(1) Where the court determines that there has not been established a prima facie case that the person committed the offence, the court must, by order, dismiss the charge against the person and, if the person is in custody, order the release of the person from custody.
(2) Where the court determines that there has been established a prima facie case that the person committed the offence, but the court is of the opinion, having regard to:
(a) the character, antecedents, age, health or mental condition of the person; or
(b) the extent (if any) to which the offence is of a trivial nature; or
(c) the extent (if any) to which the offence was committed under extenuating circumstances;
that it is inappropriate to inflict any punishment, or to inflict any punishment other than a nominal punishment, the court must, by order, dismiss the charge and, if the person is in custody, order the release of the person from custody.
(3) Where the court orders that the person be released from custody, the person must be released accordingly.
(4) Where the court determines that there has been established a prima facie case that the person committed the offence, but the court does not dismiss the charge under subsection (2), the court must, as soon as practicable after making that first‑mentioned determination, determine whether, on the balance of probabilities, the person will become fit to be tried, within the period of 12 months after the day the person was found to be unfit to be tried.
(5) A court must not make a determination under subsection (4) unless the court has obtained, and considered, written or oral evidence from a duly qualified psychiatrist and one other duly qualified medical practitioner.
(6) Nothing in subsection (5) prevents a court from obtaining written or oral evidence from such other persons, bodies or organisations as the court considers appropriate.
20BB Persons found by a court to be likely to be fit within 12 months
(1) 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:
(a) whether the person is suffering from a mental illness, or a mental condition, for which treatment is available in a hospital; and
(b) if so—whether the person objects to being detained in a hospital.
(2) Where a court has made a determination under subsection (1), the court must:
(a) 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
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(b) otherwise:
(i) order that the person be taken to and detained in a place other than a hospital (including a prison); or
(ii) grant the person bail on condition that the person live at an address or in a place specified by the court;
for a period ending:
(c) when the person becomes fit to be tried; or
(d) 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);
whichever happens first.
(3) 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:
(a) 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
(b) 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.
(4) 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.
(5) Where subsections 20BC(2) and (5) apply in relation to a person in the circumstances set out in subsection (4), then:
(a) 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
(b) in an order under subsection 20BC(5) as so applied the court must:
(i) 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
(ii) 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.
(6) 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.
20BC Persons found by a court not to be likely to be fit within 12 months
(1) Where a court determines, under section 20BA, that a person who was found unfit to be tried will not become fit to be tried within 12 months after that finding, the court must, at the time of making that determination, also determine:
(a) whether the person is suffering from a mental illness, or a mental condition, for which treatment is available in a hospital; and
(b) if so—whether the person objects to being detained in a hospital.
(2) Where a court has made a determination under subsection (1), the court must:
(a) if 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
(b) otherwise—order that the person be detained in a place other than a hospital, including a prison;
for a period specified in the order, not exceeding the maximum period of imprisonment that could have been imposed if the person had been convicted of the offence charged.
(3) The Attorney‑General may, at any time, by order in writing, vary the hospital or other place of detention at which a person is detained under this section.
(4) Where, for urgent medical or security reasons, it becomes necessary to do so, an officer of the State or Territory in which a person is detained under this section may vary the hospital or other place of detention of that person but, where the officer does so, the officer must forthwith notify the Attorney‑General, in writing, of the variation and of the reasons for the variation.
(5) Despite subsection (2), the court may, if in the court’s opinion it is more appropriate to do so than to make an order under subsection (2), order the person’s release from custody either absolutely or subject to conditions to apply for such period as the court specifies in the order, not exceeding 3 years.
(6) The conditions may include:
(a) a condition that the person remain in the care of a responsible person nominated in the order; and
(b) a condition that the person attend upon a person nominated, or at a place specified, in the order for assessment of the person’s mental illness, mental condition or intellectual disability and, where appropriate, for treatment; and
(c) any other condition that the court thinks fit.
(7) Where a person has been released from custody subject to conditions, the person or the Director of Public Prosecutions may, at any time, apply to the court to vary those conditions.
(8) Where a court determines, under subsection 20BA(4), that a person who was found unfit to be tried will not become fit to be tried, within 12 months after the finding, 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.
20BD Review by Attorney‑General
(1) Where a court makes an order under subsection 20BC(2), the Attorney‑General must, at least once in each period of 6 months after the day the person is detained under the order, consider whether or not the person should be released from detention.
(2) In considering whether the person should be released from detention the Attorney‑General:
(a) must obtain and consider:
(i) a report from a duly qualified psychiatrist or psychologist; and
(ii) a report from another duly qualified medical practitioner; and
(b) may obtain and consider such other reports as the Attorney‑General considers necessary; and
(c) must take into account any representations made to the Attorney‑General by the person or on the person’s behalf.
20BE Attorney‑General may order release
(1) The Attorney‑General may, after considering under subsection 20BD(1) whether or not the person should be released from detention, order that the person be released from detention.
(2) The Attorney‑General must not order a person’s release from detention unless the Attorney‑General is satisfied that the person is not a threat or danger either to himself or herself or to the community.
(3) An order:
(a) must be in writing; and
(b) remains in force for such period as is specified in the order (being a period equal to the balance of the period fixed by the court for detention under subsection 20BC(2)) or for a period of 5 years, whichever is the lesser; and
(c) is subject to such conditions (if any) as are specified in the order.
