When an accused found unfit to be tried elects a judge-alone special hearing under s 21A of the Mental Health (Criminal Procedure) Act 1990, the judge must be satisfied that the advising barrister or solicitor was satisfied the accused properly understood the nature of the election. Where psychiatric reports raise concerns about the accused's competence to make the election, the judge should inquire whether a psychiatric assessment of that competence has been obtained. Failure to comply with s 21A is not a mere procedural irregularity but a fundamental error denying the right to a jury. In judge-alone special hearings, the judge must formally make findings on each element of the offence under s 21B(2), even where facts are undisputed, and must consider the relevance of mental illness evidence to specific intent per Hawkins v The Queen.
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