Sunday, May 22, 2011

Criminal Procedure (Mentally Impaired Persons) Act 2003 No 115 as at 29 June 2009


Subpart 1Findings of unfitness to stand trial

7 When finding of unfitness to stand trial may be made
  • (1) 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.
    (2) Subsection (1) is subject to section 9.
    Compare: 1985 No 120 s 109
8 Postponement of finding
  • (1) 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.
    (2) However, at a hearing or trial, a court may not postpone the determination of that question beyond the stage at which all the evidence is concluded.
    (3) 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—
    • (a) the defendant is acquitted; or
    • (b) the information against the defendant is dismissed.
    Compare: 1985 No 120 s 110
9 Court must be satisfied of defendant's involvement in offence
  • A court may not make a finding as to whether a defendant is unfit to stand trial unless 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.
10 Inquiry at summary hearing into defendant's involvement
  • (1) This section applies if a defendant is proceeded against summarily.
    (2) If the question whether the defendant is unfit to stand trial is to be determined before the hearing of the information, the court must hold a special hearing to ascertain whether the court is satisfied of the matter specified in section 9.
    (3) The provisions of Part 5 of the Summary Proceedings Act 1957 that relate to the conduct of a committal hearing, so far as they are applicable and with any modifications, apply to every hearing held under subsection (2).
    (4) If the question whether the defendant is unfit to stand trial is to be determined in the course of the hearing, the court must ascertain whether it is satisfied of the matter specified in section 9.
    (5) For the purpose of subsection (4), the court may (whether on the application of a party or on the court's own initiative) do either or both of the following:
    • (a) consider any evidence presented at the hearing:
    • (b) hear any new evidence.
    Section 10(3): substituted, on 29 June 2009, by section 18 of the Summary Proceedings Amendment Act (No 2) 2008 (2008 No 41).
11 Inquiry into defendant's involvement if committal proceedings required
  • (1) This section applies if committal hearings under Part 5 of the Summary Proceedings Act 1957 are required.
    (2) If the question whether the defendant is unfit to stand trial is to be determined before or without a committal hearing, the court must hold a special hearing to ascertain whether the court is satisfied of the matter specified in section 9.
    (3) The provisions of Part 5 of the Summary Proceedings Act 1957 that relate to committal hearings, so far as they are applicable and with any necessary modifications, apply to every hearing held under subsection (2).
    (4) A hearing held under subsection (2) takes the place of a committal hearing under Part 5 of the Summary Proceedings Act 1957.
    (5) If the question whether the defendant is unfit to stand trial is to be determined in the course of a committal hearing, the court must ascertain whether it is satisfied of the matter specified in section 9.
    (6) For the purpose of subsection (5), the court may (whether on the application of the party or on the court's own initiative) do either or both of the following:
    • (a) consider any evidence presented at the committal hearing:
    • (b) hear any new evidence.
    (7) A District Court Judge must preside over a court that conducts a special hearing under subsection (2) or determines whether the defendant is unfit to stand trial in the course of a committal hearing.
    Section 11: substituted, on 29 June 2009, by section 18 of the Summary Proceedings Amendment Act (No 2) 2008 (2008 No 41).
12 Inquiry at trial into defendant's involvement
  • (1) If the question whether the defendant is unfit to stand trial is to be determined in the course of a trial, the court must ascertain whether it is satisfied of the matter specified in section 9.
    (2) For the purpose of subsection (1), the court may (whether on the application of a party or on the court's own initiative) do 1 or more of the following:
    • (a) consider any evidence presented for the purposes of the standard committal or at the committal hearing or at the trial:
    • (b) rehear any of the evidence presented for the purposes of the standard committal or of the committal hearing:
    • (c) hear any new evidence at any stage before the commencement of the closing addresses.
    Section 12(2)(a): amended, on 29 June 2009, by section 18 of the Summary Proceedings Amendment Act (No 2) 2008 (2008 No 41).
    Section 12(2)(b): amended, on 29 June 2009, pursuant to section 18 of the Summary Proceedings Amendment Act (No 2) 2008 (2008 No 41).
13 Outcome of consideration of defendant's involvement
  • (1) 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 9, the court must record its finding on the matter.
    (2) If the court is not satisfied of the matter specified in section 9, the court must discharge the defendant.
    (3) A discharge under subsection (2) does not amount to an acquittal.
    (4) If the court is satisfied of the matter specified in section 9, the court must proceed to determine the matters specified in section 14.
14 Determining if defendant unfit to stand trial
  • (1) If the court records a finding of the kind specified in section 13(4), the court must receive the evidence of 2 health assessors as to whether the defendant is mentally impaired.
    (2) 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—
    • (a) give each party an opportunity to be heard and to present evidence as to whether the defendant is unfit to stand trial; and
    • (b) find whether or not the defendant is unfit to stand trial; and
    • (c) record the finding made under paragraph (b).
    (3) The standard of proof required for a finding under subsection (2) is the balance of probabilities.
    (4) If the court records a finding under subsection (2) that the defendant is fit to stand trial, the court must commence or continue the hearing or trial, or commit the defendant for trial, as the case may require.
    Compare: 1985 No 120 s 111(1), (2)
15 Jurisdiction may be exercised in absence of defendant
  • The jurisdiction under any of sections 10 to 14 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.
    Compare: 1985 No 120 s 111(3)
16 Appeal by defendant against finding relating to fitness to stand trial
  • (1) A defendant about whom a finding under section 14(2)(b) has been made may appeal against one or both of the following findings:
    • (a) 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:
    • (b) that the defendant is unfit to stand trial or, as the case may be, fit to stand trial.
    (2) For the purposes of an appeal under this section,—
    • (a) the finding appealed against is to be regarded as a conviction; and

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