The COVID-19 Omnibus (Emergency Measures) Act 2020 and the COVID-19 Omnibus (Emergency Measures) (Criminal Proceedings and Other Matters) Regulations 2020 introduced the following temporary changes relevant to this chapter:
A special hearing may be determined by a judge sitting alone if the offence charged is an offence under Victorian law and the court considers it is in the interests of justice to do so;
In conducting a special hearing by a judge alone, ss 16(2)(b) (allowing jury challenges), 16(2)(f) (allowing a jury to bring in alternative verdicts) and 16(3) (mandatory jury directions at the start of a special hearing) do not apply. Instead, the court is given the power to return an alternative verdict;
A judgment in a special hearing by a judge alone must include the principles of law the judge applied and the facts the judge relied upon (Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 ss 101-108).
The Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) (the Act)  sets out the procedure to be followed if a person may be unfit to stand trial. This procedure applies to all trials, regardless of when the alleged offences were committed (Schedule 3).
According to the Act, when a real and substantial question is raised concerning a person’s fitness to stand trial, an investigation must be held to determine whether s/he is unfit (ss8, 9). The outcome of that investigation must be determined by a specially convened jury (s11). These investigations are examined in Investigations into Unfitness to Stand Trial.
If that jury finds the person unfit to stand trial, it may be necessary to hold a special hearing to determine whether s/he committed the offences charged (ss12, 15). These special hearings are the focus of this Chapter.
When Must a Special Hearing be Held?
There are three stages at which a judge may be required to order a special hearing:
At the conclusion of an investigation into the accused’s fitness to stand trial;
At the end of an adjournment period following a finding of unfitness; or
Upon application by the defence or the Director of Public Prosecutions.
Purpose of a Special Hearing
The purpose of a special hearing is to determine whether, on the evidence available, the accused:
Is not guilty of the offence charged;
Is not guilty of the offence charged because of mental impairment; or
Committed the offence charged or an available alternative offence (s15).
The jury’s role is to make one of the abovementioned findings (s18(1)).
A finding that the accused "committed the offence charged" (or an available alternative) is not the same as a verdict of guilty. It is a qualified finding of guilt, and does not constitute a basis in law for any conviction for the offence to which the finding relates (s18(3)(a)).
Where the jury makes such a finding, the judge must declare that the accused is liable to supervision, or order that s/he be released unconditionally (s18(4)).
A finding that the accused committed the offence charged constitutes a bar to further prosecution in respect of the same circumstances, and is subject to appeal in the same manner as if the accused had been convicted of the offence in a criminal trial (ss18(3)(b), (c)).
Jury findings of "not guilty" and "not guilty because of mental impairment" are to be taken for all purposes as if they were findings made at a criminal trial (ss18(1), (2)).
Onus of Proof
To find that the accused committed the offence charged, or an available alternative offence, the jury must be satisfied of that fact beyond reasonable doubt (s17(2)).
To find the accused not guilty because of mental impairment, the jury must be satisfied by defence argument on the balance of probabilities (s21(2); Mental Impairment).
At a special hearing, the accused is taken to have pleaded not guilty (s16(2)).
Special hearings should be conducted as nearly as possible as if they were criminal trials. To that end:
The Juries Act 2000 applies;
The rules of evidence apply;
Crimes Act 1958 s360A applies;
The accused’s legal representative may exercise the accused’s rights to challenge jurors or the jury;
All defences that would be available in a criminal trial are available (including the defence of mental impairment); and
Any alternative verdicts that would be available in a criminal trial are available (s16).
Special Hearings and Mental Impairments
The "consent mental impairment" provisions of Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 s21(4) do not apply to special hearings (SM v R (2013) 46 VR 464).
This means that, where a person is found unfit to be tried, the question of mental impairment must be resolved by a jury and cannot be determined through the judge-alone process (SM v R (2013) 46 VR 464. Compare s21(4)).
See Mental Impairment for further information concerning Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 s21.
At the start of a special hearing, the judge must explain to the jury:
That the defendant is unfit to be tried in accordance with the usual procedures of a criminal trial;
The meaning of being unfit to stand trial;
The purpose of the special hearing;
The findings that are available; and
The standard of proof required for those findings (s16(3)).
These directions must be given at the commencement of a special hearing. It is not sufficient to give them in running, or at the end of proceedings (Subramaniam v The Queen (2004) 211 ALR 1).
A judge cannot avoid giving these directions on the basis that counsel have already covered the relevant matters in their addresses to the jury (Subramaniam v The Queen (2004) 211 ALR 1).
As special hearings must be conducted (as far as possible) as if they were criminal trials, judges must give any other directions which must ordinarily be given in a criminal trial. See Directions Under Jury Directions Act 2015 for information on when directions are required.
Judges must be alert to ensure that there is not a miscarriage of justice. For example, if the accused’s mental impairment leads him/her to behave in a way that is prejudicial to his/her own interests, the jury should be given a suitable warning to counter the prejudice (R v Smith  NSWCCA 126).
The jury do not need to be told why the accused is unfit to be tried. A special hearing may proceed without any information being led concerning the accused’s mental impairment (Subramaniam v The Queen (2004) 211 ALR 1).
Confession evidence given by a person suffering from a mental impairment carries special risks (R v Parker (1990) 19 NSWLR 177).
 All references to legislative sections or schedules refer to the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic).
 As these directions are required by law, Part 3 of the Jury Directions Act 2015 does not apply (Jury Directions Act 2015 s10).