New South Wales Repealed Acts New South Wales Repealed ActsThis legislation has been repealed.
Omit "Attorney General" wherever occurring. Insert instead "Court".
Omit "Attorney General" from section 10 (1) (a). Insert instead "Court".
Omit "Attorney General's".
Omit sections 11 and 11A. Insert instead:
11 Determination of question of unfitness(1) The question of a person's unfitness to be tried for an offence is to be determined by the Judge alone.(2) Any determination by the Judge under this section must include the principles of law applied by the Judge and the findings of fact on which the Judge relied.
Omit section 12 (4).
Omit "Attorney General of the determination and furnish the Director
of Public Prosecutions with a copy of the notification" from section 16 (4).
Insert instead "Director of Public Prosecutions of the determination".
Insert after section 17 (3):
(4) As soon as practicable after the grant of bail under subsection (2) or the making of an order under subsection (3), the Registrar of the Court is to notify the Mental Health Review Tribunal of the grant of bail or the terms of the order.
Omit the section.
Omit the section. Insert instead:
19 Court to hold special hearing after advice received from Director of Public Prosecutions(1) If the Court receives a notification of a determination from the Mental Health Review Tribunal under section 16 (3) of this Act or under section 80 (5) or 82 (3A) of the Mental Health Act 1990 that a person will not, during the period of 12 months after the finding of unfitness, become fit to be tried for an offence, the Court:(a) is to obtain the advice of the Director of Public Prosecutions as to whether further proceedings will be taken by the Director of Public Prosecutions in respect of the offence, and(b) is to conduct a special hearing as soon as practicable unless the Director of Public Prosecutions advises that no further proceedings will be taken.(2) A special hearing is a hearing for the purpose of ensuring, despite the unfitness of the person to be tried in accordance with the normal procedures, that the person is acquitted unless it can be proved to the requisite criminal standard of proof that, on the limited evidence available, the person committed the offence charged or any other offence available as an alternative to the offence charged.(3) If the Director of Public Prosecutions advises the Court under subsection (1) (a) that no further proceedings will be taken in respect of the offence, the Director of Public Prosecutions is also to give that advice to the Minister for Police.(4) Subsection (1) does not apply if the Court has already held a special hearing in relation to the offence concerned.
Omit "section 18, the Attorney
General".
Insert instead "section 19, the Director of Public Prosecutions".
Insert "for which a jury has been constituted" after "a special hearing" in section 21 (4).
Omit the section. Insert instead:
21A Judge to try special hearing unless election for jury made(1) At a special hearing, the question whether an accused person has committed an offence charged or any other offence available as an alternative to an offence charged is to be determined by the Judge alone unless an election to have a special hearing determined by a jury is made by:(a) the accused person and the Court is satisfied that the person sought and received advice in relation to the election from an Australian legal practitioner and understood the advice, or(b) an Australian legal practitioner representing the accused person, or(c) the prosecutor.(2) An election to have a special hearing determined by a jury must be made:(a) in the case of an election by the accused person or the Australian legal practitioner representing the accused person--on any day before the day fixed for the special hearing in the Supreme Court or the District Court, or(b) in the case of an election by the prosecutor--at least 7 days before the day fixed for the special hearing in the Supreme Court or the District Court.(3) An accused person or an Australian legal practitioner representing an accused person who elects to have a special hearing determined by a jury may, at any time before the day fixed for the special hearing, subsequently elect to have the matter determined by the Judge alone.(4) The Jury Act 1977 applies to and in respect of the constitution of a jury, and a jury constituted, for the purpose of a special hearing in the same way as it applies to and in respect of the constitution of a jury, and a jury constituted, for the trial of any criminal proceedings.(5) A member of a jury otherwise constituted for the purpose of any proceedings relating to the same accused person and the same offence is disqualified from being a member of a jury constituted as referred to in subsection (4).(6) Rules of court may be made with respect to elections under this section.
Insert after section 22:
22A Amendment of indictment(1) The provisions of the Criminal Procedure Act 1986 apply to the amendment of an indictment under this section in the same way as they apply to the amendment of an indictment in ordinary criminal proceedings, subject to any modifications that the Court considers appropriate in the circumstances.(2) Without limiting subsection (1), the Director of Public Prosecutions may, with the leave of the Court or the consent of an Australian legal practitioner representing the accused person, amend an indictment to which a special hearing relates.
Omit section 23 (5). Insert instead:
(5) A limiting term nominated in respect of a person takes effect from the time when it is nominated unless the Court:(a) after taking into account the periods, if any, of the person's custody or detention before, during and after the special hearing (being periods related to the offence), directs that the term be taken to have commenced at an earlier time, or(b) directs that the term commence at a later time so as to be served consecutively with (or partly concurrently and partly consecutively with) some other limiting term nominated in respect of the person or a sentence of imprisonment imposed on the person.
