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 4).

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 Community Advocate Act 1991.

(b) found by a court or the mental health tribunal to be unfit to plead; or

This part amends the Crimes Act 1900.

section 315

section 316

This division applies to a criminal proceeding in the Supreme Court or the Magistrates Court.

(1) A person is unfit to plead to a charge if the person’s mental processes are disordered or impaired to the extent that the person cannot—

(a) understand the nature of the charge; or

(b) enter a plea to the charge and exercise the right to challenge jurors or the jury; or

(c) understand that the proceeding is an inquiry about whether the person committed the offence; or

(d) follow the course of the proceeding; or

(e) understand the substantial effect of any evidence that may be given in support of the prosecution; or

(f) give instructions to the person’s lawyer.

(2) A person is not unfit to plead only because the person is suffering from memory loss.

(1) A person is presumed to be fit to plead.

(2) The presumption is rebutted only if it is established, on an investigation under this division, that the person is unfit to plead.

(3) The question of a person’s fitness to plead—

(a) is a question of fact; and

(b) is to be decided on the balance of probabilities.

(4) No party bears a burden of proof in relation to the question.

The question of a defendant’s fitness to plead to a charge may be raised by a party to a proceeding in relation to the charge or by the court.

(1) If the question is raised in the Magistrates Court (other than at a committal hearing) and the court is satisfied that there is a real and substantial question about the defendant’s fitness to plead, the court must reserve the question for investigation under this division.

(2) If the question is raised at a committal hearing—

(a) the committal hearing must be completed; and

(b) the defendant must not be discharged only because the question has been raised; and

(c) if the person is committed for trial—the question must be reserved for consideration by the Supreme Court.

(3) If the question has been reserved under subsection (2) (c) or is otherwise raised in the Supreme Court and the court is satisfied that there is a real and substantial question about the defendant’s fitness to plead, the court must reserve the question for investigation under this division.

(1) If a court reserves the question for investigation, the court must adjourn the hearing or trial in which the question was raised and proceed with an investigation under this division.

(2) The court may make 1 or more of the following orders:

(a) an order granting bail;

(b) an order remanding the defendant in custody in an appropriate place for a stated period;

(c) an order requiring the defendant to be examined by a psychiatrist or other health professional;

(d) if the question arose in a trial for which a jury had been empanelled—an order discharging the jury;

(e) any other order the court considers appropriate.

(3) The court must not make an order under subsection (2) (b) remanding the defendant in custody at a place other than a prison or remand centre unless satisfied that the facilities or services necessary for the order are available at the place.

(4) If the court considers that, because of the trivial nature of the charge or the nature of the defendant’s disability, it would be inappropriate to inflict any punishment on the defendant in relation to the offence, the court may decide not to carry out or continue the investigation and may dismiss the charge and order that the person be released.

(1) On an investigation into a defendant’s fitness to plead—

(a) the court must hear any relevant evidence and submissions put to the court by the prosecution or the defence; and

(b) if the court considers that it is in the interests of justice to do so, the court may—

(i) call evidence on its own initiative; or

(ii) require the defendant to be examined by a psychiatrist or other health professional; or

(iii) require the results of the examination to be put before the court.

(2) The court must decide whether the defendant is unfit to plead.

(3) If the court finds that the defendant is unfit to plead, the court must also decide whether the defendant is likely to become fit to plead within the next 12 months.

If the court decides that the defendant is fit to plead, the proceeding brought against the defendant must be continued in accordance with ordinary criminal procedure.

If the court decides that the defendant is unfit to plead and is unlikely to become fit to plead within the next 12 months, the court must—

(a) for a proceeding in the Supreme Court—

(i) discharge any jury empanelled for the proceeding; and

(ii) hold a special hearing under section 316; and

(b) for a proceeding in the Magistrates Court—conduct a hearing under section 335.

(1) If the court decides that the defendant is unfit to plead but is likely to become fit to plead within the next 12 months, the court must adjourn the proceeding and—

(a) if the defendant is charged with a serious offence—remand the defendant in custody or release the defendant on bail; and

(b) if the defendant is charged with an offence other than a serious offence—make the orders it considers appropriate.

