A court may make a finding under this subpart that a defendant is unfit to stand trial at any stage after the commencement of the proceedings and until all the evidence is concluded.

A court may, if it thinks it is in the interests of the defendant to do so, postpone the determination of the question whether a defendant is unfit to stand trial.

However, at a trial, a court may not postpone the determination of that question beyond the stage at which all the evidence is concluded.

When a court postpones the determination of the question whether a defendant is unfit to stand trial, the court may not determine the question if—

The court must receive the evidence of 2 health assessors as to whether the defendant is mentally impaired.

If the court is satisfied on the evidence given under subsection (1) that the defendant is mentally impaired, the court must record a finding to that effect and—

The standard of proof required for a finding under subsection (2) is the balance of probabilities.

If the court records a finding under subsection (2) that the defendant is fit to stand trial, the court must continue the proceedings.

If the court records a finding under subsection (2) that the defendant is unfit to stand trial, the court must inquire into the defendant’s involvement in the offence under section 10, 11, or 12, as the case requires.

This section applies if, before trial, the defendant is found unfit to stand trial.

The court must decide whether the court is satisfied, on the balance of probabilities, that the evidence against the defendant is sufficient to establish that the defendant caused the act or omission that forms the basis of the offence with which the defendant is charged.

For the purposes of subsection (2), the court may consider—

This section applies if, during a Judge-alone trial, the defendant is found unfit to stand trial.

The court must decide whether the court is satisfied, on the balance of probabilities, that the evidence against the defendant is sufficient to establish that the defendant caused the act or omission that forms the basis of the offence with which the defendant is charged.

For the purposes of subsection (2), the court may (whether on the application of a party or on the court’s own initiative) do either or both of the following:

This section applies if, during a jury trial, the defendant is found unfit to stand trial.

The court must decide whether the court is satisfied, on the balance of probabilities, that the evidence against the defendant is sufficient to establish that the defendant caused the act or omission that forms the basis of the offence with which the defendant is charged.

For the purposes of subsection (2), the court may do 1 or more of the following:

When the court has ascertained, in accordance with any of sections 10 to 12, whether the court is satisfied of the matter specified in section 10(2), 11(2), or 12(2), as the case requires, the court must record its finding on the matter.

If the court is not satisfied of the matter specified in section 10(2), 11(2), or 12(2),—

If the court is satisfied of the matter specified in section 10(2), 11(2), or 12(2), as the case requires, the court must deal with the defendant under subpart 3.

The jurisdiction under any of sections 8A and 10 to 13 may be exercised in the absence of the defendant if the court is satisfied that the defendant is too mentally impaired to come to court.

A defendant may appeal against the finding under section 8A(2)(b) that the defendant is unfit to stand trial or, as the case may be, fit to stand trial.

A defendant may appeal against a finding under section 10(2), 11(2), or 12(2) that there is sufficient evidence to establish that the defendant caused the act or omission that forms the basis of the offence with which the defendant is charged.

For the purposes of an appeal under this section,—

If, on an appeal under section 16(1A), the court is satisfied that the evidence against the defendant is not sufficient to establish that the appellant caused the act or omission that forms the basis of the offence with which the appellant is charged, the court must quash the finding appealed against and dismiss the charge against the appellant.

In the case of an appeal under section 16(1) against a finding relating to the appellant’s fitness to stand trial, the court must (except where the charge against the appellant has been dismissed under subsection (1)) consider the evidence of 2 health assessors, and confirm or quash the finding relating to the appellant’s mental impairment.

If the court is satisfied that the appellant is mentally impaired, the court must—

If the result of the appeal is that the appellant is fit to stand trial, the court must remit the case to the High Court or the District Court, as the case may require.

An appellant under section 16 in respect of whom an order of detention has been made under any of sections 23, 24, and 25 may be granted bail in the same manner as if he or she had been convicted and sentenced to imprisonment.

If the appellant is not released on bail, the appellant must be detained in accordance with the order of detention while his or her appeal is pending.

A Judge of the High Court, or the District Court Judge who presided over the court whose decision is appealed against, may make any other order that may be thought fit for the custody of the appellant if the appellant is not released on bail while his or her appeal is pending.

The prosecution may appeal on a question of law against 1 or more of the following findings under this subpart:

The provisions of Part 6 of the Criminal Procedure Act 2011 relating to appeals, so far as they are applicable and with any necessary modifications, apply to an appeal under subsection (1).

If, at a trial, the defendant gives evidence as to his or her insanity and the jury or (if there is no jury) the Judge finds the defendant not guilty on account of his or her insanity, the Judge must record that finding.

