Victorian Current Acts Victorian Current ActsS. 16(1) substituted by No. 53/2000 s. 95(2).
(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—
S. 16(2)(a) amended by No. 68/2009 s. 97(Sch. item 39.12(a)).
(a) the accused must be taken to have pleaded not guilty to the offence; and
S. 16(2)(b) amended by No. 68/2009 s. 97(Sch. item 39.12(b) (c)).
(b) the legal representative (if any) of the accused may exercise the rights of the accused to challenge jurors (either for cause or peremptorily) or the jury;
S. 16(2)(c) amended by No. 68/2009 s. 97(Sch. item 39.12(a)).
(c) the accused 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;
S. 16(2)(e) amended by No. 68/2009 s. 97(Sch. item 39.12(d)).
(e) section 197 of the Criminal Procedure Act 2009 (Order for legal representation for accused) 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.
Note to s. 16(2) inserted by No. 6/2017 s. 11.
Note
At a special hearing the judge may give directions under section 232A of the Criminal Procedure Act 2009 . That section enables the judge, with the consent of the prosecution and the accused, to direct that expert witnesses give their evidence concurrently or consecutively. The judge may direct that this evidence be given at any stage of the special hearing, including before the prosecution has closed its case.
(3) At the commencement of a special hearing, the judge must explain to the jury—
S. 16(3)(a) amended by No. 68/2009 s. 97(Sch. item 39.12(a)).
(a) that the accused 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.