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10.2.1 – Charge: Special Hearing

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[This charge addresses the directions which must be given at the beginning of a special hearing (Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 s16). It has been designed to be used instead of Charge: The Role of Judge and Jury.

Many other charges contained in the Charge Book will also be relevant to special hearings. If these charges are used, appropriate changes should be made to reflect the differences between special hearings and criminal trials (e.g. the available findings).]


Serving on a jury may be a completely new experience for some, if not all, of you. To help you perform that role properly, I will now describe your duties as jurors and the procedures that we will follow. I will also explain to you some of the principles of law that apply in this case.

During and at the end of this hearing, I will give you further instructions about the law that applies to this case. You must listen closely to all of these instructions and follow them carefully.

If at any time you have a question about anything I say, please feel free to ask me. It would be best if you did this by writing it down, and passing it to my tipstaff, [insert name], who will hand it to me.

Fitness to Stand Trial

Members of the jury, you represent one of the most important institutions in our community – the institution of the jury. Our legal system guarantees any individual charged with a criminal offence the right to have the case presented against him or her determined at a trial by twelve independent and open-minded members of the community, in accordance with the law.

However, the law recognises that it would be unfair and unjust for a trial to take place if the person charged is unable to understand the case against him or her, or to meaningfully participate in the trial. According to the law, a person must be fit to stand trial before he or she can be convicted of an offence.

To be fit to stand trial, a person must be capable of meeting the minimum standards of mental capacity specified by the law. If a jury determines that s/he is unable to meet all of these standards, s/he will be unfit to be tried in accordance with the usual procedures of a criminal trial.

That is what has happened in this case. A question was raised about NOA’s fitness to stand trial, and a jury found that s/he is not fit to stand trial in the usual way. Special procedures must therefore be used instead.

Reasons for Unfitness

The accused’s unfitness for a normal trial may or may not be apparent to you as this hearing proceeds. That is because there are several reasons why a person may be unfit to stand trial.

S/he may not, for example, understand the nature of the charge against him/her, or be able to decide whether s/he has a defence to it. S/he may not be able to make a rational decision about whether s/he is guilty or not guilty of the offence[s] charged, or about how to plead to the charge[s]. S/he may not be able to understand the nature of the criminal proceedings and what their course and outcome may mean to him/her, or to involve himself/herself in these proceedings in an informed or constructive way.

His/her unfitness to stand trial may relate to his/her ability to give instructions to his/her lawyer. For example, s/he may not be able to adequately tell his/her lawyer what his/her defence is, or in what respects the prosecution evidence is wrong or should be questioned and tested.

None of these matters may be apparent to you in relation to NOA. But whether or not they are apparent, you must accept that s/he is unable to meet all of the minimum standards required for a person to receive a fair trial.

Purpose of a Special Hearing

The fact that a person is not fit to stand trial does not prevent a jury from determining whether or not s/he committed a crime. It simply means that the matter may not be determined in accordance with the usual procedures of a criminal trial. Instead, it must be determined at what is called a "special hearing". That is what is happening here today.

The purpose of a special hearing is to see that justice is done to both the accused person and the prosecution, in light of the accused’s inability to be tried in the normal way. In particular, it allows a jury to determine whether or not an accused who is unfit to stand trial committed the offence[s] charged. The accused and the prosecution both have an interest in resolving this matter.

In this case, it has been alleged by the prosecution that NOA committed the offence[s] of [insert offences]. This is a special hearing for you to determine whether s/he did commit [that offence/those offences].

I note that, when referring to the crime[s] that the accused has been charged with, I will sometimes use the words "offence", "count" or "charge" – they all mean the same thing.

Differences between Special Hearings and Criminal Trials

Available Findings

The verdicts that you may give in a special hearing differ from those that you may give in a criminal trial. In a criminal trial, if you are satisfied beyond reasonable doubt that the accused committed an offence, you must give a verdict of "guilty". By contrast, in a special hearing, your verdict in that circumstance must be that the accused "committed the offence".

This reflects the fact that, while the parties to this case have an interest in determining whether the accused committed the relevant offence[s], it would be unjust to find him/her guilty when s/he is not fit to be tried in the normal way. While in such circumstances it would be unfair for the accused to receive a criminal conviction, it would not be unjust to find the accused not guilty of the offence.

At the end of the hearing, the other verdicts available to you will therefore be "not guilty" or "not guilty because of mental impairment". I will explain the difference between these two verdicts later.

Accused’s Role

A special hearing may also differ from a normal criminal trial in the way in which the accused contributes to his/her defence. For example, in a criminal trial, the accused may or may not choose to give evidence. In a special hearing, while the accused is entitled to contribute to his/her defence, his/her unfitness may make him/her incapable of making rational decisions about what to do. S/he may therefore not be as involved in the hearing as s/he might be in a criminal trial.

Although there are some differences between a special hearing and a normal criminal trial, the law aims to ensure that a special hearing does not prejudice the accused any more than his/her unfitness already may do. S/he may therefore raise, or have raised on his/her behalf, any defences a fit person could raise in a normal trial.

Roles of Judge, Jury and Counsel

In all hearings of this type, the court consists of a judge and jury. We are going to be assisted in this case by counsel for the prosecution, [insert prosecutor’s name], and defence counsel, [insert defence counsel’s name]. [1] Each of us has a different role to play.

Role of the Jury

It is your role, as the jury, to decide what the facts are in this case. You are the only ones in this court who can make a decision about the facts. You make that decision from all of the evidence given during the hearing.

It is also your task to apply the law to the facts that you have found, and by doing that decide whether the offence[s] charged [has/have] been proven against the accused.

To find that the accused committed the offence[s] charged, you must be satisfied that s/he committed [it/them] beyond reasonable doubt. In contrast, to find the accused not guilty because of mental impairment, you must be satisfied of that fact on the balance of probabilities. If you are not able to make either of those findings, then you will find the accused not guilty. I will give you more directions about these two standards of proof later.

Role of the Judge

It is my role, as the judge, to ensure that this hearing is fair and conducted in accordance with the law. I will also explain to you the principles of law that you must apply to make your decision. You must accept and follow all of those directions.

I want to emphasise that it is not my responsibility to decide this case. The verdict that you return has absolutely nothing to do with me. So while you must follow any directions I give you about the law, you are not bound by any comments I may make about the facts.

It is unlikely that I will make any comments about the evidence. If you disagree with my comments, you must disregard them. Do not give them any extra weight because I, as the judge, have made them. It is your view of the facts which matters, not mine. You are the judges of facts – you alone.

Role of Counsel

The role of counsel is to present the case for the side for which they appear. [Insert name of prosecutor] presents the charge[s] in the name of the State. [Insert name of defence counsel] appears for the accused, and will represent him/her throughout the hearing. [2]

You do not need to accept any comments that counsel may make during their addresses. Of course, if you agree with an argument they present, you can adopt it – in effect, it becomes your own argument. But if you do not agree with their view, you must put it aside. As I have told you, you alone are the judges of the facts.

Similarly, you are not bound by what counsel says about the law. I am the judge of the law, and it is what I tell you about the law that matters. If counsel says something different from what I say about the law, you must ignore it and follow my directions.



[1] This sentence will need to be modified if the accused is unrepresented.

[2] This section will need to be modified if the accused is unrepresented.

Last updated: 1 July 2013

See Also

10.2 – Special Hearings