Australian Capital Territory Numbered Acts Australian Capital Territory Numbered Actssubstitute
310 Application of div 13.2
This division applies to a criminal proceeding in the Supreme Court or the Magistrates Court.
311 When a person is unfit to plead
(1) A person is unfit to plead to a charge if the person's mental processes are disordered or impaired to the extent that the person cannot—
(a) understand the nature of the charge; or
(b) enter a plea to the charge and exercise the right to challenge jurors or the jury; or
(c) understand that the proceeding is an inquiry about whether the person committed the offence; or
(d) follow the course of the proceeding; or
(e) understand the substantial effect of any evidence that may be given in support of the prosecution; or
(f) give instructions to the person's lawyer.
(2) A person is not unfit to plead only because the person is suffering from memory loss.
312 Presumption of fitness to plead, standard of proof etc
(1) A person is presumed to be fit to plead.
(2) The presumption is rebutted only if it is established, on an investigation under this division, that the person is unfit to plead.
(3) The question of a person's fitness to plead—
(a) is a question of fact; and
(b) is to be decided on the balance of probabilities.
(4) No party bears a burden of proof in relation to the question.
313 Who can raise question of unfitness to plead
The question of a defendant's fitness to plead to a charge may be raised by a party to a proceeding in relation to the charge or by the court.
314 Procedure if question raised
(1) If the question is raised in the Magistrates Court (other than at a committal hearing) and the court is satisfied that there is a real and substantial question about the defendant's fitness to plead, the court must reserve the question for investigation under this division.
(2) If the question is raised at a committal hearing—
(a) the committal hearing must be completed; and
(b) the defendant must not be discharged only because the question has been raised; and
(c) if the person is committed for trial—the question must be reserved for consideration by the Supreme Court.
(3) If the question has been reserved under subsection (2) (c) or is otherwise raised in the Supreme Court and the court is satisfied that there is a real and substantial question about the defendant's fitness to plead, the court must reserve the question for investigation under this division.
315 Procedure if question reserved for investigation
(1) If a court reserves the question for investigation, the court must adjourn the hearing or trial in which the question was raised and proceed with an investigation under this division.
(2) The court may make 1 or more of the following orders:
(a) an order granting bail;
(b) an order remanding the defendant in custody in an appropriate place for a stated period;
(c) an order requiring the defendant to be examined by a psychiatrist or other health professional;
(d) if the question arose in a trial for which a jury had been empanelled—an order discharging the jury;
(e) any other order the court considers appropriate.
(3) The court must not make an order under subsection (2) (b) remanding the defendant in custody at a place other than a prison or remand centre unless satisfied that the facilities or services necessary for the order are available at the place.
(4) If the court considers that, because of the trivial nature of the charge or the nature of the defendant's disability, it would be inappropriate to inflict any punishment on the defendant in relation to the offence, the court may decide not to carry out or continue the investigation and may dismiss the charge and order that the person be released.
315A Investigation into fitness to plead
(1) On an investigation into a defendant's fitness to plead—
(a) the court must hear any relevant evidence and submissions put to the court by the prosecution or the defence; and
(b) if the court considers that it is in the interests of justice to do so, the court may—
(i) call evidence on its own initiative; or
(ii) require the defendant to be examined by a psychiatrist or other health professional; or
(iii) require the results of the examination to be put before the court.
(2) Before hearing any evidence or submissions, the court must consider whether, for the protection of the defendant's privacy, the court should be closed to the public while all or part of the evidence or submissions are heard.
(3) The court must decide whether the defendant is unfit to plead.
(4) If the court finds that the defendant is unfit to plead, the court must also decide whether the defendant is likely to become fit to plead within the next 12 months.
315B Person found fit to plead
If the court decides that the defendant is fit to plead, the proceeding brought against the defendant must be continued in accordance with ordinary criminal procedure.
315C Person found unfit to plead and unlikely to become fit to plead
If the court decides that the defendant is unfit to plead and is unlikely to become fit to plead within the next 12 months, the court must—
(a) for a proceeding in the Supreme Court—
(i) discharge any jury empanelled for the proceeding; and
(ii) hold a special hearing under section 316; and
(b) for a proceeding in the Magistrates Court—conduct a hearing under section 335.
315D Person found temporarily unfit to plead
(1) If the court decides that the defendant is unfit to plead but is likely to become fit to plead within the next 12 months, the court must adjourn the proceeding and—
(a) if the defendant is charged with a serious offence—remand the defendant in custody or release the defendant on bail; and
(b) if the defendant is charged with an offence other than a serious offence—make the orders it considers appropriate.
(2) The orders the court may make under subsection (1) (b) include—
(a) an order remanding the defendant in custody; and
(b) an order requiring the defendant to submit to the jurisdiction of the tribunal to enable the tribunal to make a mental health order.
(3) The court may (on application or its own initiative) reinvestigate the defendant's fitness to plead at any time before the end of the 12-month period.
(4) However, if the court has not reinvestigated the defendant's fitness to plead within 6 months after the day the initial decision was made, the court must reinvestigate it as soon as practicable (but within 30 days) after the end of that period.
(5) If, before the end of the 12-month period, the defendant has not been found fit to plead, the court must reinvestigate the defendant's fitness to plead as soon as practicable (but within 3 months) after the end of that period.
(6) On a reinvestigation—
(a) the court must hear any relevant evidence and submissions put to the court by the prosecution or the defence; and
(b) if the court considers that it is in the interests of justice to do so, the court may—
(i) call evidence on its own initiative; or
(ii) require the defendant to be examined by a psychiatrist or other health professional; or
(iii) require the results of the examination to be put before the court.
(7) The court must decide whether the defendant is unfit to plead.
(8) If the court decides that the defendant is fit to plead, the proceeding brought against the defendant must be continued in accordance with ordinary criminal procedure.
(9) If, on a reinvestigation mentioned in subsection (5), the court decides that the defendant is unfit to plead, the court must—
(a) for a proceeding in the Supreme Court—
(i) discharge any jury empanelled for the proceeding; and
(ii) hold a special hearing under section 316; and
(b) for a proceeding in the Magistrates Court—conduct a hearing under section 335.