CRIMINAL LAW CONSOLIDATION ACT 1935 - SECT 269N

CRIMINAL LAW CONSOLIDATION ACT 1935 - SECT 269N

269N—What happens if trial judge decides to proceed first with trial of objective elements of offence

If the trial judge decides to proceed first with the trial of the objective elements of the offence, the court proceeds as follows.

A—Trial of objective elements of offence

        (1)         The court must first hear evidence and representations put to the court by the prosecution and the defence relevant to the question whether the court should find 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; 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.

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

        (1)         If the court records a finding that the objective elements of the offence are established, 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)         If the court is satisfied on the balance of probabilities that the defendant is mentally unfit to stand trial, 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.

        (4)         If the court is not satisfied on the balance of probabilities that the defendant is mentally unfit to stand trial, the court must proceed with the trial of the remaining issues (or may, at its discretion, re-start the trial).

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

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

            (b)         declare that the defendant is mentally unfit to stand trial, and declare the defendant to be liable to supervision under this Part.