2004

THE LEGISLATIVE ASSEMBLY

FOR THE AUSTRALIAN CAPITAL TERRITORY

(As presented)

(Attorney-General)

2004

THE LEGISLATIVE ASSEMBLY

FOR THE AUSTRALIAN CAPITAL TERRITORY

(As presented)

(Attorney-General)

An Act to amend the Crimes Act 1900, and for other purposes

The Legislative Assembly for the Australian Capital Territory enacts as follows:

This Act is the Crimes Amendment Act 2004 (No 2).

This Act commences on the day after its notification day.

Note The naming and commencement provisions automatically commence on the notification day (see Legislation Act, s 75 (1)).

This part amends the Crimes Act 1900.

insert

alternative offence, for an offence, means an offence available as an alternative to the offence.

conduct—see the Criminal Code, section 13.

engage in conduct—see the Criminal Code, section 13.

committed the acts that constitute the offence

engaged in the conduct required for the offence charged (or an alternative offence)

committed the acts that constitute the offence charged

engaged in the conduct required for the offence charged (or an alternative offence, if not satisfied in relation to the offence charged)

committed the acts that constitute the offence charged

engaged in the conduct required for the offence charged (or an alternative offence, if not not satisfied in relation to the offence charged)

(4) If, at a special hearing, the jury (or, if the special hearing is by a single judge without a jury, the judge) is satisfied beyond reasonable doubt that the accused engaged in the conduct required for the offence charged (or an alternative offence, if not satisfied in relation to the offence charged), the finding—

(a) is not a basis in law for recording a conviction for the offence charged (or an alternative offence); and

(b) except as provided in section 319A (Action if accused becomes fit to plead after special hearing), bars further prosecution of the accused for any offence in relation to the conduct.

committed the acts that constitute the offence charged

engaged in the conduct required for the offence charged (or an alternative offence, if not satisfied in relation to the offence charged)

committed the acts which constitute the offence charged

engaged in the conduct required for the offence charged (or an alternative offence, if not satisfied in relation to the offence charged)

(1) This section applies if—

(a) the Supreme Court makes an order under section 318 or section 319 in relation to an accused; and

(b) the offence in relation to which the order is made is punishable by imprisonment for 5 years or longer; and

(c) the tribunal later decides the accused is fit to plead in relation to the offence.

Note For the relevant review of fitness to plead provisions, see the Mental Health (Treatment and Care) Act 1994, s 69A.

(2) The director of public prosecutions must consider whether to take further proceedings against the accused in relation to the offence.

(3) If further proceedings are taken and the accused is found guilty of the offence charged (or an alternative offence), the court must, in deciding the sentence for the offence, take into account any time the accused has spent in custody or detention in relation to the offence.

committed the acts that constitute the offence

engaged in the conduct required for the offence charged

committed the acts which constitute the offence

engaged in the conduct required for the offence charged

(7) If the Magistrates Court is satisfied beyond reasonable doubt that the accused engaged in the conduct required for the offence charged, the finding—

(a) is not a basis in law for recording a conviction for the offence charged; and

(b) except as provided in section 335A, bars further prosecution of the accused for any offence in relation to the conduct.

(1) This section applies if—

(a) the Magistrates Court makes an order under section 335 (2), (3) or (4) in relation to an accused; and

(b) the offence in relation to which the order is made is punishable by imprisonment for 5 years or longer; and

(c) the tribunal later decides the accused is fit to plead in relation to the offence.

Note For the relevant review of fitness to plead provisions, see the Mental Health (Treatment and Care) Act 1994, s 69A.

(2) The director of public prosecutions must consider whether to take further proceedings against the accused in relation to the offence.

(3) If further proceedings are taken and the accused is found guilty of the offence charged, the court must, in deciding the sentence for the offence, take into account any time the accused has spent in custody or detention in relation to the offence.

The amendments of this part made by the Crimes Amendment Act 2004 (No 2) apply in relation to a hearing that takes place after the commencement of this section, regardless of when the person accused was found unfit to plead.

(1) This division expires 3 months after the day it commences.

(2) This division is declared to be a law to which the Legislation Act, section 88 (Repeal does not end effect of transitional laws etc) applies.

This part amends the Mental Health (Treatment and Care) Act 1994.

(1) This section applies if the tribunal makes a determination (the initial determination) under section 68 that a person is unfit to plead to a charge but is likely to become fit to plead to the charge within 12 months after the initial determination is made (the 12-month period).

(2) The tribunal may (on application or on its own initiative) review the person’s fitness to plead at any time before the end of the 12-month period.

(3) However, if the tribunal has not reviewed the person’s fitness to plead within 6 months after the initial determination was made, the tribunal must review it as soon as practicable (but within 30 days) after that time.

(4) If, before the end of the 12-month period, the person has not been found fit to plead, the tribunal must review the person’s fitness to plead as soon as practicable (but within 3 months) after the end of the period.

(5) On a review, the tribunal must determine on the balance of probabilities, and in accordance with section 68 (3) and (4), whether the person is unfit to plead.

(6) The tribunal must tell the relevant court of each determination the tribunal makes about a person and may make recommendations to the court about how the person should be dealt with.

(7) In this section:

relevant court—see section 68 (1).

(1) This section applies if—

(a) the tribunal makes a determination under section 68 or section 69 that a person is unfit to plead to a charge; and

(b) the charge is for an offence punishable by imprisonment for 5 years or longer; and

(c) an order is made in relation to the charge under any of the following provisions of the Crimes Act 1900:

• section 318 (2) (Non-acquittal at special hearing—non-serious offence);

• section 319 (2) (Non-acquittal at special hearing—serious offence);

• section 335 (2), (3) or (4) (Fitness to plead—Magistrates Court).

(2) The tribunal may (on application or on its own initiative) review the person’s fitness to plead at any time.

(3) However, the tribunal must review the person’s fitness to plead—

(a) as soon as practicable (but within 3 months) after the end of 12 months after the order is made; and

(b) at least once every 12 months after each review.

(4) Subsection (3) does not apply if—

(a) the person has already been found fit to plead; or

(b) the director of public prosecutions has told the tribunal, in writing, of the director’s intention not to take further proceedings against the person in relation to the offence.

(5) On a review, the tribunal must determine on the balance of probabilities, and in accordance with section 68 (3) and (4), whether the person is unfit to plead.

(6) To remove any doubt, this section applies even if the person is no longer in custody or under a mental health order.

Note A person the subject of a proceeding may be summoned to appear at the proceeding (see s 90).

(7) This section applies whether the determination mentioned in subsection (1) (a) was made before or is made after the commencement of this section.

(8) Subsection (7) is declared to be a law to which the Legislation Act, section 88 (Repeal does not end effect of transitional laws etc) applies.

(9) Subsections (7) and (8) and this subsection expire 3 months after the day this section commences.

69

, 69A

Presentation speech made in the Legislative Assembly on 2004.

Notified under the Legislation Act on 2004.

For the latest republication of amended laws, see www.legislation.act.gov.au.