Criminal Code Act 1983

(1) If the jury finds that the accused person is unfit to stand trial, the Judge must determine whether there is a reasonable prospect that the accused person might, within 12 months, regain the necessary capacity to stand trial.

(2) In making his or her determination under subsection (1), the Judge:

(b) must refer to all relevant evidence and make the determination on the balance of probabilities.

(3) If the Judge determines that it is not likely that the accused will become fit to stand trial within 12 months, subject to section 43XA, the court must hold a special hearing within 3 months after the date of the Judge's determination.

(4) If the Judge determines that there is a reasonable prospect that the accused person might become fit for trial within 12 months, the Judge must adjourn the matter of the fitness of the accused person to be tried for the period, not exceeding 12 months, within which the Judge considers that the accused person might become fit.

(5) If the matter is adjourned under subsection (4), the Judge may make the interim orders he or she considers just, including one or more of the following orders:

(b) an order that the accused person is remanded in custody (whether in a custodial correctional facility or another place the Judge considers appropriate) during the adjournment.

(6) The Judge must not make an order under subsection (5) remanding the accused person in custody in a custodial correctional facility unless the Judge is satisfied that there is no practicable alternative given the circumstances of the accused person.

(7) On the expiry of the adjournment, the accused person is presumed to be fit to stand trial unless a party or the court raises a real and substantive question as to the accused person's fitness to stand trial.

(8) Where the accused person is presumed to be fit, the trial of the accused person for committing the offence he or she is charged with is to proceed in the normal way.

(9) Where a real and substantial question as to the accused person's fitness has been raised in accordance with subsection (7), the court must:

(a) if the adjournment was for less than 12 months – adjourn the matter for a further period that, when added together with the first period of adjournment, does not exceed 12 months; or

(b) subject to section 43XA, hold a special hearing within 3 months after the date the adjournment expires.

(10) If the Judge further adjourns the matter under subsection (9)(a), he or she may vary an order made under subsection (5) in respect of the accused person or make any other orders referred to in subsection (5) as he considers just (and, in doing so, must comply with subsection (6)).

(11) On the expiry of an adjournment under subsection (9)(a), subsections (7), (8), (9) and (10) apply with the necessary changes as if a reference to an adjournment in those subsections were a reference to a further adjournment under subsection (9)(a).

(12) A matter may be adjourned more than once under subsection (9)(a) but the total period of adjournment of a matter under this section is not to exceed 12 months.