The precise terms of an appropriate explanation will need adaptation to the facts of the particular case. Here however something to this effect should have been said by the trial judge to the jury:

“A Tribunal set up under an Act of Parliament has found that this accused is unfit to be tried on the present charge(s) in the normal way because in one or more respects the accused does not have the mental capacity to meet all of the basic requirements of a fair and just trial. Consequently, the law of this State requires that the accused be tried under a special procedure. The special procedure has been laid down by Parliament in an Act with which the Court, which means all of us, including you the jury, must comply.

Her unfitness for a normal trial may or may not be apparent to you as the trial proceeds. That is because unfitness for trial, which is an inability on the part of an accused person, to meet a minimum standard of mental capacity to be tried fairly, may arise for any one or more of several reasons. She may not understand the nature of the charge against her, or be able to decide whether she has a defence to it. She may not be able to make a rational decision whether she is guilty or not guilty, or how to plead to the charge. She may not be able to understand generally the nature of the criminal proceedings and what their course and outcome may mean to her. The unfitness may be an unfitness to give her lawyers instructions, that is, to tell them adequately what her defence is, or in what respects the prosecution evidence is erroneous, or should be questioned and tested, or an inability to apply herself to the proceedings in an informed or constructive way. It may be that none of these matters will actually be apparent to you. But whether they are or not, you must accept that in one or more ways, of which these are only possible examples, this accused is unfit mentally to be tried in a normal way because for that to occur the law insists that an accused have the mental capacity to do all of these things.

How then, you may ask, is this special hearing to be conducted? In what ways will it be different from a normal criminal trial? Well, it could be different in one or more of the ways to which I have referred, that is, in the way in which the accused is able or unable to participate or contribute to her defence. In every criminal trial an accused person may or may not choose to give evidence. That remains so in a special hearing such as this one, but an unfit person may not be capable of making a reasoned decision about that, or indeed other matters concerning the hearing. At a special hearing the accused person is taken to have pleaded not guilty to the charges against her, unlike in a normal trial in which an accused may enter a plea of either guilty or not guilty. The Act of Parliament that I mentioned before is intended to ensure that a special hearing not prejudice the accused any more than her unfitness already may do. She may raise, or have raised on her behalf whatever defences a fit person could raise in a normal trial. She may, or she may not, give evidence. She must however have legal representation and may not, as some mentally fit accused persons do, choose to represent herself.

What are the purposes of a special hearing? The first is to see that justice is done, as best it can be in the circumstances, to the accused person and the prosecution. She is put on trial so that a determination can be made of the case against her. The prosecution representing the community has an interest also in seeing that justice be done. A special hearing gives an accused person an opportunity of being found not guilty in which event the charge will cease to hang over her head, and if she requires further treatment that it may be given to her outside the criminal justice system.

Members of the jury, you also need to keep in mind that you will have to reach your verdict on what the Act describes as the limited evidence available. There are various ways in which evidence at a hearing of this nature may be limited. An accused, for example, may be unable to give evidence, or unable, by reason of her mental unfitness to give adequate instructions to her lawyers concerning the calling of witnesses who might assist her case, or, as to matters on which cross-examination could be based.

The next matter which I must explain to you concerns the verdicts which it is open to you to give in this case. In the present case those verdicts are ‘not guilty of the offence’ or ‘the accused person committed the offence’ on each of the offences charged.

If you find the accused not guilty then that will be the end of the matter. She will be free and subject to no further criminal process of any kind in respect of the events giving rise to the charge. If however you find that on the limited evidence available she did commit the offence or offences charged, it will be my duty to decide whether, had she been fit to be tried in a normal way, and been convicted, she would have been subjected to a term of imprisonment, and if she would have been, what term would have been appropriate. If however I were to take the view that a term of imprisonment would not have been appropriate I may impose another penalty just as I might in the case of a person fit to be tried, such as a fine or a community service order, or a bond.

In the event that I were to nominate as appropriate a term of imprisonment it would then be for a special Tribunal, the Mental Health Review Tribunal, to decide whether the accused is still suffering from a mental illness and whether she should be detained in hospital for treatment. Her case would then come back to the court to decide whether an order should be made for her detention in hospital or otherwise. It is also possible that the accused could be tried in the normal way for the offence if she should become fit to be so tried before the period equivalent to any term of imprisonment I might nominate expires. But this would be a matter for the prosecuting authorities to decide.

I should emphasise that although I am telling you about the legal and practical consequences of any verdict that you may reach in order for you to understand the nature of the special proceeding in which we are engaged, your duty is confined to deciding whether, on the limited evidence available, the prosecution has proved beyond reasonable doubt that the accused committed the offence(s) charged. The consequences of the verdict and what is to happen to the accused thereafter are matters for the Mental Health Review Tribunal, the prosecuting authorities and the Court, not for you.”