Before or at a trial, the Judge must record a finding that the defendant is not guilty on account of his or her insanity if—

If, at a trial before a jury, the defendant gives evidence as to his or her insanity and the jury finds the defendant not guilty, the Judge must ask the jury whether or not it has acquitted the defendant on account of his or her insanity.

In a case where it appears from the evidence that the defendant may have been insane at the time of the commission of the offence, the Judge may ask the jury to find whether the defendant was insane within the meaning of section 23 of the Crimes Act 1961, even though the defendant has not given evidence as to his or her insanity or put the question of his or her sanity in issue.

A defendant who is acquitted on account of his or her insanity may appeal against the verdict or decision, and, for the purposes of such an appeal,—

On such an appeal, the court may—

If the court thinks that (except for the appellant’s insanity) the proper verdict or decision would have been that the appellant was guilty of an offence other than the offence charged, the court—

If, on such an appeal, the appellate court is satisfied that the finding of insanity ought not to stand, and is satisfied that, in the absence of such a finding, the proper verdict or decision would have been that the appellant was guilty of an offence (whether of the offence charged or any other offence of which the appellant could have been found guilty at the trial), the appellate court—

Unless the appellate court otherwise directs, the term of any sentence of imprisonment passed by it under subsection (4) begins to run as if passed on the date on which the verdict or decision appealed against was given.

An appellant under section 21 in respect of whom an order of detention has been made under any of sections 23, 24, and 25 may be granted bail in the same manner as if he or she had been convicted and sentenced to a term of imprisonment.

If the appellant is not released on bail, the appellant must be detained in accordance with the order of detention while his or her appeal is pending.

The court hearing the appeal, or the Judge who presided at the trial, may make any other order that may be thought fit for the custody of the appellant if the appellant is not released on bail while his or her appeal is pending.

When a person is found unfit to stand trial or is acquitted on account of his or her insanity, the court must order that inquiries be made to determine the most suitable method of dealing with the person under section 24 or section 25.

For the purposes of the inquiries under subsection (1), the court must either—

Despite any provision in the Bail Act 2000, in deciding whether or not to grant bail for the purposes of subsection (2)(a), the need to protect the public is the paramount consideration.

The inquiries under subsection (1) must be completed as quickly as practicable and, in any event, within 30 days after the date of the order under which the inquiries are made.

A person who has an intellectual disability must, during the period in which the inquiries are made under subsection (1), be assessed under Part 3 of the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003.

When the court has sufficient information on the condition of a defendant found unfit to stand trial or acquitted on account of his or her insanity, the court must—

The orders referred to in subsection (1) are that the defendant be detained—

Before the court makes an order specified in subsection (2)(a), the court must have received evidence, under subsection (1)(b), about the defendant from at least 1 health assessor who is a psychiatrist.

If, after considering the matters specified in section 24(1)(a) and (b) concerning a defendant found unfit to stand trial or acquitted on account of his or her insanity, the court is not satisfied that an order under section 24(2) is necessary, the court must deal with the defendant—

Before the court makes an order under subsection (1)(a), the court must be satisfied on the evidence of 1 or more health assessors (at least 1 of whom must be a psychiatrist) that the defendant is mentally disordered.

Before the court makes an order under subsection (1)(b), the court must be satisfied on the evidence of 1 or more health assessors that the defendant—

In the exercise of its powers under subsection (1), the court may take into account any undertaking given by, or on behalf of, the defendant that the defendant will undergo or continue to undergo a particular programme or course of treatment.

An order made under section 25(1)(a) is to be regarded as a compulsory treatment order for the purposes of the Mental Health (Compulsory Assessment and Treatment) Act 1992, and, in making the order, the court must specify whether, for the purposes of that Act, the order takes effect as a community treatment order or as an inpatient order.

An order made under section 25(1)(b) is to be regarded as a compulsory care order for the purposes of the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003, and, in making the order, the court must—

When the court makes an order under section 25, or a decision under section 25(1)(c), in respect of a defendant who has been found unfit to stand trial, the court may order that the proceedings in which that finding was made are stayed.

While a stay of proceedings ordered under subsection (1) is in force, the defendant in the proceedings may not be charged again with an offence with which he or she was charged in those proceedings.

When a sentence of imprisonment is imposed on an offender who is, or subsequently becomes, subject to an order of detention under section 24, the sentence runs during the currency of the order and any period during which the offender is a patient or care recipient.

Subsection (1) does not apply while the offender is absent without authority from the hospital or facility in which he or she is required to be detained.

