New South Wales Consolidated Acts

MENTAL HEALTH (FORENSIC PROVISIONS) ACT 1990 - SECT 21

21 Nature and conduct of special hearing

(1) Except as provided by this Act, a special hearing is to be conducted as nearly as possible as if it were a trial of criminal proceedings.

(2) At a special hearing, the accused person must, unless the Court otherwise allows, be represented by an Australian legal practitioner and the fact that the person has been found unfit to be tried for an offence is to be presumed not to be an impediment to the person’s representation.

(3) At a special hearing:

(a) the accused person is to be taken to have pleaded not guilty in respect of the offence charged, and

(b) the Australian legal practitioner, if any, who represents the accused person may exercise the rights of the person to challenge jurors or the jury, and

(c) without limiting the generality of subsection (1), the accused person may raise any defence that could be properly raised if the special hearing were an ordinary trial of criminal proceedings, and

(d) without limiting the generality of subsection (1), the accused person is entitled to give evidence.

(4) At the commencement of a special hearing for which a jury has been constituted, the Court must explain to the jury the fact that the accused person is unfit to be tried in accordance with the normal procedures, the meaning of unfitness to be tried, the purpose of the special hearing, the verdicts which are available and the legal and practical consequences of those verdicts.