Victorian Current Acts Victorian Current Acts(1) In a criminal proceeding in the County Court or the Trial Division of the Supreme Court, if the question has arisen whether an accused is unfit to stand trial and on an investigation under this Division a court finds that the accused is unfit to stand trial, the accused may appeal to the Court of Appeal against the finding on any ground of appeal, with leave of the Court of Appeal.
(2) An application for leave to appeal under subsection (1) is commenced by filing a notice of application for leave to appeal in accordance with the rules of court within 28 days after the day on which the finding is made or any extension of that period granted under section 76C.
(3) The Registrar of Criminal Appeals of the Supreme Court must provide to the respondent a copy of the notice of application for leave to appeal within 7 days after the day on which the notice of application is filed.
(4) On an appeal under subsection (1), the Court of Appeal must allow the appeal if the appellant satisfies the court that—
(a) the finding of unfitness to stand trial is unreasonable or cannot be supported having regard to the evidence; or
(b) the trial judge made a material error of law; or
(c) for any other reason the court considers that the finding should not stand.
(5) In any other case, the Court of Appeal must dismiss an appeal under subsection (1).
(6) If the Court of Appeal allows an appeal under subsection (1), it must set aside the finding of unfitness to stand trial and either—
(a) refer the matter to the Trial Division of the Supreme Court or to the County Court for trial and the accused may be tried for the offence charged against the accused; or
(b) remit the matter for a rehearing of the investigation under this Division as to whether the accused is fit to stand trial.
(7) Despite subsection (6), if the Court of Appeal allows an appeal under subsection (1) but considers that the accused is unfit to stand trial, it may affirm the finding and refer the matter to the Trial Division of the Supreme Court or to the County Court.
(8) If the Court of Appeal remits a matter under subsection (6)(b)—
(a) it may give directions concerning the manner and scope of the rehearing, including a direction as to whether the rehearing is to be conducted by the same judge or a different judge; and
(b) the court conducting the rehearing, whether constituted by the same judge or a different judge, must hear and determine the matter in accordance with the directions, if any.
(9) On remitting or referring a matter under this section, the Court of Appeal may remand the accused in custody or grant bail to the accused or make any other order that the court considers appropriate for the safe custody of the accused.
S. 14J inserted by No. 11/2021 s. 122.