Crimes Act 1914

Where a court determines, under subsection 20BA(4), that a person charged with a federal offence who was found unfit to be tried will become fit to be tried within a period of 12 months after that finding, the court must, at the time of making that determination, also determine:

whether the person is suffering from a mental illness, or a mental condition, for which treatment is available in a hospital; and

if so—whether the person objects to being detained in a hospital.

Where a court has made a determination under subsection (1), the court must:

where the court has determined that the person is suffering from a mental illness, or a mental condition, for which treatment is available in a hospital and that the person does not object to being detained in a hospital—order that the person be taken to and detained in a hospital, or continue to be detained in a hospital, as the case requires; or

otherwise:

order that the person be taken to and detained in a place other than a hospital (including a prison); or

grant the person bail on condition that the person live at an address or in a place specified by the court;

when the person becomes fit to be tried; or

when, as soon as practicable after the end of the 12 months referred to in subsection (1), the court makes an order under subsection 20BC(2) or (5) as applied under subsection (4);

Where a court determines, under subsection 20BA(4), that a person charged with a federal offence who was found unfit to be tried will become fit to be tried within 12 months after that finding then, if the person becomes fit within that period:

if the person had been indicted on the charge before being found unfit—the proceedings on the indictment must be continued as soon as practicable; and

if proceedings for the commitment of the person had been referred to the court under section 20B—those proceedings must be continued as soon as practicable as if they had not been so referred.

Where a court determines, under subsection 20BA(4), that a person who was found unfit to be tried will become fit to be tried, within 12 months after that finding but the person does not become fit within that period, then, at the end of that period, subsections 20BC(2) and (5) apply as if the court had originally determined, at that time, that the person would not become fit to be tried and had made, under subsection 20BC(1), a further determination of the kind that it made under subsection (1) of this section.

Where subsections 20BC(2) and (5) apply in relation to a person in the circumstances set out in subsection (4), then:

in an order under subsection 20BC(2) as so applied the court must, in fixing the period of detention, have regard to any period of detention already served under paragraph (2)(a) or (b) of this section; and

in an order under subsection 20BC(5) as so applied the court must:

in the case of a person already on bail—order, in lieu of the person’s release from custody, the continuance of the person’s release on bail; and

in fixing the period of the person’s release for which conditions apply, have regard to any period of detention already served under paragraph (2)(a) or (b) of this section.

Where a court determines, under subsection 20BA(4), that a person who was found unfit to be tried will become fit to be tried within 12 months after that finding but the person does not become fit within that period, the finding that there is, on the balance of probabilities, a prima facie case for the commission of the offence charged acts as a stay against any proceedings, or any further proceedings, against the person in respect of the offence.