If the offender is still liable to be detained under a sentence of imprisonment when the offender is discharged from the hospital or facility in which the offender is detained in accordance with an order under section 24 or as a patient or care recipient, the chief executive of the Department of Corrections must arrange for the offender to be taken to a prison or other appropriate place to serve the remainder of the sentence.

If the court makes an order or a decision under section 24 or section 25 or section 27, the defendant and the prosecution have the same right of appeal against the order or decision as the defendant or, as the case requires, the prosecution would have if the order or decision were a sentence.

The provisions of Part 6 of the Criminal Procedure Act 2011 relating to appeals, so far as they are applicable and with any necessary modifications, apply to the appeal.

On such an appeal, the court may—

The maximum period for which a defendant who has been found unfit to stand trial can be detained under section 24 as a special patient or a special care recipient is—

If the defendant was charged with more than 1 offence, the relevant offence for the purposes of subsection (1)(b) is the offence punishable by the longest term of imprisonment.

An order under section 24 in respect of a defendant who has been found unfit to stand trial continues in force during the maximum period specified in subsection (1) until—

Subsection (3) is subject to sections 84 and 128 of the Mental Health (Compulsory Assessment and Treatment) Act 1992 or to section 105 of the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003, as the case may require.

An order under section 24 is to be treated as cancelled if every charge brought against the defendant in the proceedings in which the order was made is withdrawn or dismissed.

This section applies to a defendant who has been found unfit to stand trial and who is detained as a special patient or as a special care recipient in accordance with an order under section 24 (the defendant).

If, before or on the expiry of the relevant maximum period specified in section 30, a certificate is given under the Mental Health (Compulsory Assessment and Treatment) Act 1992 or the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003 to the effect that the defendant is no longer unfit to stand trial, the Attorney-General must either—

If, at any time before the expiry of the relevant maximum period specified in section 30, a certificate is given under the Mental Health (Compulsory Assessment and Treatment) Act 1992 or the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003 to the effect that, although the defendant is still unfit to stand trial, the continued detention of the defendant under section 24 is no longer necessary, the Minister of Health, acting with the concurrence of the Attorney-General, must—

The Attorney-General must direct that the defendant be held as a patient or, as the case requires, as a care recipient if—

A direction under this section—

The powers and duties conferred and imposed on the Attorney-General by this section are not capable of being exercised or performed by the Solicitor-General.

When a direction is given under section 31 that a defendant be held as a patient or, as the case requires, as a care recipient,—

This section applies to a defendant who has been acquitted on account of his or her insanity and who is detained as a special patient or a special care recipient in accordance with an order under section 24 (the defendant).

The order under which the defendant is detained continues in force until—

If, at any time while the order continues in force, a certificate is given under the Mental Health (Compulsory Assessment and Treatment) Act 1992 or the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003 to the effect that the defendant’s continued detention under the order is no longer necessary to safeguard the interests specified in subsection (4), the Minister of Health must—

The interests referred to in subsection (3) are—

A direction under this section—

If the court is satisfied of the matters specified in subsection (2), the court may deal with an offender who is convicted of an imprisonable offence—

For the purposes of subsection (1), the court must be satisfied, on the evidence of 1 or more health assessors, that the offender’s mental impairment requires the compulsory treatment or compulsory care of the offender either in the offender’s interest, or for the safety of the public or for the safety of a person or class of person.

Before the court makes an order under subsection (1)(a)(i) or (b)(i), the court must be satisfied on the evidence of 1 or more health assessors (at least 1 of whom must be a psychiatrist) that the defendant is mentally disordered.

Before the court makes an order under subsection (1)(a)(ii) or (b)(ii), the court must be satisfied on the evidence of 1 or more health assessors that the defendant—

No order may be made under this section in respect of an offender who is, at the time of the conviction, subject to a sentence of imprisonment.

When a court proposes to make an order under section 34 in respect of a person, the court must order that inquiries be made to determine the most suitable method of dealing with the person.

For the purposes of the inquiries under subsection (1), the court must either—

The inquiries under subsection (1) must be completed as quickly as practicable and, in any event, within 30 days after the date of the order under which the inquiries are made.

A person who has an intellectual disability must, during the period in which the inquiries are made under subsection (1), be assessed under Part 3 of the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003.

An order under section 34(1)(b)(i) is to be regarded as a compulsory treatment order for the purposes of the Mental Health (Compulsory Assessment and Treatment) Act 1992, and, in making the order, the court must specify whether, for the purposes of that Act, the order takes effect as a community treatment order or as an inpatient order.

