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inserts a new section 14A into the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997. Currently, an appeal by an accused against a finding that the accused is unfit to stand trial is dealt with under section 570C of the Crimes Act 1958 by applying the procedure in section 570A (appeal against finding of not guilty because of mental impairment) with necessary modifications. As with appeals against verdicts of not guilty because of mental impairment (see discussion of clause 371 below), this appeal power is being moved into the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 so that it is linked to the substantive processes underlying the appeal right. New section 14A articulates the procedural and substantive requirements of such an appeal rather than relying on a "necessary modifications" approach. It also follows, to the extent reasonably possible, the structure of the substantive appeals provisions in the Bill, particularly, clauses 274–277. New section 14A(2) and (3) provide that a notice of application for leave to appeal must be filed within 28 days of the order being made. The Registrar of Criminal Appeals of the Supreme Court must provide the respondent with a copy of the notice of application for leave to appeal within 7 days after the filing of the notice. New section 14A(4) requires the Court of Appeal to allow an appeal against a finding of unfitness where—
the finding of unfitness is unreasonable and cannot be supported having regard to the evidence;
there has been a material error of law; or
for any other reason the Court of Appeal considers that the finding should not stand. This acts as a general ground to ensure that justice can be done in individual cases.
The options for a court on a successful appeal now cover all of the possible approaches that may be required. New subsections (6) and (7) provide that if the appeal is allowed, the court may—
set aside the finding and remit the matter for trial;
set aside the finding and remit the matter for a rehearing of the issue of whether the accused is fit to stand trial with directions as to how the hearing is to take place (this may be appropriate if, for example, a wrong direction was given to the jury); or
if the court considers that, even though the appeal has been allowed, the accused is unfit to stand trial, affirm the finding and remit the matter for the process under the Act to continue.
The Court of Appeal may, on remitting a matter under this section, give directions as to how the rehearing is to be conducted and remand the accused in custody, grant the accused bail, or make any other order that it considers appropriate for the safe custody of the accused.