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Criminal Code Act 1983
372Incapacity of Judge
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372 Incapacity of Judge
(1) This section applies if the presiding Judge becomes incapable of
continuing with a trial.
(2) The Chief Justice or acting Chief Justice may, after hearing
submissions from the parties, decide:
(a) to take over, or assign another Judge to take over, the
conduct of the trial; or
(b) to terminate the trial.
(3) For the purpose of hearing submissions and making the decision,
the Chief Justice or acting Chief Justice may make the orders the
Chief Justice or acting Chief Justice considers appropriate.
Criminal Code Act 1983 301
(4) If a Judge (the new presiding Judge) takes over the conduct of
the trial:
(a) rulings of the former presiding judge about the conduct of the
trial continue to have effect; and
(b) the rulings may be re-examined only if the new presiding
judge is satisfied the re-examination is justified because of
fresh evidence or material brought before the court.
(5) However, if the Chief Justice or acting Chief Justice decides to
terminate the trial, the Chief Justice or acting Chief Justice must:
(a) discharge the jury; and
(b) remand the accused in custody, or release the accused on
bail, to await a further trial.
(6) If, because of the circumstances of the incapacity of the presiding
Judge it is impracticable for the Chief Justice or acting Chief Justice
to make a decision under subsection (2) in a reasonable time:
(a) a proper officer of the court must discharge the jury; and
(b) if in custody, the accused must remain in custody to await a
further trial but has the same rights relating to bail as applied
on the original committal for trial.