An order under section 34(1)(b)(ii) is to be regarded as a compulsory care order for the purposes of the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003, and, in making the order, the court must—

When a person is in custody at any stage of a proceeding against the person, whether before or during the hearing or trial, or while awaiting sentence or the determination of an appeal, a court may, on the application of the prosecution or the defence or on its own initiative, order that a health assessor prepare an assessment report on the person for the purpose of assisting the court to determine 1 or more of the following matters:

If a court orders that an assessment report on a person be prepared under subsection (1), the court may—

No order may be made under subsection (2)(b) or (c) in respect of a person if—

If the court makes an order under subsection (2)(c) for a person’s detention and assessment in a hospital or secure facility, it must record the reasons why it would have been inappropriate to order the detention of the person in a prison for that assessment.

Subsection (1)—

On making an order under section 38(1) that a health assessor prepare an assessment report or at any time while a matter for which the report is required remains to be determined, the court may direct that another health assessor provide a second opinion on the person to whom the report relates (the subject).

Unless the court otherwise directs, every order under section 38(1) is deemed to include a direction that, in preparing the assessment report on the subject, the health assessor consult, wherever practicable, with the following persons about the subject’s condition and background:

The period for which a person may be detained under an order made under section 38(2)(b) or (c) may, from time to time, be extended with the consent of the person or the person’s guardian, but the total period of detention under the order may not exceed 30 days.

It is not necessary for a person subject to detention to be present when the period of detention is extended under subsection (1), as long as the person is represented by counsel.

A person who is detained in a prison under an order made under section 38(2)(b) may, from time to time, be taken by, or under the direction of, the manager of the prison to a hospital, facility, or other appropriate place for the purposes of examination, and may also be taken back to the prison by, or under the direction of, that manager.

A person who is taken to a hospital, facility, or place under subsection (1) may not stay in the hospital, facility, or place overnight.

A person who is being examined in a hospital, facility, or place continues to be in legal custody under the Corrections Act 2004, even though the person is absent from the prison in which he or she is detained.

Even though a person has not yet been detained in a hospital or secure facility for the full period specified in an order under section 38(2)(c), the person may be transferred at the direction of the Director of Area Mental Health Services for the hospital or the co-ordinator for the secure facility to court or penal or Police custody for 1 or more of the purposes specified in subsection (3).

If the assessment report on a person is sent to the court before the expiry of the period for which a person has been ordered to be detained in a hospital or secure facility under section 38(2)(c), the person must be transferred at the direction of the Director of Area Mental Health Services for the hospital or the co-ordinator for the secure facility to court or penal or Police custody for 1 or more of the purposes specified in subsection (3).

The purposes for transferring a person to court or penal or Police custody, referred to in subsection (1) or subsection (2), are—

The transfer of a person under subsection (1) or subsection (2) to court or penal or Police custody is sufficient authority for the detention of the person in that custody until the expiry of the period for which the person has been ordered to be detained in a hospital or secure facility under section 38(2)(c).

An order under section 23 or section 35 or section 38(2)(c) for the detention of a person in a hospital or secure facility is authority for the administration to the person of any medical treatment or procedure to which the person consents.

If the person is incapable of giving consent, the Director of Area Mental Health Services for the hospital or the co-ordinator for the secure facility may authorise any medical treatment or procedure that, in the opinion of that Director or co-ordinator, is immediately necessary to prevent—

This section does not limit an enactment or a rule of law that authorises the administration of a medical treatment or procedure.

If a defendant is brought before a court following an assessment of the defendant conducted under section 38(2)(b) or (c), the court may, on the application of a party or on the court’s own initiative, order the detention of the defendant in a hospital or secure facility pending the hearing or trial.

If an order is made under subsection (1), any subsisting order under section 38(2)(b) or (c) is cancelled.

The court may not make an order under subsection (1) without the consent of the following persons:

An order made under subsection (1)—

The court must, on the application of a party, cancel an order made under subsection (1) if,—

In this section and in section 46, the person to whom a report under section 38 relates is called the subject.

When a report prepared under section 38 is submitted to a court, the Registrar of the court must give a copy of the report to the subject and (if the subject is represented) also to the subject’s counsel.

Despite subsection (2), the court may order that 1 or more parts of the report not be disclosed to the subject if the court considers that disclosure of those parts would be likely—

If the subject is represented when an order under subsection (3) is made, the entire report must be shown to the subject’s counsel.

The subject or his or her counsel may give evidence on 1 or more matters referred to in the report.

A failure to comply with this section does not affect the validity of any proceedings, order, or sentence.

The following persons have access to a report submitted to a court under section 38 and held by the court:

If, because of an order under section 45(3), a subject may not be shown a part of a report, the subject may not have access to that part of the report under the Official Information Act 1982 or the Privacy Act 1993.