Crimes Act 1914

Part IB - Sentencing, imprisonment and release of federal offenders  

Division 6 - Unfitness to be tried  

SECTION 20B   Consequences of preliminary finding that person unfit to be tried  

(1)    
Where, in proceedings for the commitment of a person for trial of a federal offence on indictment, being proceedings begun after this section commences, the question of the person's fitness to be tried in respect of the offence, is raised by the prosecution, the person or the person's legal representative, the magistrate must refer the proceedings to the court to which the proceedings would have been referred had the person been committed for trial.

(2)    
If the court to which the proceedings have been referred finds the person charged to be fit to be tried, the court must remit the proceedings to the magistrate and proceedings for the commitment must be continued as soon as practicable.

(3)    
Where a court:

(a) to which proceedings have been referred under subsection (1); or

(b) before which a person appears in proceedings for trial of a federal offence on indictment, being proceedings begun after this section commences;

finds the person charged unfit to be tried, the court must determine whether there has been established a prima facie case that the person committed the offence concerned.

(4)    
Where a magistrate refers proceedings to a court under subsection (1), the magistrate may order the person charged to be detained in prison or in hospital for so long only as is reasonably necessary to allow the court to which the person is referred to determine whether it will make an order under subsection (2) remitting the person to the magistrate, an order under section 20BA dismissing the charge or an order under section 20BB detaining the person in prison or hospital or granting the person bail.

(5)    
Where a court finds a person, other than a person in respect of whom proceedings have been referred to it by a magistrate under subsection (1), to be unfit to be tried, the court may order the person to be detained in prison or hospital for so long only as is reasonably necessary to allow the court to determine whether it will make an order under section 20BA dismissing the charge or an order under section 20BB detaining the person in prison or hospital or granting the person bail.

(6)    
For the purposes of subsection (3), a prima facie case is established if there is evidence that would (except for the circumstances by reason of which the person is unfit to be tried) provide sufficient grounds to put the person on trial in relation to the offence.

(7)    
In proceedings to determine whether, for the purposes of subsection (3), a prima facie case has been established:

(a) the person may give evidence or make an unsworn statement; and

(b) the person may raise any defence that could properly be raised if the proceedings were a trial for that offence; and

(c) the court may seek such other evidence, whether oral or in writing, as it considers likely to assist in determining the matter.