows an appeal under subsection (1), it must set aside the finding of unfitness to stand trial and either—
(a) refer the matter to the Trial Division of the Supreme Court or to the County Court for trial and the accused may be tried for the offence charged against the accused; or
(b) remit the matter for a rehearing of the investigation under this Division as to whether the accused is fit to stand trial.
(7) Despite subsection (6), if the Court of Appeal allows an appeal under subsection (1) but considers that the accused is unfit to stand trial, it may affirm the finding and refer the matter to the Trial Division of the Supreme Court or to the County Court.
(8) If the Court of Appeal remits a matter under subsection (6)(b)—
(a) it may give directions concerning the manner and scope of the rehearing, including a direction as to whether the rehearing is to be conducted by the same judge or a different judge; and
(b) the court conducting the rehearing, whether constituted by the same judge or a different judge, must hear and determine the matter in accordance with the directions, if any.
(9) On remitting or referring a matter under this section, the Court of Appeal may remand the accused in custody or grant bail to the accused or make any other order that the court considers appropriate for the safe custody of the accused.
For the purposes of the definition of criminal trial in section 3 of the Juries Act 2000 , criminal trial does not include an investigation conducted in accordance with this Division.
This Division is repealed on the day that section 10 is substituted.".