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PARLIAMENT OF VICTORIA
Crimes (Mental Impairment and Unfitness to be
Tried) Act 1997
Act No.
TABLE OF PROVISIONS
Clause Page
PART 1--PRELIMINARY 1
1. Purposes 1
2. Commencement 2
3. Definitions 2
4. Application to courts and proceedings 5
5. Application to Magistrates' Court 5
PART 2--UNFITNESS TO STAND TRIAL 7
6. When is a person unfit to stand trial? 7
7. Presumptions, standard of proof, etc. 7
8. Committals 8
9. Reservation of question of fitness to stand trial by court 9
10. Court may make orders pending investigation into fitness 9
11. Procedure on investigation 11
12. What happens after an investigation? 12
13. Abridgment of adjournment 13
14. What happens at the end of an adjournment? 14
PART 3--SPECIAL HEARINGS 16
15. Purpose of special hearings 16
16. Procedure at special hearings 16
17. Findings at special hearings 17
18. Effect of findings 18
19. Court may make orders pending making of supervision order 18
PART 4--DEFENCE OF MENTAL IMPAIRMENT 20
20. Defence of mental impairment 20
21. Presumptions, standard of proof, etc. 20
22. When may the question of mental impairment be raised? 21
23. Effect of finding of not guilty because of mental impairment 21
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Clause Page
24. Court may make orders pending making of supervision order 21
25. Abrogation of defence of insanity 22
PART 5--DISPOSITION OF PEOPLE DECLARED TO BE
LIABLE TO SUPERVISION 23
26. Supervision orders 23
27. How long does a supervision order last? 24
28. Nominal term of supervision order 24
29. Non-compliance with non-custodial supervision order 26
30. Emergency power of apprehension 27
31. Application for variation or revocation of supervision order 28
32. Variation of custodial supervision orders 29
33. Variation or revocation of non-custodial supervision orders 30
34. Appeals against variations or revocations of supervision orders 30
35. Major reviews 31
36. Defendant to be present at hearings 31
37. Other parties may appear 32
38. Rules of evidence not to apply in certain cases 33
PART 6--PRINCIPLES ON WHICH COURT IS TO ACT,
REPORTS AND CERTIFICATES 34
39. Principle to be applied 34
40. Matters to which the court is to have regard 34
41. Reports on mental condition of defendants 35
42. Reports of family members and victims 37
43. When and how is a report to be made? 38
44. Distribution of report 38
45. Admissibility of report 38
46. Examination of victim or family member 39
47. Certificate of available services 39
PART 7--LEAVE OF ABSENCE 41
Division 1--Leave of absence 41
48. Application of Division 41
49. What types of leave may be granted? 41
50. Special leave 41
51. What is on-ground leave? 42
52. What are the surrounds? 42
53. What is limited off-ground leave? 43
54. Granting of on-ground or limited off-ground leave 43
55. Suspension of special leave, on-ground leave or limited off-
ground leave 44
56. What is extended leave? 44
57. Granting of extended leave 44
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Clause Page
58. Suspension of extended leave 45
Division 2--Forensic Leave Panel 46
59. Establishment of Panel 46
60. Functions of the Panel 47
61. Staff 47
62. Secrecy 48
63. Annual Report 48
Division 3--Procedure of Panel 49
64. Procedure of the Panel 49
65. Evidence 50
66. Reasons 50
67. Appointment of people to assist the Panel 51
68. Notice of hearings 51
69. Hearing not invalidated due to lack of notice 51
70. Appearance and representation at Panel hearings 52
71. Proceedings to be closed to public 53
72. Protection of members etc. 53
73. Offences 54
PART 8--GENERAL 55
74. Service of notices of hearings to family members and victims 55
75. Suppression orders 55
76. Inadmissibility of evidence in other proceedings 56
77. Delegation by Secretary to the Department of Human Services 56
78. Abolition of Governor's pleasure orders 57
79. Supreme Court--limitation of jurisdiction 57
80. Regulations 57
PART 9--AMENDMENT OF OTHER ACTS 58
81. Amendment of Corrections Act 1986 58
82. Amendment of Crimes Act 1958 58
83. Amendment of Intellectually Disabled Persons' Services Act
1986 60
84. New section 21A inserted 61
21A. Transfer of persons detained in prison under Crimes
(Mental Impairment and Unfitness to be Tried) Act
1997 61
85. New Division 2A of Part 5 inserted 64
Division 2A--Provisions Applicable to Forensic Residents 64
43A. Status of forensic residents 64
43B. Security conditions 64
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Clause Page
43C. Transfer of forensic resident to another residential
service 64
43D. Leave of absence for forensic resident 65
43E. Apprehension of forensic resident absent without leave 65
86. Amendment of Mental Health Act 1986 65
87. New Division 4 of Part 3 inserted 67
Division 4--Forensic Patients 67
17. Transfer of persons detained in prison under Crimes
(Mental Impairment and Unfitness to be Tried) Act
1997 67
17A. Status of forensic patients 68
17B. Security conditions 68
88. New Division 5 of Part 4 inserted 69
Division 5--Forensic Patients 69
53AB. Transfer of forensic patient to another approved mental
health service 69
53AC. Leave of absence for forensic patient 70
53AD. Apprehension of forensic patient absent without leave 70
PART 10--SAVINGS AND TRANSITIONAL PROVISIONS 72
89. Savings and transitional provisions 72
_______________
SCHEDULES 73
SCHEDULE 1--Provisions with respect to members of the panel 73
SCHEDULE 2--Provisions with respect to the procedure of the panel 77
SCHEDULE 3--Savings and transitional provisions 81
NOTES 83
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PARLIAMENT OF VICTORIA
A BILL
to reform the law relating to fitness to stand trial for criminal offences
and to the defence of insanity, to amend the Corrections Act 1986,
the Crimes Act 1958, the Intellectually Disabled Persons' Services
Act 1986 and the Mental Health Act 1986 and for other purposes.
Crimes (Mental Impairment and
Unfitness to be Tried) Act 1997
The Parliament of Victoria enacts as follows:
PART 1--PRELIMINARY
1. Purposes
The purposes of this Act are--
(a) to define the criteria for determining if a
5 person is unfit to stand trial;
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(b) to replace the common law defence of
insanity with a statutory defence of mental
impairment;
(c) to provide new procedures for dealing with
5 people who are unfit to stand trial or who are
found not guilty because of mental
impairment.
2. Commencement
(1) This Part comes into operation on the day on
10 which this Act receives the Royal Assent.
(2) Subject to sub-section (3), the remaining
provisions of this Act come into operation on a
day or days to be proclaimed.
(3) If a provision referred to in sub-section (2) does
15 not come into operation within a period of 3
months beginning on, and including, the day on
which this Act receives the Royal Assent, it
comes into operation on the first day after the end
of that period.
20 3. Definitions
In this Act--
"appropriate place" means--
(a) an approved mental health service; or
(b) a residential service;
25 "approved mental health service" has the same
meaning as in the Mental Health Act 1986;
"authorised psychiatrist" has the same meaning
as in the Mental Health Act 1986;
"chief psychiatrist" has the same meaning as in
30 the Mental Health Act 1986;
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"conduct" includes doing an act and making an
omission;
"contracted service provider" has the same
meaning as in the Intellectually Disabled
5 Persons' Services Act 1986;
"court" means Supreme Court or County Court;
"custodial supervision order" means a
supervision order referred to in section
26(2)(a);
10 "extended leave" has the meaning given in
section 56;
"family member" of a person means a spouse or
de facto spouse, parent, guardian, sibling or
child of the person;
15 "forensic patient" means--
(a) a person--
(i) remanded in custody in an
approved mental health service; or
(ii) committed to custody in an
20 approved mental health service by
a supervision order--
under this Act; or
(b) a person transferred from a prison to an
approved mental health service under
25 section 17 of the Mental Health Act
1986;
"forensic resident" means--
(a) a person--
(i) remanded in custody in a
30 residential service; or
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(ii) committed to custody in a
residential service by a
supervision order--
under this Act; or
5 (b) a person transferred from a prison to a
residential service under section 21A of
the Intellectually Disabled Persons'
Services Act 1986;
"investigation" means investigation under Part 2;
10 "judicial member" of the Panel means a member
referred to in section 59(2)(a) or (b);
"limited off-ground leave" has the meaning
given in section 53;
"non-custodial supervision order" means a
15 supervision order referred to in section
26(2)(b);
"offence" includes conduct that would, but for
the perpetrator's mental impairment or
unfitness to be tried, have constituted an
20 offence;
"on-ground leave" has the meaning given in
section 51;
"Panel" means Forensic Leave Panel established
by section 59;
25 "President" means President of the Panel;
"prison" has the same meaning as in the
Corrections Act 1986;
"registered medical practitioner" has the same
meaning as in the Medical Practice Act
30 1994;
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"registered psychologist" has the same meaning
as in the Psychologists Registration Act
1987;
"residential service" means--
5 (a) a registered residential service, a
residential institution or a residential
program within the meaning of the
Intellectually Disabled Persons'
Services Act 1986; or
10 (b) a residential service provided under that
Act by a contracted service provider;
"special hearing" means a hearing under Part 3;
"special leave" means leave of absence granted
under section 50;
15 "supervision order" means an order made under
section 26;
"surrounds" has the meaning given in section
52;
"victim", in relation to an offence, means a
20 person who suffered injury, loss or damage
as a direct result of the offence.
4. Application to courts and proceedings
Except as provided by sections 5 and 25(1), this
Act applies only in relation to trials of indictable
25 offences in the Supreme Court or the County
Court and proceedings ancillary or incidental to,
or connected with or arising out of, those trials,
including committal proceedings.
5. Application to Magistrates' Court
30 The defence of mental impairment as provided for
in section 20(1) and the presumption in section
21(1) apply to summary offences and to indictable
offences tried summarily.
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_______________
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PART 2--UNFITNESS TO STAND TRIAL
6. When is a person unfit to stand trial?
(1) A person is unfit to stand trial for an offence if,
because the person's mental processes are
5 disordered or impaired, the person is or, at some
time during the trial, will be--
(a) unable to understand the nature of the
charge; or
(b) unable to enter a plea to the charge and to
10 exercise the right to challenge jurors or the
jury; or
(c) unable to understand the nature of the trial
(namely that it is an inquiry as to whether the
person committed the offence); or
15 (d) unable to follow the course of the trial; or
(e) unable to understand the substantial effect of
any evidence that may be given in support of
the prosecution; or
(f) unable to give instructions to his or her legal
20 practitioner.
(2) A person is not unfit to stand trial only because he
or she is suffering from memory loss.
7. Presumptions, standard of proof, etc.
(1) A person is presumed to be fit to stand trial.
25 (2) The presumption is rebutted only if it is
established, on an investigation under this Part,
that the person is unfit to stand trial.
(3) The question of a person's fitness to stand trial--
(a) is a question of fact; and
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(b) is to be determined on the balance of
probabilities by a jury empanelled for that
purpose.
(4) If the question of a person's fitness to stand trial is
5 raised by the prosecution or the defence, the party
raising it bears the onus of rebutting the
presumption of fitness.
