316Special hearing

316 Special hearing (1) Subject to this section, the Supreme Court shall conduct a special hearing as nearly as possible as if it were an ordinary criminal proceeding. (2) A special hearing shall be a trial by jury— (a) unless— (i) the Supreme Court is satisfied that the accused is capable of making an election to have a special hearing to be a trial by a single judge without a jury before the court first fixes a date for the hearing; and (ii) the accused makes the election before that date; or (b) unless— (i) the Supreme Court is satisfied that the accused is incapable of making the election mentioned in paragraph (a) (i); and (ii) before the court first fixes a date for the hearing, any guardian of the accused notifies the court that, in his or her opinion, it is in the best interests of the accused for the special hearing to be a trial by a single judge without a jury. (3) The Supreme Court must direct the ACAT to appoint a guardian with power to notify the court under subsection (2) (b) (ii) if the court is satisfied that— (a) there is no guardian who has power to do so; and (b) the accused is incapable of making the election mentioned in subsection (2) (a) (i). (4) If— (a) the accused makes an election under subsection (2) (a) (ii); or (b) a guardian notifies the Supreme Court under subsection (2) (b) (ii); the special hearing shall be by single judge without a jury. (5) Despite subsection (2) (b), if before the date fixed by the Supreme Court for the hearing— (a) the court is satisfied that the accused is capable of making the election mentioned in subsection (2) (a) (i); and (b) the accused notifies the court that he or she objects to the special hearing being a trial by a single judge without a jury; the special hearing shall be a trial by jury. (6) Unless the Supreme Court otherwise orders, the accused shall have legal representation at a special hearing. (7) A decision that the accused is unfit to plead to the charge is not to be taken to be an impediment to his or her being represented at a special hearing. (8) At a special hearing, the accused is to be taken to have pleaded not guilty in respect of the offence charged. (9) If a special hearing is a trial by jury, the Supreme Court shall, at the commencement of the hearing, explain to the jury— (a) the meaning of unfitness to plead; and (b) that the accused is unfit to plead to the charge in accordance with ordinary criminal procedures; and (c) that the purpose of the special hearing is to ensure that, despite the unfitness of the accused to plead in accordance with ordinary criminal procedures, the accused should be acquitted unless it can be proved beyond reasonable doubt that, on the evidence available, the accused engaged in the conduct required for the offence charged (or an alternative offence); and (d) the actions that are available to the jury under section 317; and (e) the legal and practical consequences of those actions.