(2) The orders the court may make under subsection (1) (b) include—

(a) an order remanding the defendant in custody; and

(b) an order requiring the defendant to submit to the jurisdiction of the tribunal to enable the tribunal to make a mental health order.

(3) The court may (on application or its own initiative) reinvestigate the defendant’s fitness to plead at any time before the end of the 12-month period.

(4) However, if the court has not reinvestigated the defendant’s fitness to plead within 6 months after the day the initial decision was made, the court must reinvestigate it as soon as practicable (but within 30 days) after the end of that period.

(5) If, before the end of the 12-month period, the defendant has not been found fit to plead, the court must reinvestigate the defendant’s fitness to plead as soon as practicable (but within 3 months) after the end of that period.

(6) On a reinvestigation—

(a) the court must hear any relevant evidence and submissions put to the court by the prosecution or the defence; and

(b) if the court considers that it is in the interests of justice to do so, the court may—

(i) call evidence on its own initiative; or

(ii) require the defendant to be examined by a psychiatrist or other health professional; or

(iii) require the results of the examination to be put before the court.

(7) The court must decide whether the defendant is unfit to plead.

(8) If the court decides that the defendant is fit to plead, the proceeding brought against the defendant must be continued in accordance with ordinary criminal procedure.

(9) If, on a reinvestigation mentioned in subsection (5), the court decides that the defendant is unfit to plead, the court must—

(a) for a proceeding in the Supreme Court—

(i) discharge any jury empanelled for the proceeding; and

(ii) hold a special hearing under section 316; and

(b) for a proceeding in the Magistrates Court—conduct a hearing under section 335.

If section 315 (1) applies, the

The

A determination by the tribunal

A decision

Note For the relevant review of fitness to plead provisions, see the Mental Health (Treatment and Care) Act 1994, s 68.

tribunal determines

Magistrates Court decides as mentioned in section 315C or section 315D (9)

tribunal determines

Magistrates Court decides as mentioned in section 315C or section 315D (9)

Note For the relevant review of fitness to plead provisions, see the Mental Health (Treatment and Care) Act 1994, s 68.

This part amends the Magistrates Court Act 1930.

(aa) an appeal by any of the following from a decision of the Magistrates Court under the Crimes Act, section 315A (2) or (3) (Investigation into fitness to plead) or section 315D (7) (Person found temporarily unfit to plead):

(i) the person whose fitness to plead was decided;

(ii) anyone who appeared at the proceeding in which the decision was made;

(iii) anyone else with the leave of the court;

(2) As soon as practicable after instituting the appeal, the appellant must—

(a) file a copy of the notice of appeal with the Magistrates Court; and

(b) serve a copy of the notice of appeal on—

(i) for an appeal mentioned in section 208 (1) (aa)—each other person mentioned in that paragraph; and

(ii) for any other appeal—the informant.

(a)

(aa),

conviction

decision,

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

(e) to make orders for the treatment, care, control, rehabilitation and protection of people found unfit to plead, to review their welfare and to make any appropriate order for their release (subject to conditions or unconditionally);

(ea) to review the fitness to plead of certain people under section 68;

(1) This section applies if—

(a) the Supreme Court or the Magistrates Court makes a decision under the Crimes Act 1900, section 315A (2) or section 315D (7) 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 day 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 decide on the balance of probabilities whether the person is unfit to plead.

(6) The tribunal must decide that the person is unfit to plead if satisfied that the person’s mental processes are disordered or impaired to the extent that the person cannot—

(a) understand the nature of the charge; or

(b) enter a plea to the charge and exercise the right to challenge jurors or the jury; or

(c) understand that the proceeding is an inquiry about whether the person committed the offence; or

(d) follow the course of the proceeding; or

(e) understand the substantial effect of any evidence that may be given in support of the prosecution; or

(f) give instructions to the person’s lawyer.

(7) The person is not unfit to plead only because the person is suffering from memory loss.

(8) 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).

The registrar must serve a copy of a decision, determination or recommendation made under section 68 or section 70 on—

(a) the person about whom the decision, determination or recommendation is made; and

(b) the representative of that person (if any); and

(c) the community advocate; and

(d) the director of public prosecutions; and

(e) if the person about whom the decision, determination or recommendation is made is a child—the C&YP chief executive.

(d) reviewing a person’s fitness to plead under section 68; or

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.