(5) If the question is raised by the trial judge, the
prosecution has carriage of the matter, but no
10 party bears any onus of proof in relation to it.
8. Committals
(1) If the question of a defendant's fitness to stand
trial arises at a committal hearing for an indictable
offence--
15 (a) the committal hearing must be completed in
accordance with Schedule 5 to the
Magistrates' Court Act 1989; and
(b) the defendant must not be discharged only
because the question has been raised; and
20 (c) if the defendant is committed for trial, the
question must be reserved for consideration
by the trial judge.
(2) Subject to sub-section (3), if a defendant is
committed for trial and the question of his or her
25 fitness to stand trial has been reserved under sub-
section (1)(c)--
(a) a presentment or indictment must be filed in
respect of the offence; and
(b) the issue of whether there is a real and
30 substantial question as to the defendant's
fitness to stand trial must be determined by
the trial judge; and
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(c) if the judge determines that there is a real
and substantial question, an investigation
must be held under this Part--
within 3 months after the committal.
5 (3) The court before which the defendant is to be tried
may at any time, whether or not the period
referred to in sub-section (2) has expired, extend
the period for a further period not exceeding 3
months.
10 (4) The period referred to in sub-section (2) may be
extended under sub-section (3) more than once.
9. Reservation of question of fitness to stand trial by
court
(1) At any time after a presentment or indictment has
15 been filed, if it appears to the court before which
the defendant is to be tried that there is a real and
substantial question as to the defendant's fitness to
stand trial, the court must reserve the question of
the defendant's fitness to stand trial for
20 investigation under this Part.
(2) At any time during a trial, if it appears to the trial
judge that there is a real and substantial question
as to the defendant's fitness to stand trial, the
judge must adjourn or discontinue the trial and
25 proceed with an investigation under this Part.
(3) Nothing in this Act prevents the question of a
defendant's fitness to stand trial from being raised
more than once in the same proceedings.
(4) For the purposes of sections 353(3) and 359A of
30 the Crimes Act 1958, time ceases to run from the
time that the question of a defendant's fitness to be
tried is reserved for investigation until the
investigation has been completed.
10. Court may make orders pending investigation into
35 fitness
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(1) A court that reserves for investigation the question
of a defendant's fitness to stand trial may make
any one or more of the following orders--
(a) an order granting the defendant bail;
5 (b) subject to sub-section (2), an order
remanding the defendant in custody in an
appropriate place for a specified period;
(c) subject to sub-section (3), an order
remanding the defendant in custody in a
10 prison for a specified period;
(d) if it is of the opinion that it is in the interests
of justice to do so, an order--
(i) that the defendant undergo an
examination by a registered medical
15 practitioner or registered psychologist;
and
(ii) that the results of the examination be
put before the court;
(e) any other order the court thinks appropriate.
20 (2) The court must not make an order remanding a
defendant in custody in an appropriate place
unless it has received a certificate under section
47 stating that the facilities or services necessary
for that order are available.
25 (3) The court must not make an order remanding a
defendant in custody in a prison unless satisfied
that there is no practicable alternative in the
circumstances.
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11. Procedure on investigation
(1) On an investigation into a defendant's fitness to
stand trial--
(a) the court must hear any relevant evidence
5 and submissions put to the court by the
prosecution or the defence;
(b) if of the opinion that it is in the interests of
justice to do so, the trial judge may--
(i) call evidence on his or her own
10 initiative;
(ii) require the defendant to undergo an
examination by a registered medical
practitioner or registered psychologist;
(iii) require the results of any such
15 examination to be put before the court.
(2) The Juries Act 1967, except section 34, applies to
an investigation as if the investigation were a
criminal inquest within the meaning of that Act.
(3) At the commencement of the investigation, the
20 judge must explain to the jury--
(a) the reason for the investigation; and
(b) the findings which may be made; and
(c) that the standard of proof required in relation
to the defendant's fitness to stand trial is the
25 balance of probabilities.
(4) If the jury finds that the defendant is unfit to stand
trial, the judge must--
(a) determine, by reference to any relevant
evidence and on the balance of probabilities,
30 whether or not the defendant is likely to
become fit to stand trial within the next 12
months; and
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(b) if the judge determines that the defendant is
likely to become fit within the next 12
months, specify the period by the end of
which the defendant is likely to be fit to
5 stand trial.
(5) For the purposes of sub-section (4) the judge may
call further evidence on his or her own initiative.
(6) The jury empanelled to decide the question of a
defendant's fitness to stand trial must not decide
10 any other matter in relation to the proceedings for
the offence.
12. What happens after an investigation?
(1) If the jury finds that the defendant is fit to stand
trial, the trial must be commenced or resumed in
15 accordance with usual criminal procedures.
(2) If the jury finds that the defendant is not fit to
stand trial and the judge determines that the
defendant is likely to become fit within the next
12 months, the judge must adjourn the matter for
20 the period specified under section 11(4)(b) and
may--
(a) grant the defendant bail; or
(b) subject to sub-section (3), remand the
defendant in custody in an appropriate place
25 for a specified period (not exceeding the
period specified under section 11(4)(b)); or
(c) subject to sub-section (4), remand the
defendant in custody in a prison for a
specified period (not exceeding the period
30 specified under section 11(4)(b)); or
(d) make any other order the judge thinks
appropriate.
(3) The judge must not remand a defendant in custody
in an appropriate place unless it has received a
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certificate under section 47 stating that the
facilities or services necessary for that order are
available.
(4) The judge must not remand a defendant in custody
5 in a prison unless it is satisfied that there is no
practicable alternative in the circumstances.
(5) If the jury finds that the defendant is not fit to
stand trial and the judge determines that the
defendant is not likely to become fit within the
10 next 12 months, the court must proceed to hold a
special hearing under Part 3 within 3 months.
13. Abridgment of adjournment
(1) At any time during a period of adjournment under
section 12(2) the defendant or the Director of
15 Public Prosecutions may apply to the court--
(a) for an order that the trial commence or
resume, if the defendant or the Director of
Public Prosecutions is of the opinion that the
defendant has become fit to stand trial; or
20 (b) for an order that the court proceed to hold a
special hearing, if the defendant or the
Director of Public Prosecutions is of the
opinion that the defendant will not become
fit to stand trial by the end of the period of
25 12 months after the first finding of unfitness.
(2) An application under sub-section (1) must be
accompanied by a report on the mental condition
of the defendant by a registered medical
practitioner or registered psychologist.
30 (3) On an application under sub-section (1) the court
must--
(a) dismiss the application; or
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(b) if satisfied that the defendant has become fit
to stand trial, make an order that the trial
commence or resume; or
(c) if satisfied that the defendant will not
5 become fit to stand trial by the end of the
period of 12 months after the first finding of
unfitness, make an order that the court
proceed to hold a special hearing within 3
months.
10 14. What happens at the end of an adjournment?
(1) At the end of the period of adjournment under
section 12(2), the defendant is presumed to be fit
to stand trial unless a real and substantial question
of fitness is raised again.
15 (2) If a real and substantial question of fitness is
raised again, the judge must--
(a) extend the period of adjournment for a
further period, but not so that the total period
since the first finding of unfitness exceeds 12
20 months; or
(b) proceed to hold a special hearing under Part
3 within 3 months.
(3) If the judge extends the period of adjournment
under sub-section (2)(a), the judge may make any
25 order referred to in section 12(2) or vary any order
already made under that section (and for that
purpose section 12(3) and (4) apply accordingly).
(4) At the end of the period of adjournment--
(a) if the trial of the defendant has commenced,
30 it must be resumed as soon as practicable in
accordance with usual criminal procedures;
or
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(b) subject to sub-section (5), if the trial has not
commenced, it must be commenced within 3
months.
(5) The court before which the defendant is to be tried
5 may at any time, whether or not the period
referred to in sub-section (4)(b) has expired,
extend that period for a further period not
exceeding 3 months.
(6) The period for commencement of a trial may be
10 extended under sub-section (5) more than once.
(7) An extension of time under sub-section (5) also
serves, if necessary, as an extension of time for
the purposes of section 353(5) or 359A(2) of the
Crimes Act 1958 (as the case may be).
15 _______________
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PART 3--SPECIAL HEARINGS
15. Purpose of special hearings
The purpose of a special hearing is to determine
whether, on the evidence available, the
5 defendant--
(a) is not guilty of the offence; or
(b) is not guilty of the offence because of mental
impairment; or
(c) committed the offence charged or an offence
10 available as an alternative.
16. Procedure at special hearings
(1) A special hearing is to be conducted as nearly as
possible as if it were a criminal trial and, for that
purpose, the Juries Act 1967 applies, subject to
15 this section, as if a special hearing were a criminal
inquest within the meaning of that Act.
(2) Without limiting sub-section (2), at a special
hearing--
(a) the defendant must be taken to have pleaded
20 not guilty to the offence; and
(b) the defendant's legal representative (if any)
may exercise the defendant's rights to
challenge jurors (either for cause or
peremptorily) or the jury;
25 (c) the defendant may raise any defence that
could be raised if the special hearing were a
criminal trial, including the defence of
mental impairment;
(d) the rules of evidence apply;
30 (e) section 360A of the Crimes Act 1958
(adjournment or stay of trial) applies as if the
special hearing were a criminal trial;
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(f) any alternative verdict that would be
available if the special hearing were a
criminal trial is available to the jury.
(3) At the commencement of a special hearing, the
5 judge must explain to the jury--
(a) that the defendant is unfit to be tried in
accordance with the usual procedures of a
criminal trial; and
(b) the meaning of being unfit to stand trial; and
10 (c) the purpose of the special hearing; and
(d) the findings that are available; and
(e) the standard of proof required for those
findings.
17. Findings at special hearings
15 (1) The following findings are available to the jury at
a special hearing--
(a) not guilty of the offence charged;
(b) not guilty of the offence because of mental
impairment;
20 (c) the defendant committed the offence charged
or an offence available as an alternative.
(2) To make a finding under sub-section (1)(c) the
jury must be satisfied beyond reasonable doubt,
on the evidence available, that the defendant
25 committed the offence charged or an offence
available as an alternative.
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18. Effect of findings
(1) If a jury makes a finding under section 17(1)(a),
the defendant is to be taken for all purposes to
have been found not guilty at a criminal trial.
5 (2) A finding under section 17(1)(b) is to be taken for
all purposes to be a finding at a criminal trial of
not guilty because of mental impairment.
(3) A finding under section 17(1)(c)--
(a) constitutes a qualified finding of guilt and
10 does not constitute a basis in law for any
conviction for the offence to which the
finding relates; and
(b) constitutes a bar to further prosecution in
respect of the same circumstances; and
15 (c) is subject to appeal in the same manner as if
the defendant had been convicted of the
offence in a criminal trial.
(4) If a jury makes a finding under section 17(1)(c)1,
the judge must--
20 (a) declare that the defendant is liable to
supervision under Part 5; or
(b) order the defendant to be released
unconditionally2.
