Crimes Act 1914

Part IB - Sentencing, imprisonment and release of federal offenders

Division 6 - Unfitness to be tried

SECTION 20BA Upon determining prima facie case, court to dismiss charge or to determine fitness within 12 months

(1)
Where the court determines that there has not been established a prima facie case that the person committed the offence, the court must, by order, dismiss the charge against the person and, if the person is in custody, order the release of the person from custody.

(2)
Where the court determines that there has been established a prima facie case that the person committed the offence, but the court is of the opinion, having regard to:

(a) the character, antecedents, age, health or mental condition of the person; or

(b) the extent (if any) to which the offence is of a trivial nature; or

(c) the extent (if any) to which the offence was committed under extenuating circumstances;

that it is inappropriate to inflict any punishment, or to inflict any punishment other than a nominal punishment, the court must, by order, dismiss the charge and, if the person is in custody, order the release of the person from custody.

(3)
Where the court orders that the person be released from custody, the person must be released accordingly.

(4)
Where the court determines that there has been established a prima facie case that the person committed the offence, but the court does not dismiss the charge under subsection (2), the court must, as soon as practicable after making that first-mentioned determination, determine whether, on the balance of probabilities, the person will become fit to be tried, within the period of 12 months after the day the person was found to be unfit to be tried.

(5)
A court must not make a determination under subsection (4) unless the court has obtained, and considered, written or oral evidence from a duly qualified psychiatrist and one other duly qualified medical practitioner.

(6)
Nothing in subsection (5) prevents a court from obtaining written or oral evidence from such other persons, bodies or organisations as the court considers appropriate.

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