Victorian Consolidated Legislation

Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 - SECT 16

Procedure at special hearings

16. Procedure at special hearings



(1) A special hearing is to be conducted as nearly as possible as if it were a
criminal trial and, for that purpose, the Juries Act 2000 applies, subject to
this section.

(2) Without limiting subsection (2), at a special hearing-

   (a)  the defendant must be taken to have pleaded not guilty to the offence;
        and

   (b)  the defendant's legal representative (if any) may exercise the
        defendant's rights to challenge jurors (either for cause or
        peremptorily) or the jury;

   (c)  the defendant may raise any defence that could be raised if the
        special hearing were a criminal trial, including the defence of mental
        impairment;

   (d)  the rules of evidence apply;

   (e)  section 360A of the Crimes Act 1958 (adjournment or stay of trial)
        applies as if the special hearing were a criminal trial;

   (f)  any alternative verdict that would be available if the special hearing
        were a criminal trial is available to the jury.

(3) At the commencement of a special hearing, the judge must explain to the
jury-

   (a)  that the defendant is unfit to be tried in accordance with the usual
        procedures of a criminal trial; and

   (b)  the meaning of being unfit to stand trial; and

   (c)  the purpose of the special hearing; and

   (d)  the findings that are available; and

   (e)  the standard of proof required for those findings.