19. Court may make orders pending making of
25 supervision order
(1) If the judge declares a defendant liable to
supervision, the judge may make any one or more
of the following orders pending the making of a
supervision order--
30 (a) an order granting the defendant bail;
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(b) subject to sub-section (2), an order
remanding the defendant in custody in an
appropriate place;
(c) subject to sub-section (3), an order
5 remanding the defendant in custody in a
prison;
(d) if he or she is of the opinion that it is in the
interests of justice to do so, an order--
(i) that the defendant undergo an
10 examination by a registered medical
practitioner or registered psychologist;
and
(ii) that the results of the examination be
put before the court;
15 (e) any other order the judge thinks appropriate.
(2) The judge must not make an order remanding a
defendant in custody in an appropriate place
unless the court has received a certificate under
section 47 stating that the facilities or services
20 necessary for that order are available.
(3) The judge must not make an order remanding a
defendant in custody in a prison unless satisfied
that there is no practicable alternative in the
circumstances.
25 _______________
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PART 4--DEFENCE OF MENTAL IMPAIRMENT
20. Defence of mental impairment
(1) The defence of mental impairment is established
for a person charged with an offence if, at the time
5 of engaging in conduct constituting the offence,
the person was suffering from a mental
impairment that had the effect that--
(a) he or she did not know the nature and quality
of the conduct; or
10 (b) he or she did not know that the conduct was
wrong (that is, he or she could not reason
with a moderate degree of sense and
composure about whether the conduct, as
perceived by reasonable people, was wrong).
15 (2) If the defence of mental impairment is established,
the person must be found not guilty because of
mental impairment.
21. Presumptions, standard of proof, etc.
(1) A person is presumed not to have been suffering
20 from a mental impairment having the effect
referred to in section 20(1) until the contrary is
proved.
(2) The question whether a person was suffering from
a mental impairment having the effect referred to
25 in section 20(1)--
(a) is a question of fact; and
(b) is to be determined by a jury on the balance
of probabilities.
(3) If the defence of mental impairment is raised by
30 the prosecution or the defence, the party raising it
bears the onus of rebutting the presumption.
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22. When may the question of mental impairment be
raised?
(1) The question of mental impairment may be raised
at any time during a trial by the defence or, with
5 the leave of the trial judge, by the prosecution.
(2) If there is admissible evidence that raises the
question of mental impairment--
(a) the judge must direct the jury to consider the
question and explain to the jury the findings
10 which may be made and the legal
consequences of those findings; and
(b) if the jury finds the defendant not guilty, it
must specify in its verdict whether or not it
so finds because of mental impairment.
15 (3) A defendant must not be discharged at a
committal hearing only because the defence of
mental impairment has been raised.
23. Effect of finding of not guilty because of mental
impairment
20 If a defendant is found not guilty because of
mental impairment, the court must--
(a) declare that the defendant is liable to
supervision under Part 5; or
(b) order the defendant to be released
unconditionally3.
25
24. Court may make orders pending making of
supervision order
(1) If the court declares a defendant liable to
supervision, the court may make any one or more
30 of the following orders pending the making of a
supervision order--
(a) an order granting the defendant bail;
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(b) subject to sub-section (2), an order
remanding the defendant in custody in an
appropriate place;
(c) subject to sub-section (3), an order
5 remanding the defendant in custody in a
prison;
(d) if it is of the opinion that it is in the interests
of justice to do so, an order--
(i) that the defendant undergo an
10 examination by a registered medical
practitioner or registered psychologist;
and
(ii) that the results of the examination be
put before the court;
15 (e) any other order the court thinks appropriate.
(2) The court must not make an order remanding a
defendant in custody in an appropriate place
unless the court has received a certificate under
section 47 stating that the facilities or services
20 necessary for that order are available.
(3) The court must not make an order remanding a
defendant in custody in a prison unless satisfied
that there is no practicable alternative in the
circumstances.
25 25. Abrogation of defence of insanity
(1) The common law defence of insanity is abrogated.
(2) A jury is not entitled in any criminal trial to return
a verdict of not guilty on account of insanity.
_______________
30
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PART 5--DISPOSITION OF PEOPLE DECLARED TO BE
LIABLE TO SUPERVISION
26. Supervision orders
(1) If a court declares that a person is liable to
5 supervision under this Part, the court must make a
supervision order in respect of the person4.
(2) A supervision order may--
(a) commit the person to custody ("custodial
supervision order")--
10 (i) subject to sub-section (3), in an
appropriate place; or
(ii) subject to sub-section (4), in a prison;
or
(b) release the person on conditions decided by
15 the court and specified in the order ("non-
custodial supervision order").
(3) The court must not make a supervision order--
(a) committing a person to custody in an
appropriate place; or
20 (b) providing for a person to receive services in
an appropriate place or from a contracted
service provider or the Secretary to the
Department of Human Services--
unless it has received a certificate under section
25 47 stating that the facilities or services necessary
for the order are available.
(4) The court must not make a supervision order
committing a person to custody in a prison unless
it is satisfied that there is no practicable
30 alternative in the circumstances.
(5) A supervision order is subject to appeal by the
person in respect of whom it was made or the
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Director of Public Prosecutions in the same
manner as a sentence5.
(6) In addition to sub-section (5), the Secretary to the
Department of Human Services may appeal to the
5 Court of Appeal against a supervision order if the
Secretary considers that a different supervision
order should have been made and that an appeal
should be brought in the public interest.
(7) On an appeal under sub-section (6) the Court of
10 Appeal, if it thinks that a different supervision
order should have been made, may quash the
supervision order and make another supervision
order in substitution for it.
(8) A person who is detained in custody in an
15 appropriate place under a supervision order is
deemed to be in the custody of the Secretary to the
Department of Human Services6.
27. How long does a supervision order last?
(1) A supervision order is for an indefinite term.
20 (2) In the case of a non-custodial supervision order,
the court may direct when making the order that
the matter be brought back to the court for review
at the end of the period specified by the court7.
28. Nominal term of supervision order
25 (1) The court must set a nominal term of a
supervision order in accordance with the
following table--
Offence person found not guilty of
because of mental impairment or found
at special hearing to have committed Nominal term
(a) murder or treason 25 years
(b) a serious offence (within the meaning a period
equivalent to
of the Sentencing Act 1991) other
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Offence person found not guilty of
because of mental impairment or found
at special hearing to have committed Nominal term
than-- the maximum
term of
(i) murder; or
imprisonment
available for
(ii) an offence against section 20 of
the offence
the Crimes Act 1958 (threats to
kill)
(c) any other offence for which there is a a period
statutory maximum term of equivalent to
imprisonment half the
maximum
term of
imprisonment
available for
the offence
(d) any other offence punishable by a period
imprisonment but for which there is specified by
no statutory maximum term the court
(2) If a person--
(a) is found not guilty because of mental
impairment of more than one offence; or
(b) is found at a special hearing to have
5 committed more than one offence--
the nominal term must be calculated by reference
to the offence that carries the longest maximum
term of imprisonment.
(3) For the purpose of sub-section (2), the maximum
10 term of imprisonment--
(a) for murder or treason is to be taken to be 25
years;
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(b) for any other offence punishable by
imprisonment for which there is no statutory
maximum term, is a period specified by the
court.
5 29. Non-compliance with non-custodial supervision order
(1) If at any time it appears to a person having the
supervision of a person under a non-custodial
supervision order that the person subject to the
order has failed to comply with it, he or she may
10 apply to the court that made the order for a
variation of the order.
(2) Notice of an application under sub-section (1)
must be given, at least 14 days before the hearing,
to the person subject to the order.
15 (3) The court may order that a warrant to arrest be
issued against the person subject to the order if he
or she does not attend before the court on the
hearing of the application.
(4) If the court is satisfied by evidence on oath,
20 whether orally or by affidavit, or by the admission
of the person subject to the order that the person
has failed to comply with the order, the court
must, by order--
(a) confirm the order; or
25 (b) vary the conditions of the order; or
(c) vary the order to a custodial supervision
order.
(5) If the court varies the order to a custodial
supervision order before the end of the nominal
30 term, that nominal term continues to run.
(6) If the court varies the order to a custodial
supervision order, any direction under section
27(2) with respect to the order lapses, unless the
court directs otherwise.
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30. Emergency power of apprehension
(1) A person subject to a non-custodial supervision
order may be apprehended by an appropriate
person if the appropriate person reasonably
5 believes--
(a) that the person subject to the order has failed
to comply with it; and
(b) that the safety of the person subject to the
order or members of the public will be
10 seriously endangered if the person is not
apprehended.
(2) Subject to sub-section (4), a person who is
apprehended under sub-section (1) is to be taken
and detained in an appropriate place and treated or
15 provided with services, if necessary, for his or her
condition.
(3) For the purpose of apprehending a person and
taking them to an appropriate place, the
appropriate person may with such assistance as is
20 required and such force as may be reasonably
necessary--
(a) enter any premises in which he or she has
reasonable grounds for believing that the
person to be apprehended may be found; and
25 (b) if necessary to enable that person to be so
apprehended and taken safely, use such
restraint as may be reasonably necessary.
(4) A person who is apprehended under this section
must be released from detention within 48 hours
30 unless, within that period, an application is made
under section 29(1) for variation of the person's
supervision order.
(5) The court must hear an application referred to in
sub-section (4) as soon as possible.
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(6) In this section--
"appropriate person", in relation to a person
subject to a supervision order, means--
(a) a person having supervision of the
5 person under the order; or
(b) a member of the police force; or
(c) an ambulance officer; or
(d) a person who is a member of a class
prescribed for the purposes of this
10 section.
31. Application for variation or revocation of supervision
order
(1) Any of the following may apply to the court that
made a supervision order for a variation of the
15 order (in the case of a custodial supervision order)
or a variation or revocation of the order (in the
case of a non-custodial supervision order)--
(a) the person subject to the order;
(b) a person having the custody, care, control or
20 supervision of that person;
(c) the Director of Public Prosecutions.
(2) If the court refuses an application under this
section by a person who is subject to a custodial
supervision order, a later application cannot be
25 made by that person for 3 years or such lesser
period as the court directs.
(3) An applicant under this section must give notice
of the application, at least 14 days before the
hearing, to--
30 (a) the person subject to the order (unless he or
she is the applicant); and
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(b) a family member (if any) of the person
subject to the order; and
(c) the Director of Public Prosecutions (unless
he or she is the applicant).
5 (4) A court that receives an application under this
section must given notice of the application, at
least 14 days before the hearing, to the victims (if
any) of the offence with which the person subject
to the order was charged.
10 (5) Notice need not be given under sub-section (3)(b)
or (4) to a person whose whereabouts have not,
after reasonable inquiry, been ascertained.
32. Variation of custodial supervision orders
(1) On an application under section 31 for variation of
15 a custodial supervision order, the court must, by
order--
(a) confirm the order; or
(b) vary the place of custody; or
(c) subject to this section, vary the order to a
20 non-custodial supervision order.
(2) The court must not vary a custodial supervision
order to a non-custodial supervision order during
the nominal term unless satisfied on the evidence
available that the safety of the person subject to
25 the order or members of the public will not be
seriously endangered as a result of the release of
the person on a non-custodial supervision order.