(4) Without limiting the generality of paragraph (3)(c), the conditions that may be specified in the order may include all or any of the following:
(a) a condition that the person reside at an address specified in the order;
(b) a condition that the person present himself or herself for such medical or psychiatric treatment as is specified in the order at such times as are specified in the order;
(c) a condition that the person undertake such medical or mental health therapy as is specified in the order;
(d) a condition that the person undertake such social, vocational or educational counselling as is specified in the order;
(e) a condition that the person participate in such programs relating to financial management, behaviour modification or inter‑personal relationships as are specified in the order.
20BF Release order may be revoked
(1) The Attorney‑General may, by instrument in writing, revoke an order made under subsection 20BE(1) (in this section called a release order) at any time while that release order remains in force:
(a) if the person concerned has, during that period, failed, without reasonable excuse, to comply with a condition of the order; or
(b) if there are reasonable grounds for suspecting that the person has, during that period, failed, without reasonable excuse, so to comply;
and, where the Attorney‑General does so, the instrument of revocation must specify the condition of the order that the person has breached or is suspected of having breached.
(2) Before revoking a release order, the Attorney‑General must make all such enquiries and call for all such reports as are reasonably necessary for the purpose of determining whether the circumstances referred to in paragraph (1)(a) or (b) apply.
(3) Where a release order in relation to a person is revoked:
(a) a constable may arrest the person without warrant; or
(b) the Attorney‑General or the Director of Public Prosecutions may apply to a prescribed authority for a warrant for the arrest of the person.
(4) A person who is arrested under subsection (3) must, as soon as practicable after that arrest, be brought before a prescribed authority in the State or Territory in which the person is arrested.
(5) Subject to subsection (6), where a prescribed authority in a State or Territory before whom a person is brought under subsection (4) is satisfied that:
(a) the person is the person named in the instrument revoking the release order; and
(b) the release order has been revoked and the revocation is still in force;
the prescribed authority must issue a warrant:
(c) authorising any constable to take the person to a specified prison or hospital in the State or Territory; and
(d) directing that the person be detained in prison or in hospital in that State or Territory for such part of the period fixed by the court to be the period of detention under subsection 20BC(2) as had not elapsed at the time of the making of the release order.
(6) If the prescribed authority in the State or Territory before whom the person is brought under subsection (4) cannot complete the hearing under subsection (5) immediately, the prescribed authority may issue a warrant for the remand of the person in a prison or hospital in the State or Territory pending completion of the hearing.
(7) The Attorney‑General may, at any time, by order in writing, vary the prison or hospital at which a person is detained under this section.
(8) Where for urgent medical or security reasons it becomes necessary to do so, an officer of the State or Territory in which a person is detained may vary the prison or hospital at which the person is detained but, where the officer does so, the officer must forthwith notify the Attorney‑General, in writing, of the variation and of the reasons for that variation.
20BG Attorney‑General to review detention of persons taken back into detention
(1) Where, under subsection 20BF(5), a prescribed authority directs that a person be detained in prison or in a hospital, the Attorney‑General must, as soon as practicable after the person is so detained, consider (in this section called the initial consideration) whether or not the person should be released from detention and must, while the person is in detention, reconsider the matter at least once in each period of 6 months after the initial consideration.
(2) Subsection 20BD(2) and, subject to the modification set out in subsection (3), section 20BE, apply in relation to an initial consideration and to any reconsideration under subsection (1).
(3) For the purposes of applying section 20BE, subsection 20BE(1) has effect as if the reference in that subsection to subsection 20BD(1) were a reference to subsection (1) of this section.
20BH State or Territory mental health authorities to be notified of certain releases
Where a person detained by authority of an order under subsection 20BC(2) or a warrant under subsection 20BF(5) for a specified period in a State or Territory is due to be released because the period of that person’s detention has ended, the Attorney‑General must notify the mental health authorities of the State or Territory of the proposed release of the person.
20BI Appeals against some Victorian jury findings of unfitness to be tried
(1) This section applies if:
(a) in proceedings for a federal offence in the Trial Division of the Supreme Court of Victoria or in the County Court of Victoria, a question arises whether the accused is fit to stand trial; and
(b) a jury finds that the accused is unfit.
Right to appeal
(2) The accused may appeal to the Court of Appeal of Victoria against the finding:
(a) on a ground involving only one or more questions of law alone; or
(b) on a ground involving one or more questions of fact alone, or one or more questions of mixed law and fact, if the judge before whom the accused came for trial certifies the ground is fit for appeal; or
(c) on any ground if the Court of Appeal gives leave.
Decision on appeal
(3) The Court of Appeal must allow the appeal if the court thinks that:
(a) the finding should be set aside because it is unreasonable or cannot be supported having regard to the evidence; or
(b) the order of the Supreme Court or County Court giving effect to the finding should be set aside because of a wrong decision on a question of law; or
(c) there was a miscarriage of justice.
(4) Otherwise, the Court of Appeal must dismiss the appeal.
(5) Despite subsection (3), the Court of Appeal may dismiss the appeal if the Court of Appeal thinks that no substantial miscarriage of justice has occurred.
Consequences if appeal allowed
(6) If the Court of Appeal allows the appeal:
(a) the accused may be tried for the federal offence; and
(b) the Court of Appeal may make orders for the custody or bail of the accused.
Rules of court
(7) Rules of court for the Court of Appeal of Victoria may make provision relating to appeals under subsection (2) and proceedings relating to orders under paragraph (6)(b).
Relationship with the rest of this Division
(8) This Division has effect subject to this section.