(6) When making a direction under subsection (5) (b), the Court is to take into account that:(a) a sentence of imprisonment imposed in a normal trial of criminal proceedings may be subject to a non-parole period whereas a limiting term is not, and(b) in a normal trial of criminal proceedings, consecutive sentences of imprisonment are to be imposed with regard to non-parole periods (as referred to in section 47 (4) and (5) of the Crimes (Sentencing Procedure) Act 1999 ).
Omit the section. Insert instead:
29 Action to be taken on notification that a person is fit to be tried(1) If the Mental Health Review Tribunal has notified the Court that it is of the opinion that a person who has been found to be unfit to be tried for an offence has become fit to be tried for the offence (whether or not a special hearing has been conducted in respect of the offence), the Court:(a) is to obtain the advice of the Director of Public Prosecutions as to whether further proceedings will be taken by the Director of Public Prosecutions in respect of the offence, and(b) is to hold a further inquiry as to the person's fitness as soon as practicable unless the Director of Public Prosecutions advises that the person will not be further proceeded against in respect of the offence.(2) The Director of Public Prosecutions must advise the Minister for Health and the Mental Health Review Tribunal if the Director has determined that no further proceedings will be taken in respect of the offence.(3) If the Director of Public Prosecutions advises the Minister for Health that a person will not be further proceeded against, the Minister for Health must, after having informed the Minister for Police of the date of the person's release, do all such things within the power of the Minister for Health to order the person's release from detention or to otherwise ensure the person's release from detention.(4) Sections 11 and 12 apply to and in respect of a further inquiry under this section in the same way as those sections apply to and in respect of an inquiry.
Omit section 31 (2).
Insert "(or was at the time of the alleged commission of the offence to which the proceedings relate)" after "defendant is" in section 32 (1) (a).
Insert after section 32 (4):
(4A) A Magistrate is to state the reasons for making a decision as to whether or not a defendant should be dealt with under subsection (2) or (3).
(4B) A failure to comply with subsection (4A) does not invalidate any decision of a Magistrate under this section.
Insert after section 32:
32A Reports from treatment providers(1) Despite any law, a person who is to assess another person's mental condition or provide treatment to another person in accordance with an order under section 32 (3) (a "treatment provider") may report a failure to comply with a condition of the order by the other person to any of the following:(a) an officer of Community Offender Services, Probation and Parole Service,(b) an officer of the Department of Juvenile Justice,(c) any other person or body prescribed by the regulations.(2) A treatment provider may include in a report under this section any information that the treatment provider considers is relevant to the making of a decision in relation to the failure to comply concerned.(3) A report provided under this section is to be in the form approved for the time being by the Director-General of the Attorney General's Department.
Insert after section 33 (4):
(4A) A Magistrate is to state the reasons for making a decision as to whether or not a defendant should be dealt with by an order under subsection (1) or (1A).
(4B) An authorised officer is to state the reasons for making a decision as to whether or not a defendant should be dealt with by an order under subsection (1D).
(4C) A failure to comply with subsection (4A) or (4B) does not invalidate any decision of a Magistrate or authorised officer under this section.
Omit the section.
Insert at the end of the section:
(2) If a special verdict of not guilty by reason of mental illness is returned at the trial of a person for an offence, the Court may remand the person in custody until the making of an order under section 39 in respect of the person.
Insert at the end of the section:
(2) The Court is not to make an order under this section for the release of a person from custody unless it is satisfied, on the balance of probabilities, that the safety of the person or any member of the public will not be seriously endangered by the person's release.
(3) As soon as practicable after the making of an order under this section, the Registrar of the Court is to notify the Minister for Health and the Mental Health Review Tribunal of the terms of the order.
Insert at the end of clause 1A (1):
Mental Health (Criminal Procedure) Amendment Act 2005
Insert after clause 2:
3 Amendments made by Mental Health (Criminal Procedure) Amendment Act 2005(1) Except as provided by subclause (2), an amendment made to this Act by Schedule 1 to the Mental Health (Criminal Procedure) Amendment Act 2005 applies to proceedings whether commenced before, on or after the commencement of the amendment.(2) An amendment made to this Act by Schedule 1 [4] or [12] to the Mental Health (Criminal Procedure) Amendment Act 2005 applies to proceedings for offences, whether or not the offences were committed before, on or after the commencement of the amendment, but does not apply to proceedings commenced before the commencement of the amendment.