(3) In the case of a forensic patient or forensic
resident--
30
(a) the court must not vary a custodial
supervision order to a non-custodial
supervision order (whether during or after
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the nominal term) unless the forensic patient
or forensic resident has completed a period
of at least 12 months extended leave granted
by the court under section 57; and
5 (b) in deciding an application to vary a custodial
supervision order to a non-custodial
supervision order, the court must take into
account whether or not the forensic patient
or forensic resident has complied with any
10 conditions of their extended leave.
(4) If the court varies a custodial supervision order to
a non-custodial supervision order before the end
of the nominal term, that nominal term continues
to run.
15 (5) Section 27(2) applies to a variation of a custodial
supervision order to a non-custodial supervision
order.
33. Variation or revocation of non-custodial supervision
orders
20 On an application under section 31 for variation or
revocation of a non-custodial supervision order or
on a review directed under section 27(2), the court
must, by order--
(a) confirm the order; or
25 (b) vary the conditions of the order; or
(c) vary the order to a custodial supervision
order; or
(d) revoke the order.
30
34. Appeals against variations or revocations of
supervision orders
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An order confirming or varying a supervision
order is subject to appeal in the same manner as a
supervision order8.
35. Major reviews
5 (1) At least 3 months before the end of the nominal
term of a supervision order, the court that made
the order must undertake a major review.
(2) The purpose of a major review is to determine
whether the person subject to the order is able to
10 be released from it.
(3) On a major review, the court--
(a) if the supervision order is a custodial
supervision order--
(i) must vary the order to a non-custodial
15 supervision order, unless satisfied on
the evidence available that the safety of
the person subject to the order or
members of the public will be seriously
endangered as a result of the release of
20 the person on a non-custodial
supervision order; or
(ii) if so satisfied, must confirm the order
or vary the place of custody;
(b) if the supervision order is a non-custodial
25 supervision order--
(i) may confirm the order; or
(ii) may vary the conditions of the order; or
(iii) may revoke the order.
30
36. Defendant to be present at hearings
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(1) Unless sub-section (4) applies, at any hearing in
which a court is considering making, varying or
revoking a supervision order, the person who is to
be, or is, subject to the order has the right to
5 appear before the court in person.
(2) If the person decides not to appear before the
court, the court must satisfy itself that they have
been informed of their right to appear.
(3) The person may be legally represented at any
10 hearing referred to in sub-section (1).
(4) If the court is satisfied that the appearance of the
person before the court would be detrimental to
the person's health, the court may order that the
person not appear at the hearing in person.
15 (5) If the person is in custody, the court may order the
person in charge of the place in which they are in
custody to cause them to be brought before the
court for the purposes of the hearing.
(6) Section 360A of the Crimes Act 1958
20 (adjournment or stay of trial) applies to a hearing
referred to in sub-section (1) as if the hearing
were a criminal trial.
(7) Nothing in Part IIA of the Evidence Act 1958
applies to a hearing referred to in sub-section (1).
25 37. Other parties may appear
(1) At any hearing referred to in section 36(1)--
(a) the State or the Director of Public
Prosecutions or both are entitled to appear
before the court if the State or Director of
30 Public Prosecutions considers that they have
a legitimate interest in the matter; and
(b) the court may allow any other person having
a substantial interest in the matter to appear
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in person and, if the court gives leave, to be
legally represented.
(2) A person who is entitled or allowed to appear in a
matter is a party to that matter.
5 38. Rules of evidence not to apply in certain cases
In a major review or a hearing of an application
for variation or revocation of a supervision order,
the court is not bound by rules or practice as to
evidence but may inform itself in relation to any
10 matter in such manner as it thinks fit.
_______________
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PART 6--PRINCIPLES ON WHICH COURT IS TO ACT,
REPORTS AND CERTIFICATES
39. Principle to be applied
In deciding whether to make, vary or revoke a
5 supervision order or to remand a person in
custody under this Act, the court must apply the
principle that restrictions on a person's freedom
and personal autonomy should be kept to the
minimum consistent with the safety of the
10 community.
40. Matters to which the court is to have regard
(1) In deciding whether or not to make, vary or
revoke an order under Part 3, 4 or 5 in relation to
a person, the court must have regard to--
15 (a) the nature of the person's mental impairment
or other condition or disability; and
(b) the relationship between the impairment,
condition or disability and the offending
conduct; and
20 (c) whether the person is, or would if released
be, likely to endanger themselves, another
person, or other people generally because of
his or her mental impairment; and
(d) the need to protect people from such danger;
25 and
(e) whether there are adequate resources
available for the treatment and support of the
person in the community; and
(f) any other matters the court thinks relevant.
30 (2) The court cannot order a person to be released
unconditionally or otherwise release a person
from custody under Part 3, 4 or 5, or significantly
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reduce the degree of supervision to which a
person is subject, unless it--
(a) has obtained and considered the report of at
least one registered medical practitioner or
5 registered psychologist, who has personally
examined the person, on--
(i) the person's mental condition; and
(ii) the possible effect of the proposed
order on the person's behaviour; and
10 (b) has considered the report submitted to the
court under section 41(1) or (3) (as the case
may be); and
(c) is satisfied that the person's family members
and the victims of the offence with which the
15 person was charged (if any), have been given
reasonable notice of the hearing at which the
release or reduction is proposed to be
ordered; and
(d) has considered any report of the family
20 members or victims made under section 42;
and
(e) has obtained and considered any other
reports the court considers necessary.
(3) Notice need not be given under sub-section (2)(c)
25 to a person whose whereabouts have not, after
reasonable inquiry, been ascertained.
41. Reports on mental condition of defendants
(1) If a person is declared to be liable to supervision
under Part 5, the appropriate person must arrange
30 to have prepared and filed with the court that
made the declaration a report, prepared by a
registered medical practitioner or registered
psychologist, on the mental condition of the
person containing--
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(a) a diagnosis and prognosis of the condition or
an outline of the person's behavioural
problems; and
(b) the person's response to treatment, therapy or
5 counselling (if any); and
(c) a suggested treatment or other plan for
managing the condition.
(2) The report must be filed within 30 days after the
declaration or within such longer period as the
10 court allows.
(3) If a supervision order is made in relation to the
person, the appropriate person must arrange to
have prepared and filed with the court that made
the order, at intervals of not more than 12 months
15 for the duration of the order, a report containing--
(a) a statement of any treatment, therapy or
counselling that the person has undergone, or
any services that the person has received,
since the making of the order or the last
20 report; and
(b) any changes to the prognosis of the person's
condition or the person's behavioural
problems and the plan for managing the
condition or problems.
25 (4) In this section--
"appropriate person" means--
(a) the Secretary to the Department of
Justice if the person declared liable to
supervision, or subject to a supervision
30 order, is in custody in a prison; or
(b) the Secretary to the Department of
Human Services if the person is--
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(i) in custody in an approved mental
health service or a residential
service; or
(ii) receiving treatment or services
5 under a supervision order from an
approved mental health service, a
residential service, a contracted
service provider or the Secretary
to the Department of Human
10 Services.
42. Reports of family members and victims
(1) For the purpose of--
(a) assisting counselling and treatment processes
for all people affected by an offence; and
15 (b) assisting the court in determining any
conditions it may impose on an order made
against a person under this Act--
a family member of the person or a victim of the
offence may make a report to the court.
20 (2) A report by a family member is to contain the
views of the family member on the conduct of the
person and the impact of that conduct on the
family member.
(3) A report by a victim is to contain particulars of
25 any injury, loss or damage suffered by the victim
as a direct result of the offence.
(4) A report may be made by another person on
behalf of a family member or victim--
(a) who is under the age of 18 years; or
30 (b) who the court is satisfied is incapable of
making the report because of mental
impairment or any other reason.
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43. When and how is a report to be made?
(1) A report under section 42 may be made to the
court--
(a) before the court makes an order under Part 3,
5 4 or 5 in respect of a person; or
(b) whenever an application is made for
variation or revocation of such an order; or
(c) on a major review.
(2) A report may be made--
10 (a) in writing by statutory declaration; or
(b) in writing by statutory declaration and orally
by sworn evidence.
44. Distribution of report
A person who makes a report under section 42
15 must, a reasonable time before the hearing is to
take place--
(a) file a copy with the court; and
(b) provide a copy to the person who is, or is to
be made subject to, the order or his or her
20 legal practitioner.
45. Admissibility of report
(1) The court may rule as inadmissible the whole or
any part of a report under section 42.
(2) A report under section 42 is not admissible in any
25 civil or criminal proceeding, other than the
proceeding in relation to which it was made,
except--
(a) a proceeding for an offence against section
314(1) of the Crimes Act 1958 (perjury) or
30 for any other offence that involves an
interference with the due administration of
justice; or
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(b) with the consent of the person who made the
report.
(3) A court, tribunal or person acting judicially may
rule as admissible in a proceeding before them
5 any matter inadmissible because of sub-section (2)
if satisfied, on the application of a party to the
proceeding, that it is in the interests of justice to
do so.
46. Examination of victim or family member
10 (1) The court, at the request of any party to the
proceedings, may call a person who has made a
report under section 42 to give evidence.
(2) A person who gives evidence under sub-section
(1) may be cross-examined and re-examined.
15 47. Certificate of available services
(1) A court must request the Secretary to the
Department of Human Services to provide the
court with a certificate of available services if the
court is considering--
20 (a) imposing a supervision order on a person; or
(b) making another order under this Act--
(i) that a person be placed in custody in an
appropriate place; or
(ii) that a person otherwise receive
25 treatment or services in an appropriate
place or services from a contracted
service provider or the Secretary to the
Department of Human Services.
(2) A certificate of available services must--
30 (a) state whether or not there are facilities or
services available for the custody, care or
treatment of the person (as the case
requires); and
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(b) if there are, give an outline of those facilities
or services.
(3) If there are no facilities or services available, the
certificate may contain any other options the
5 Secretary considers it appropriate for the court to
consider in making the proposed order.
(4) The Secretary must provide a certificate to the
court within 7 days after receiving a request under
sub-section (1) or within such longer period as the
10 court allows.
(5) The court may require the Secretary to give
evidence or to provide the court with a further
certificate to clarify or expand on the matters dealt
with in a certificate under this section.
15 _______________
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PART 7--LEAVE OF ABSENCE
Division 1--Leave of absence
48. Application of Division
This Division applies only in relation to forensic
5 patients and forensic residents who are subject to
a supervision order.
49. What types of leave may be granted?
The types of leave of absence that may be granted
to a forensic patient or forensic resident are--
10 (a) special leave of absence;
(b) on-ground leave;
(c) limited off-ground leave;
(d) extended leave.
50. Special leave
15 (1) A forensic patient or forensic resident, or a person
on their behalf, may apply for special leave of
absence, specifying the special circumstances for
which the leave is required.
(2) An application is to be made--
20 (a) in the case of a forensic patient, to the
authorised psychiatrist for the approved
mental health service;
(b) in the case of a forensic resident, to the
Secretary to the Department of Human
25 Services.
(3) The authorised psychiatrist or Secretary to the
Department of Human Services must grant an
application for special leave of absence if satisfied
that--
30 (a) there are special circumstances; and
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(b) the safety of members of the public will not
be seriously endangered.
