CRIMINAL LAW CONSOLIDATION ACT 1935 - SECT 269M

CRIMINAL LAW CONSOLIDATION ACT 1935 - SECT 269M

269M—What happens if trial judge decides to proceed first with trial of defendant's mental fitness to stand trial

If the trial judge decides that the defendant's mental fitness to stand trial is to be tried first, the court proceeds as follows.

A—Trial of defendant's mental fitness to stand trial

        (1)         The court—

            (a)         must hear relevant evidence and representations put to the court by the prosecution and the defence on the question of the defendant's mental fitness to stand trial; and

            (b)         may require the defendant to undergo an examination by a psychiatrist or other appropriate expert and require the results of the examination to be reported to the court.

        (2)         The power to require an examination and report under subsection (1)(b) may be exercised—

            (a)         on the application of the prosecution or the defence; or

            (b)         if the judge considers the examination and report necessary to prevent a possible miscarriage of justice—on the judge's own initiative.

        (3)         At the conclusion of the trial of the defendant's mental fitness to stand trial, the court must decide whether it has been established, on the balance of probabilities, that the defendant is mentally unfit to stand trial and—

            (a)         if so—must record a finding to that effect;

            (b)         if not—must proceed with the trial in the normal way.

        (5)         The court may, if the prosecution and the defence agree—

            (a)         dispense with, or terminate, an investigation into a defendant's fitness to stand trial; and

            (b)         record a finding that the defendant is mentally unfit to stand trial.

B—Trial of objective elements of offence

        (1)         If the court records a finding that the defendant is mentally unfit to stand trial, the court must hear evidence and representations put to the court by the prosecution and the defence relevant to the question whether a finding should be recorded under this section that the objective elements of the offence are established.

        (2)         If the court is satisfied beyond reasonable doubt that the objective elements of the offence are established, the court must record a finding to that effect, and (subject to Division 3A) declare the defendant to be liable to supervision under Division 4 Subdivision 2; but otherwise the court must find the defendant not guilty of the offence and discharge the defendant.

        (3)         On the trial of the objective elements of an offence under this section, the court is to exclude from consideration any question of whether the defendant's conduct is defensible.