Section 317 of the Crimes Act 1900 (ACT) requires the Crown to prove all essential elements of the offence at a special hearing, including mens rea, not merely the actus reus. However, defences of mental impairment or diminished responsibility may not be raised. The inherent unfairness of special hearings to mentally impaired accused persons does not, without more, justify a permanent stay, given the legislative intention that such hearings proceed and the non-punitive character of the consequences.
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