(4) If the authorised psychiatrist or Secretary to the
Department of Human Services refuses to grant
5 special leave of absence to a forensic patient or
forensic resident, the forensic patient or forensic
resident may appeal to the Panel.
(5) On an appeal, the Panel may--
(a) confirm the decision of the authorised
10 psychiatrist or Secretary to the Department
of Human Services; or
(b) direct that the forensic patient or forensic
resident be allowed special leave of absence.
(6) Special leave of absence--
15 (a) cannot exceed 24 hours; and
(b) may be subject to such conditions as the
authorised psychiatrist or Secretary to the
Department of Human Services or the Panel
may specify.
20 51. What is on-ground leave?
On-ground leave allows a forensic patient or
forensic resident to be absent from the place of
custody but within the surrounds.
52. What are the surrounds?
25 (1) The "surrounds", in relation to an approved
mental health service or a residential service, is
the area declared under sub-section (2) to be the
surrounds in relation to that service.
(2) The Governor-in-Council, by notice published in
30 the Government Gazette, may declare an area
surrounding or adjacent to an approved mental
health service or a residential service to be the
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surrounds in relation to that approved mental
health service or residential service.
53. What is limited off-ground leave?
Limited off-ground leave allows a forensic patient
5 or forensic resident to be absent from the place of
custody--
(a) between the hours of 7.30am and 7.30pm;
and
(b) outside those hours on a maximum of 3
10 consecutive days in any 7 day period.
54. Granting of on-ground or limited off-ground leave
(1) A forensic patient or forensic resident may apply
to the Panel for on-ground leave or limited
off-ground leave.
15 (2) The Panel must not grant an application under
sub-section (1) unless satisfied on the evidence
available that the safety of the applicant or
members of the public will not be seriously
endangered as a result of the applicant being
20 allowed leave.
(3) The Panel may impose any conditions it considers
appropriate on on-ground leave or limited off-
ground leave, including a condition that the
person on leave comply with any direction of the
25 authorised psychiatrist (in the case of a forensic
patient) or the Secretary to the Department of
Human Services (in the case of a forensic
resident).
(4) On-ground leave or limited off-ground leave may
30 be granted for the period, not exceeding 6 months,
specified by the Panel.
(5) A person may apply for, and be granted, on-
ground leave or limited off-ground leave more
than once.
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55. Suspension of special leave, on-ground leave or
limited off-ground leave
(1) Special leave of absence, on-ground leave or
limited off-ground leave may be suspended at any
5 time by the chief psychiatrist (in the case of a
forensic patient) or the Secretary to the
Department of Human Services (in the case of a
forensic resident) if the chief psychiatrist or
Secretary is satisfied on the evidence available
10 that the safety of the person on leave or members
of the public will be seriously endangered if leave
is not suspended.
(2) If leave is suspended, the chief psychiatrist or
Secretary must confirm the suspension in writing
15 to the person formerly on leave.
(3) If the chief psychiatrist or Secretary is satisfied
that the reason for the suspension no longer exists,
he or she must lift the suspension immediately.
(4) The chief psychiatrist or Secretary must give
20 notice to the person or body that granted the leave
of any suspension or lifting of suspension under
this section (except where the Secretary suspends
special leave that he or she granted).
(5) A person whose leave is suspended under this
25 section is deemed not to have leave of absence
during the period of suspension.
56. What is extended leave?
Extended leave is leave for a forensic patient or
forensic resident to be absent from the place of
30 custody--
(a) for the period, not exceeding 12 months; and
(b) subject to the conditions (if any)--
specified by the court.
57. Granting of extended leave
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(1) A forensic patient or forensic resident may apply
to the court that made the supervision order to
which they are subject for extended leave.
(2) The court must not grant an application under sub-
5 section (1) unless satisfied on the evidence
available that the safety of the applicant or
members of the public will not be seriously
endangered as a result of the applicant being
allowed leave.
10 (3) In considering an application for extended leave
the court must have regard to any proposed plan
of leave submitted to the court by--
(a) in the case of a forensic patient, the
authorised psychiatrist for the approved
15 mental health service;
(b) in the case of a forensic resident, the
Secretary to the Department of Human
Services.
(4) A person may apply for, and be granted, extended
20 leave more than once.
58. Suspension of extended leave
(1) Extended leave may be suspended at any time by
the chief psychiatrist (in the case of a forensic
patient) or the Secretary to the Department of
25 Human Services (in the case of a forensic
resident) if the chief psychiatrist or Secretary is
satisfied on the evidence available that the safety
of the person on leave or members of the public
will be seriously endangered if leave is not
30 suspended.
(2) If extended leave is suspended, the chief
psychiatrist or Secretary must--
(a) confirm the suspension in writing to the
person formerly on leave; and
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(b) subject to sub-section (5), within 48 hours
after the suspension--
(i) make an application to the court that
granted the leave for revocation of the
5 leave; or
(ii) lift the suspension.
(3) The court must hear an application referred to in
sub-section (2)(b)(i) as soon as possible.
(4) On an application under sub-section (2)(b)(i) the
10 court may--
(a) if satisfied on the evidence available that the
safety of the forensic patient or forensic
resident or members of the public will be
seriously endangered if the suspension is not
15 confirmed or leave is not revoked, revoke the
leave; or
(b) if not satisfied, lift the suspension.
(5) If the chief psychiatrist or Secretary is satisfied
that the reason for the suspension no longer exists,
20 he or she must lift the suspension immediately.
(6) A person whose leave is suspended under this
section is deemed not to have leave of absence
during the period of suspension.
Division 2--Forensic Leave Panel
25 59. Establishment of Panel
(1) The Forensic Leave Panel is established.
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(2) The Panel consists of--
(a) one or more judges of the Supreme Court,
nominated by the Chief Justice of the
Supreme Court;
5 (b) one or more judges of the County Court,
nominated by the Chief Judge of the County
Court;
(c) the chief psychiatrist or his or her nominee;
(d) such other members as are necessary from
10 time to time for the proper functioning of the
Panel.
(3) Schedule 1 has effect with respect to members of
the Panel.
(4) If there is only one Supreme Court judge on the
15 Panel, he or she is the President of the Panel.
(5) If the Chief Justice nominates more than one
Supreme Court judge to the Panel, the Chief
Justice must nominate one of the judges as
President of the Panel.
20 60. Functions of the Panel
The functions of the Panel are--
(a) to hear applications for leave of absence, and
appeals in respect of special leave of absence
applications, by forensic patients and
25 forensic residents who are subject to
supervision orders;
(b) any other functions conferred on the Panel
by or under this or any other Act.
61. Staff
30 There may be appointed or employed under the
Public Sector Management Act 1992 any
officers and employees that are necessary for the
purposes of the Panel.
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62. Secrecy
(1) A person who--
(a) is or has at any time been a member or acting
member of the Panel; or
5 (b) is or has been present at any proceeding of
the Panel--
must not, either directly or indirectly, make a
record of, or divulge or communicate to any
person, any information that is or was acquired by
10 the person by reason of being or having been a
member or acting member of the Panel or present
at a proceeding of the Panel, except as permitted
by this section.
Penalty: 10 penalty units.
15 (2) A person referred to in sub-section (1) may make
a record of, or divulge or communicate
information referred to in sub-section (1)--
(a) to the extent necessary to perform his or her
official duties or to perform a function or
20 exercise a power under this Act; or
(b) in the case of information relating to the
personal affairs of another person, if that
other person has given written consent to the
making of the record or the divulging or
25 communicating of the information.
(3) Sub-section (1) does not prevent a person
producing a document or divulging information to
a court in the course of criminal proceedings or
proceedings under this Act.
30
63. Annual Report
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(1) As soon as practicable after the end of each
calendar year, the Panel must submit a report to
the Minister that includes the following
information--
5 (a) the number and type of leave applications--
(i) made to the Panel during that year; and
(ii) granted by the Panel during that year;
and
(iii) refused by the Panel during that year;
10 and
(b) the number of suspensions during that year
of leave granted by the Panel and the type of
leave suspended.
(2) The Minister must cause each report under sub-
15 section (1) to be laid before each House of the
Parliament within 14 sitting days of that House
after it is received by the Minister.
Division 3--Procedure of Panel
64. Procedure of the Panel
20 (1) The Panel--
(a) in hearing any matter, must act according to
equity and good conscience without regard
to technicalities or legal forms;
(b) is bound by the rules of natural justice;
25 (c) is not required to conduct any proceedings in
a formal manner.
(2) Schedule 2 has effect with respect to the
procedure of the Panel.
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65. Evidence
(1) The Panel is not bound by rules or practice as to
evidence but may inform itself in relation to any
matter in such manner as it thinks fit.
5 (2) Evidence before the Panel--
(a) may be given orally or in writing or partly
orally and partly in writing; and
(b) may be given on oath or by declaration.
(3) A member of the Panel may administer an oath or
10 take an affirmation or declaration for the purposes
of this Act.
(4) The Panel, on its own initiative or on the
application of an applicant for leave, may cause to
be served on any person a summons to appear
15 before the Panel to give evidence or produce
documents specified in the summons.
(5) The Panel may make an order for the manner of
service, including substituted service, of a
summons under sub-section (4).
20 (6) A person must not, without reasonable excuse, fail
to comply with a summons.
Penalty: 5 penalty units.
66. Reasons
(1) The Panel must give reasons for any
25 determination made in relation to a matter before
it.
(2) If the Panel gives oral reasons, the applicant may
request it to put them in writing.
(3) The Panel must comply with a request under sub-
30 section (2) within 14 days after the request is
made.
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(4) If the Panel rejects an application for leave, it
must inform the applicant in writing of the
applicant's right to request written reasons for the
rejection.
5 67. Appointment of people to assist the Panel
The Panel may appoint a legal practitioner, an
interpreter approved under section 25 of the
Mental Health Act 1986, a registered medical
practitioner or a registered psychologist to assist it
10 in any proceeding before it.
68. Notice of hearings
(1) The Panel must cause notice of a hearing to be
given to the applicant for leave.
(2) A notice of hearing must contain information with
15 respect to--
(a) the time and place of the hearing; and
(b) the procedure of the Panel; and
(c) the right for the applicant to be legally
represented.
20 (3) The notice required to be given to an applicant
under this section must be given personally to the
applicant in accordance with this section unless
the Panel determines otherwise.
(4) The contents of the notice must be explained by
25 the person giving it to the applicant to the
maximum extent possible to the applicant in the
language, mode of communication and terms
which the applicant is most likely to understand.
(5) An explanation given under sub-section (4) must,
30 if possible, be given both orally and in writing.
69. Hearing not invalidated due to lack of notice
A hearing or determination of the Panel is not
invalidated or affected by reason only of a failure
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to give notice to a person other than the applicant
for leave.
70. Appearance and representation at Panel hearings
(1) An applicant for leave is entitled to appear in
5 person before the Panel and may be represented
by a legal practitioner or any other person
authorised to that effect by the applicant.
(2) If an applicant decides not to appear, the Panel
must satisfy itself that the applicant has made the
10 decision of their own free will.
(3) At any hearing of the Panel--
(a) a person other than the applicant for leave
who is given notice of the hearing may
appear before the Panel in person and be
15 heard or, if the person is unable to be present
at the hearing and the Panel allows, may be
represented before the Panel by any person
authorised to that effect by the person; and
(b) any other person who wishes to be heard and
20 whom the Panel agrees to hear may appear
before the Panel in person and be heard.
(4) Unless the Panel makes an order under sub-
section (5), the applicant or a person representing
the applicant is entitled to inspect any documents
25 to be given to the Panel in connection with the
hearing at least 24 hours before the
commencement of the hearing.
(5) On an application made by or on behalf of the
authorised psychiatrist or Secretary to the
30 Department of Human Services, the Panel may
order that the applicant is not entitled to inspect
any document or part of a document personally, if
the Panel is satisfied that inspection would--
(a) cause serious harm to the applicant's health
35 or the health or safety of another person; or
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(b) involve the unreasonable disclosure of
information relating to the personal affairs of
any person; or
(c) breach a confidentiality provision imposed
5 by a person who supplied information that is
contained in the document.
(6) The Panel may permit a person representing the
applicant before the Panel to inspect a document,
or part of a document, to which an order made
10 under sub-section (5) applies.
71. Proceedings to be closed to public
(1) Unless sub-section (2) applies, proceedings before
the Panel are closed to members of the public.
(2) The Panel may direct that particular proceedings
15 or any part of them are to be open to the public if
the Panel is satisfied that it would be in the best
interests of the applicant for leave or in the public
interest.
(3) A direction under sub-section (3) may be given
20 subject to any conditions the Panel considers
appropriate.
72. Protection of members etc.
(1) A member or acting member of the Panel has, in
the exercise of powers or performance of
25 functions or duties as a member or acting member,
the same protection and immunity as a judge of
the Supreme Court.
(2) A legal practitioner or other person appearing
before the Panel on behalf of a party has the same
30 protection and immunity as a legal practitioner
has in appearing for a party in proceedings in the
Supreme Court.
(3) A person summoned to attend or appearing before
the Panel as a witness has the same protection and
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is, in addition to the penalties provided by this
Act, subject to the same liabilities, as a witness in
proceedings in the Supreme Court.
73. Offences
5 A person must not--
(a) insult a member of the Panel in or in relation
to the exercise of the powers or functions as
a member; or
(b) repeatedly interrupt the proceedings of the
10 Panel; or
(c) create a disturbance or take part in creating a
disturbance in or near a place where the
Panel is sitting; or
(d) do any other act or thing that would, if the
15 Panel were a court of record, constitute a
contempt of that court.
Penalty: 10 penalty units.
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PART 8--GENERAL
74. Service of notices of hearings to family members and
victims
A notice of a hearing required to be given to a
5 family member or victim under this Act must be
sent to the person by registered post.
75. Suppression orders
(1) In any proceeding before a court under this Act,
the court, if satisfied that it is in the public interest
10 to do so, may order--
(a) that any evidence given in the proceeding;
(b) that the content of any report or other
document put before the court in the
proceeding;
15 (c) that any information that might enable a
defendant or another person who has
appeared or given evidence in the proceeding
to be identified--
must not be published except in the manner and to
20 the extent (if any) specified in the order.
(2) An order under this section may be made on the
application of a party or on the court's own
initiative.
(3) A person must not publish or cause to be
25 published any material in contravention of an
order under this section.
Penalty: 500 penalty units in the case of a body
corporate;
120 penalty units or imprisonment for
30 1 year or both in any other case.
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76. Inadmissibility of evidence in other proceedings
(1) In this section--
"hearing" means--
(a) an investigation;
5 (b) a special hearing;
(c) a hearing referred to in section 36(1);
(d) a hearing of the Panel under Part 7.
(2) Evidence of anything said on a hearing, or of any
document prepared solely for the purpose of a
10 hearing, is not admissible in any civil or criminal
proceeding except--
(a) a proceeding arising out of the hearing; or
(b) a proceeding for an offence against section
314(1) of the Crimes Act 1958 (perjury) or
15 for any other offence that involves an
interference with the due administration of
justice; or
(c) with the consent of the person to whom the
words or document principally refers or
20 relates.
(3) A court, tribunal or person acting judicially may
rule as admissible in a proceeding before them
any matter inadmissible because of sub-section (2)
if satisfied, on the application of a party to the
25 proceeding, that it is in the interests of justice to
do so.
77. Delegation by Secretary to the Department of Human
Services
The Secretary to the Department of Human
30 Services, by instrument, may delegate to any
person employed or engaged in the administration
of the Intellectually Disabled Persons' Services
Act 1986 any power, duty or function of the
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Secretary under this Act other than this power of
delegation.
78. Abolition of Governor's pleasure orders
(1) A court does not have jurisdiction or power to
5 order that a person be kept in strict custody until
the Governor's pleasure is known.
(2) The Governor does not have authority to make an
order directing that a person be kept in strict
custody during the Governor's pleasure.
10 79. Supreme Court--limitation of jurisdiction
It is the intention of section 78(1) to alter or vary
section 85 of the Constitution Act 1975.
80. Regulations
The Governor in Council may make regulations
15 for or with respect to any matter or thing
authorised or required to be prescribed or
necessary to be prescribed for carrying this Act
into effect.
_______________
20
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PART 9--AMENDMENT OF OTHER ACTS
No. 117/1986. 81. Amendment of Corrections Act 1986
Reprint No. 3
In the Corrections Act 1986--
as at 1 June
1997.
(a) in section 3, in the definition of "correctional
5 order", for paragraph (f) substitute--
"(f) A supervision order under the Crimes
(Mental Impairment and Unfitness
to be Tried) Act 1997 that includes a
condition with respect to supervision
10 of the person subject to the order by a
community corrections officer;";
(b) in section 9AA(1)(b)(iii) before "security
patients" insert "forensic patients,";
(c) sections 72(3) and (6) and 79 are repealed.
No. 6231.
15 82. Amendment of Crimes Act 1958
Reprint No. 13
(1) In section 361(4)(c) of the Crimes Act 1958--
as at 5 June
1997. Further
amended by (a) after "Children and Young Persons Act
Nos 44/1997
1989" insert "or in a residential institution
and 48/1997.
within the meaning of the Intellectually
20 Disabled Persons' Services Act 1986";
(b) in sub-paragraph (i) for "or youth training
centre" substitute ", youth training centre or
residential institution".
(2) In the Crimes Act 1958--
25 (a) section 393 is repealed;
(b) in the heading to Subdivision (19) of
Division 1 of Part III omit "Insanity.";
(c) section 420 and Subdivision (4) of Division
2 of Part III are repealed.
30 (3) For section 569(4) of the Crimes Act 1958
substitute--
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"(4) If it appears to the Court of Appeal that the
defence of mental impairment (within the
meaning of section 20(1) of the Crimes
(Mental Impairment and Unfitness to be
5 Tried) Act 1997) is established in relation to
an appellant who was found guilty of an
offence, the Court may quash the sentence
passed at the trial and make an order or
declaration under section 23 of that Act as if
10 the appellant had been found not guilty
because of mental impairment at the trial.".
(4) In the Crimes Act 1958--
(a) in section 570A--
(i) in sub-section (1) for "on the ground of
15 insanity" substitute "because of mental
impairment";
(ii) in sub-section (4) for "insanity"
(wherever occurring) substitute
"mental impairment";
20 (b) in section 570B(1)--
(i) for "on the ground of insanity"
substitute "because of mental
impairment";
(ii) in paragraph (a) for "insanity"
25 substitute "mental impairment";
(c) in section 570C(1)--
(i) omit "under disability rendering him";
(ii) for "under such disability" substitute
"unfit";
30 (iii) for "on the ground of insanity"
substitute "because of mental
impairment";
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(iv) for "disability" (where last occurring)
substitute "unfitness";
(d) in section 570D for "on the ground of
insanity" substitute "because of mental
5 impairment";
(e) in section 585 after "Police and
Corrections (Amendment) Act 1997"
insert "and the Crimes (Mental
Impairment and Unfitness to be Tried)
10 Act 1997".
No. 53/1986. 83. Amendment of Intellectually Disabled Persons'
Reprint No. 3
Services Act 1986
as at 5 June
1997.
(1) In section 3 of the Intellectually Disabled
Persons' Services Act 1986--
15 (a) after the definition of "executive officer"
insert--
' "forensic resident" means--
(a) a person--
(i) remanded in custody in a
20 residential service; or
(ii) committed to custody in a
residential service by a
supervision order--
under the Crimes (Mental
25 Impairment and Unfitness to be
Tried) Act 1997; or
(b) a person transferred from a prison to
a residential service under section
21A;';
30 (b) after the definition of "residential program"
insert--
' "residential service" means--
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(a) a registered residential service, a
residential institution or a
residential program; or
(b) a residential service provided
5 under this Act by a contracted
service provider;';
(c) in the definition of "security resident"--
(i) in paragraph (a) omit "or";
(ii) paragraph (b) is repealed.
10 (2) After section 21(1) of the Intellectually Disabled
Persons' Services Act 1986 insert--
"(1A) Sub-section (1) does not apply to a person
who is detained in a prison under the Crimes
(Mental Impairment and Unfitness to be
15 Tried) Act 1997 (whether on remand or
under a supervision order made under that
Act).".
84. New section 21A inserted
After section 21 of the Intellectually Disabled
20 Persons' Services Act 1986 insert--
"21A. Transfer of persons detained in prison
under Crimes (Mental Impairment and
Unfitness to be Tried) Act 1997
(1) The Secretary to the Department of Justice
25 may, by order, transfer a person who--
(a) is detained in a prison under the
Crimes (Mental Impairment and
Unfitness to
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be Tried) Act 1997 (whether on
remand or under a supervision order
made under that Act); and
(b) is an eligible person--
5 to an appropriate residential service as a
forensic resident.
(2) The Secretary to the Department of Justice
must not transfer a person under sub-section
(1) unless--
10 (a) the Secretary to the Department of
Justice has received a declaration of
eligibility and an individual program
plan from the Secretary to the
Department of Human Services; and
15 (b) the Secretary to the Department of
Justice is satisfied as to the matters
specified in sub-section (7); and
(c) the Secretary to the Department of
Human Services has agreed to accept
20 the person as a forensic resident in the
residential service specified in the
transfer order.
(3) The Secretary to the Department of Justice
may make an interim order to enable the
25 Secretary to the Department of Human
Services to assess the eligibility of the
person specified in the order.
(4) A person in respect of whom an interim
order is made may be conveyed to and
30 detained in an appropriate residential service
for the period, not exceeding 28 days,
specified in the order.
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(5) On the application of the Secretary to the
Department of Human Services, the
Secretary to the Department of Justice may
extend the duration of an interim order for a
5 further period not exceeding 28 days.
(6) If the Secretary to the Department of Human
Services issues a declaration of eligibility in
respect of a person under this section, the
Secretary must prepare an individual
10 program plan in respect of that person.
(7) The Secretary to the Department of Justice
must be satisfied that the making of a
transfer order is in the best interests of the
eligible person or the community having
15 regard to--
(a) whether any physical, mental or
emotional risk to which the eligible
person has been or may be exposed if
detained in a prison is significantly
20 greater than the risk to which people
who are not intellectually disabled may
be exposed; and
(b) whether the eligible person would be
more appropriately placed with a
25 residential service instead of a prison;
and
(c) any other matters the Secretary to the
Department of Justice considers
relevant.
30 (8) If a person who is on remand is transferred
to a residential service under this section, the
Secretary to the Department of Justice must
notify the Director of Public Prosecutions of
the transfer.".
35
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85. New Division 2A of Part 5 inserted
After section 43 of the Intellectually Disabled
Persons' Services Act 1986 insert--
"Division 2A--Provisions Applicable to
5 Forensic Residents
43A. Status of forensic residents
A forensic resident is to be provided with
services under this Act.
43B. Security conditions
10 (1) A forensic resident detained in a residential
service or absent from a residential service
on leave is subject to such security
conditions as the Secretary considers
necessary.
15 (2) A forensic resident may be transported to
and from such places as may be necessary
for the administration of this Act in
accordance with those security conditions.
43C. Transfer of forensic resident to another
20 residential service
(1) The Secretary may by order direct the
transfer of a forensic resident to another
residential service if the Secretary is satisfied
that the transfer will enable that person's
25 individual program plan to be more
effectively implemented.
(2) Where a forensic resident is transferred to
another residential service any documents
relevant to the detention and care of the
30 forensic resident must be forwarded at the
same time to that residential service.
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43D. Leave of absence for forensic resident
A forensic resident who is subject to a
supervision order under the Crimes (Mental
Impairment and Unfitness to be Tried)
5 Act 1997 may apply for and be granted leave
of absence in accordance with Part 7 of that
Act.
43E. Apprehension of forensic resident absent
without leave
10 A forensic resident who is absent from a
residential service without leave of absence
may be apprehended at any time by--
(a) a member of the police force; or
(b) the person in charge of the residential
15 service or any person authorised by the
person in charge of the residential
service--
for the purpose of being returned to the
residential service.".
No. 59/1986.
20 86. Amendment of Mental Health Act 1986
Reprint No. 4
(1) In section 3 of the Mental Health Act 1986-- as at 19 June
1997.
(a) after the definition of "executive officer"
insert--
' "forensic patient" means--
25 (a) a person--
(i) remanded in custody in an
approved mental health
service; or
(ii) committed to custody in an
30 approved mental health
service by a supervision
order--
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under the Crimes (Mental
Impairment and Unfitness to be
Tried) Act 1997; or
(b) a person transferred from a prison
5 to an approved mental health
service under section 17;';
(b) after the definition of "mental illness"
insert--
' "Panel" means Forensic Leave Panel
10 established under section 59 of the
Crimes (Mental Impairment and
Unfitness to be Tried) Act 1997;';
(c) in the definition of "patient" before
paragraph (b) insert--
15 "(a) a forensic patient; or";
(d) in the definition of "security patient"--
(i) in paragraph (a) omit "or" where
secondly occurring;
(ii) paragraph (b) is repealed.
20 (2) In section 5(c) of the Mental Health Act 1986
after "security patients" insert "and forensic
patients".
(3) After section 16(1) of the Mental Health Act
1986 insert--
25 "(1A) Sub-section (1) does not apply to a person
who is detained in a prison under the Crimes
(Mental Impairment and Unfitness to be
Tried) Act 1997 (whether on remand or
under a supervision order made under that
30 Act).".
(4) In section 30(1) of the Mental Health Act 1986
after "patient" (where first occurring) insert
", other than a forensic patient".
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87. New Division 4 of Part 3 inserted
After section 16 of the Mental Health Act 1986
insert--
"Division 4--Forensic Patients
5 17. Transfer of persons detained in prison
under Crimes (Mental Impairment and
Unfitness to be Tried) Act 1997
(1) The Secretary to the Department of Justice
may by order transfer a person who--
10 (a) is detained in a prison under the
Crimes (Mental Impairment and
Unfitness to be Tried) Act 1997
(whether on remand or under a
supervision order made under that Act);
15 and
(b) appears to be mentally ill--
to an approved mental health service as a
forensic patient.
(2) The Secretary to the Department of Justice
20 cannot transfer a person under sub-section
(1) unless--
(a) the Secretary to the Department of
Justice has received a certificate by a
psychiatrist and is satisfied that--
25 (i) the person appears to be mentally
ill and to require treatment for that
illness; and
(ii) the treatment can be obtained by
admission to and detention in an
30 approved mental health service;
and
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(iii) because of that person's mental
illness, the person should be
admitted and detained for
treatment for his or her health or
5 safety (whether to prevent a
deterioration in the person's
physical or mental condition or
otherwise) or for the protection of
members of the public; and
10 (b) the Secretary to the Department of
Justice has received a report from the
authorised psychiatrist of the approved
mental health service to which it is
proposed to admit the person which
15 recommends that the transfer be made.
(3) In determining whether to transfer a person
under sub-section (1), the Secretary to the
Department of Justice must have regard to
the public interest and all the circumstances
20 of the case including the person's psychiatric
history.
17A. Status of forensic patients
(1) Upon admission to an approved mental
health service (whether under section 17 or
25 otherwise), a forensic patient is to be
detained and treated for his or her condition.
(2) If a forensic patient refuses to consent to
necessary treatment or is not capable of
consenting to treatment for his or her mental
30 disorder, consent in writing may be given by
the authorised psychiatrist.
17B. Security conditions
(1) A forensic patient detained in an approved
mental health service or absent on leave
35 from an approved mental health service is
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subject to such security conditions as the
authorised psychiatrist considers necessary.
(2) A forensic patient may be transported to and
from such places as may be necessary for the
5 administration of this Act in accordance with
those security conditions.".
88. New Division 5 of Part 4 inserted
After section 53A of the Mental Health Act 1986
insert--
10 "Division 5--Forensic Patients
53AB. Transfer of forensic patient to another
approved mental health service
(1) The chief psychiatrist may by order direct
the transfer of a forensic patient to another
15 approved mental health service if the chief
psychiatrist is satisfied that the transfer will
be of benefit to the patient or is necessary for
the patient's treatment.
(2) Where a forensic patient is transferred to
20 another approved mental health service any
documents relevant to the detention and
future treatment of the patient must be
forwarded at the same time to that approved
mental health service.
25 (3) A forensic patient subject to a transfer order
under sub-section (1) may appeal to the
Panel against the transfer.
(4) On an appeal under sub-section (3), the
Panel must consider whether the transfer--
30 (a) will be of benefit to the patient; or
(b) is necessary for the patient's treatment.
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(5) On an appeal under sub-section (3), the
Panel may--
(a) confirm the decision of the chief
psychiatrist to transfer the patient; or
5 (b) direct that the patient--
(i) continue to be detained in the
same approved mental health
service; or
(ii) if the patient has already been
10 transferred, be returned to the
approved mental health service
from which the patient was
transferred.
(6) Division 3 of Part 7 of, and Schedule 2 to,
15 the Crimes (Mental Impairment and
Unfitness to be Tried) Act 1997 apply to an
appeal under sub-section (3) as if references
in that Division and Schedule to the
applicant for leave were references to the
20 forensic patient subject to the transfer order.
53AC. Leave of absence for forensic patient
A forensic patient who is subject to a
supervision order under the Crimes (Mental
Impairment and Unfitness to be Tried)
25 Act 1997 may apply for and be granted leave
of absence in accordance with Part 7 of that
Act.
53AD. Apprehension of forensic patient absent
without leave
30 (1) A forensic patient who is absent from an
approved mental health service without leave
of absence may be apprehended at any time
by--
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(a) a prescribed person within the meaning
of section 9; or
(b) the authorised psychiatrist or any
person authorised by the authorised
5 psychiatrist; or
(c) an officer or employee of the
Department authorised by the chief
psychiatrist--
for the purpose of being returned to the
10 approved mental health service.
(2) Sub-sections (5), (6) and (7) of section 9
apply to a person being returned to an
approved mental health service under this
section as if that person were a person to
15 whom a recommendation relates being taken
to an appropriate approved mental health
service.".
_______________
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PART 10--SAVINGS AND TRANSITIONAL PROVISIONS
89. Savings and transitional provisions
Schedule 3 has effect.
__________________
5
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SCHEDULES
SCHEDULE 1
Section 59(3)
PROVISIONS WITH RESPECT TO MEMBERS OF THE
5 PANEL
1. Judicial members
(1) The judicial members--
(a) are to be appointed by the Governor in Council; and
(b) hold office for a period of 5 years; and
10 (c) are eligible for re-appointment at the end of the term
of office; and
(d) are not in respect of the office of member subject to
the provisions of the Public Sector Management Act
1992.
15 (2) The appointment of a judge to the Panel does not affect his
or her tenure of office as a judge or rank, title, status,
precedence, salary, annual or other allowances or other
rights or privileges as the holder of an office as a judge and,
for all purposes, service as a member of the Panel is to be
20 taken to be service as the holder of an office as a judge.
(3) For the purposes of sections 80A(5A)(a) and 83(4) of the
Constitution Act 1975 and sections 13A(5A)(a) and (5C)
of the County Court Act 1958, the office of judicial
member is not to be taken to be a judicial office or an office
25 or place of profit under the Crown.
2. Other members
(1) Each member of the Panel (other than the judicial members
and the chief psychiatrist or his or her nominee)--
(a) is to be appointed by the Governor in Council on the
30 nomination of the Minister; and
(b) holds office for the term specified in his or her
instrument of appointment, which must be no longer
than 4 years; and
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(c) is eligible for re-appointment at the end of the term of
office; and
(d) is entitled to be paid--
(i) the remuneration that is fixed from time to time
5 by the Governor in Council; and
(ii) the travelling and other expenses that are fixed
by the Governor in Council; and
(e) is not in respect of the office of member subject to the
provisions of the Public Sector Management Act
10 1992.
(2) In nominating people for appointment to the Panel, the
Minister must have regard to--
(a) the matters that the Panel has jurisdiction to hear and
determine; and
15 (b) the need for the Panel to be comprised of both males
and females so qualified by knowledge and
experience that the Panel is capable of exercising the
jurisdiction and performing the functions conferred
on it.
20 (3) In the case of the first appointment of members of the
Panel--
(a) as nearly as possible to half the number of members
appointed are to hold office for a term of 2 years from
their respective appointments; and
25 (b) the remainder of members first appointed are to hold
office for a term of 4 years from their respective
appointments.
3. Acting members
(1) If a member is unable, whether on account of illness or
30 otherwise, to perform the duties of office, the Governor in
Council may appoint an eligible person to act as that
member during the period of inability.
(2) If an acting member has been appointed and the member for
whom he or she is acting ceases to hold office without
35 having resumed the performance of the duties of office, the
appointment of the acting member continues until--
(a) it is terminated by the Governor in Council; or
(b) 12 months after the member ceases to hold office--
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whichever occurs first.
(3) An acting member--
(a) has all the powers and may perform all the duties of
the member for whom they are acting; and
5 (b) except in the case of an acting judicial member, is
entitled to be paid--
(i) the remuneration that is fixed from time to time
by the Governor in Council; and
(ii) the travelling and other expenses that are fixed
10 by the Governor in Council.
(4) If the appointment of an acting member expires (whether
because of effluxion of time, the resumption of duty by the
member for whom they are acting or the filling of the
relevant vacancy) at a time when the acting member is
15 engaged in a hearing of a matter by the Panel, the acting
member's appointment continues until the matter has been
finally determined by the Panel.
4. Judicial members
A judicial member ceases to hold office on ceasing to hold
20 the office of judge.
5. General provisions as to members
(1) The Governor in Council may specify terms and conditions
of appointment in the instrument of appointment of a
member.
25 (2) The Governor in Council, on the recommendation of the
Minister after consultation with the judicial members, may
remove or suspend any member (other than the judicial
members or the chief psychiatrist or his or her nominee)
from office.
30 (3) A member may resign from the office of member by writing
signed by the member and delivered to the Governor in
Council.
(4) If any member (other than the judicial members or the chief
psychiatrist or his or her nominee)--
35 (a) becomes bankrupt; or
(b) is convicted of an indictable offence or an offence
that, if committed in Victoria, would be an indictable
offence; or
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(c) becomes incapable of performing the duties of a
member--
the office held by that member becomes vacant.
(5) If the appointment of any member expires at a time when
5 that member is engaged in the hearing of a matter by the
Panel, the appointment continues until the matter has been
finally determined by the Panel.
__________________
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SCHEDULE 2
Section 64(2)
PROVISIONS WITH RESPECT TO THE PROCEDURE OF
THE PANEL
5 1. Constitution of Panel for hearings
(1) For the purposes of a hearing, the Panel is to be constituted
by--
(a) a judicial member, being--
(i) a Supreme Court judge in the case of an
10 applicant for leave whose supervision order
was made by the Supreme Court; or
(ii) a County Court judge in the case of an
applicant for leave whose supervision order
was made by the County Court--
15 who is to be chairperson of the Panel for that hearing;
and
(b) a member appointed to the Panel to represent the
views and opinions of members of the community;
and
20 (c) if the applicant for leave is a forensic patient--
(i) the chief psychiatrist or his or her nominee; and
(ii) a member of the Panel who is a registered
medical practitioner with experience in forensic
psychiatry; and
25 (d) if the applicant for leave is a forensic resident, a
member of the Panel who is a registered psychologist
with experience in the field of intellectual disabilities
and with forensic experience.
(2) The member of the Panel referred to in sub-clause (1)(c) or
30 (d) must not be a person who is primarily responsible for the
treatment or care of the applicant for leave.
(3) The members to constitute the Panel for a hearing are to be
selected by the President.
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2. Procedure of the Panel
(1) Unless clause 3 applies, a matter arising for determination
by the Panel in a hearing is to be determined by the opinions
of a majority of the members constituting the Panel for the
5 purposes of that hearing, but if the Panel is evenly divided,
the matter is to be determined by the opinion of the
chairperson.
(2) An act or decision of the Panel is not invalidated only
because--
10 (a) of a defect or irregularity--
(i) in the appointment of a member; or
(ii) in the selection of a member for a particular
hearing; or
(b) in the case of an acting member, the occasion for
15 acting had not arisen or had ceased.
(3) Subject to this Act, the procedure of the Panel is in its
discretion.
3. Determination of questions of law
(1) A question of law that arises in proceedings before the Panel
20 is to be decided by the chairperson.
(2) The Panel, of its own motion or at the request of a party,
may refer a question of law arising in a proceeding before it
to the Court of Appeal for decision.
(3) A question of law may be referred under sub-clause (2) only
25 if the chairperson of the Panel agrees to the referral.
(4) If a question of law is referred under sub-clause (2), the
Panel must not, in the proceeding--
(a) give a decision to which the question is relevant while
the referral is pending; or
30 (b) proceed in a manner or make a decision that is
inconsistent with the opinion of the Court of Appeal.
4. Directions as to arrangement of business and procedure
The President, after consultation with the other members of
the Panel, may give directions as to--
35 (a) the arrangement of the business of the Panel; and
(b) the procedure of the Panel.
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5. Sittings of the Panel
(1) The Panel is to sit--
(a) at such times as the President determines; and
(b) at the place where the applicant for leave is detained,
5 unless the President determines otherwise.
(2) The President may determine that there is to be a special
sitting of the Panel in the case of an emergency.
6. Powers of Panel
The Panel has power to--
10 (a) order that any person who in the opinion of the Panel
ought to be a party in any proceedings be added as a
party or substituted for a party; and
(b) order that any person who in the opinion of the Panel
is not a proper or a necessary party in any
15 proceedings cease to be a party; and
(c) adjourn the hearing of any proceedings--
(i) to any time and place; and
(ii) for any purpose; and
(iii) on any terms as to costs or otherwise--
20 as the Panel considers necessary or just in the
circumstances; and
(d) reserve its decision in any proceedings to a date to be
advised by the Panel; and
(e) make an order that operates at a date after the making
25 of the order as is specified in the order.
7. Reasons to be signed
(1) Written reasons for determinations of the Panel (if requested
under section 66) must be signed by the members
constituting the Panel that made the determination.
30 (2) If one or more members of the Panel are unavailable for the
purpose of signing the reasons, it is sufficient if one of the
members signs the reasons.
(3) The production in any proceedings of a document
purporting to be a copy of reasons for a determination made
35 by the Panel and purporting to be signed by a member or
members of the Panel is conclusive evidence of the reasons
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for the determination and of the due making and existence
of the determination.
8. Power to amend determination
(1) The Panel may at any time make a determination correcting
5 a determination made by it if there is in the determination--
(a) a clerical mistake or an error arising from any
accidental slip or omission; or
(b) any evident material miscalculation of figures or an
evident material mistake in the description of any
10 person, thing or property referred to in the
determination.
(2) A determination under sub-clause (1) may be made on the
application of any person or on the Panel's own initiative.
__________________
15
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SCHEDULE 3
Section 89
SAVINGS AND TRANSITIONAL PROVISIONS
1. Definitions
5 In this Schedule--
"commencement day" means the day on which this
Schedule comes into operation;
"existing detainee" means a person who, immediately
before the commencement day, was subject to an
10 order under section 393 or 420 of the Crimes Act
1958 (whether by the court or by the Governor).
2. Existing detainees
(1) Each existing detainee is, on and after the commencement
day, deemed to be subject to a custodial supervision order
15 under this Act.
(2) The nominal term of the custodial supervision order is to be
determined in accordance with section 28 as if the
maximum penalty for the offence which led to the person
becoming an existing detainee were the maximum penalty
20 attaching to that offence on the commencement day.
(3) If the offence referred to in sub-section (2) no longer
exists--
(a) the Supreme Court, on application by the existing
detainee or the Director of Public Prosecutions, must
25 determine whether there is an existing offence, as at
the commencement day, with which the existing
detainee could have been charged had it existed at the
time of the original charge; and
(b) if there is such an offence, the nominal term is to be
30 determined by reference to the maximum penalty for
that offence as at the commencement day.
(4) The nominal term runs from the day on which the existing
detainee was made subject to the order under section 393 or
420 of the Crimes Act 1958.
35 (5) If the nominal term has expired, a major review must be
held within 3 months after the commencement day.
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3. Leave
(1) Subject to this clause, an existing detainee who,
immediately before the commencement day, was on leave
from the place of detention that corresponds to leave that
5 may be granted under Part 7 is deemed to be on the
corresponding leave as if granted under that Part, and any
conditions to which the leave was subject immediately
before the commencement day continue to apply.
(2) Sub-clause (1) applies for the period of 6 months
10 commencing on, and including, the commencement day.
(3) For the purposes of this clause, leave granted before the
commencement day corresponds to leave that may be
granted under Part 7 if it is substantially similar to that
leave.
15 4. Revocation of supervision order
(1) Despite anything to the contrary in Part 5, an existing
detainee who has been, or is deemed to have been, on
extended leave for a period of at least 12 months may apply
to the court that made the original order under which he or
20 she was detained for revocation of his or her supervision
order.
(2) On an application under sub-clause (1) the court may revoke
the supervision order if satisfied on the evidence available
that the safety of the existing detainee or members of the
25 public will not be seriously endangered as a result of the
revocation of the order.
(3) In considering an application for revocation of a supervision
order in respect of an existing detainee the court may take
into account any reports on the existing detainee made by,
30 or submitted to, the Adult Parole Board before the
commencement day.
5. Persons released under section 498 of Crimes Act 1958
Despite the repeal of section 498 of the Crimes Act 1958,
any conditions imposed on a person under that section that
35 were in force immediately before the commencement day
continue to apply on and after the commencement day.
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6. Unfitness to stand trial
(1) Part 2 applies with respect to an offence that is alleged to
have been committed, whether before, on or after the
commencement day.
5 (2) If a person has been found unfit to stand trial but no order
has been made in respect of the person before the
commencement day, the court must proceed to hold a
special hearing under Part 3 in respect of the person.
7. Mental impairment and insanity
10 (1) Despite section 25, the defence of insanity continues to
apply with respect to any offence alleged to have been
committed before the commencement day.
(2) If a jury returns a verdict of not guilty on account of insanity
in relation to a person charged with an offence alleged to
15 have been committed before the commencement day, that
verdict is to be taken for all purposes to be a finding of not
guilty because of mental impairment under Part 4.
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NOTES
1
Section 23 provides similarly to this sub-section in relation to a finding of
not guilty because of mental impairment under section 17(1)(b).
2
Section 40(2) applies to an order under this section.
3
Section 40(2) applies to an order under this section.
4
Part 6 applies to a supervision order.
5
Sections 567(d) and 567A of the Crimes Act 1958 provide for appeals
against sentences.
6
Section 4 of the Corrections Act 1986 deems a person in custody in a
prison to be in the custody of the Secretary to the Department of Justice.
7
Section 33 provides for the court's power on review.
8
Section 26(5) provides that a supervision order is subject to appeal in the
same manner as a sentence and section 26(6) gives a right of appeal to the
Secretary to the Department of Human Services.
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Crimes (Mental Impairment and Unfitness to be Tried) Act 1997
Act No.
Guide to Court Processes
Is accused
committed by Unconditional
No
Magistrates' Release
Court for trial ?
Yes
Question of County or Supreme Court
Yes
unfitness holds investigation into fitness
raised - specially empanelled jury
No
Accused
Trial in County or
Yes found to be
Supreme Court
fit?
No
Question of
unfitness Yes
raised
Does judge decide
accused likely to
Adjourn for up to 12
Yes
No become fit within 12
months
months?
Either
No
Yes Judge decides Court holds special
No
accused is fit hearing
Accused not Not guilty on grounds
Accused guilty
guilty of mental impairment Either
Unconditional Not guilty on grounds Committed offence - Accused not
Either
Release of mental impairment qualified finding of guilt guilty
Unconditional
Either
Release
Supervision order
(Custodial or
Non-Custodial)
By Authority. Government Printer for the State of Victoria.
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531034B.I1-12/9/97
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