New South Wales Repealed Acts

This legislation has been repealed.

MENTAL HEALTH (CRIMINAL PROCEDURE) AMENDMENT ACT 2005 - SCHEDULE 3

SCHEDULE 3 – Amendment of Mental Health Act 1990

(Section 4)

[1] Section 80 Tribunal to review cases of persons found unfit to be tried

Omit section 80 (1) (a). Insert instead:

(a) to an accused person who has been found, after an inquiry by a court, to be unfit to be tried for an offence and is ordered to be detained in a hospital or other place, or is granted bail, under section 17 of the Mental Health (Criminal Procedure) Act 1990 , and

[2] Section 80 (3)

Omit the subsection. Insert instead:

(3) If the Tribunal is of the opinion that a person has become fit to be tried for an offence, it must notify the court that made the finding of unfitness and the Director of Public Prosecutions accordingly.

[3] Section 80 (5)

Insert after section 80 (4):

(5) If the Tribunal is of the opinion that a person referred to in subsection (1) (a) has not become fit to be tried for an offence and will not, during the period of 12 months after the finding of unfitness by the court, become fit to be tried for the offence, the Tribunal must notify the court that made the finding of unfitness and the Director of Public Prosecutions accordingly.

[4] Section 82 Tribunal to review cases of forensic patients

Omit "Attorney General accordingly" from section 82 (3).
Insert instead "Director of Public Prosecutions and the court that made the finding of unfitness".

[5] Section 82 (3A)

Insert after section 82 (3):

(3A) The Tribunal must notify the Court and the Director of Public Prosecutions if, for the purpose of making a recommendation under this section in relation to a forensic patient subject to a determination that the patient is unfit to be tried for an offence, the Tribunal forms the opinion that the patient:

(a) has not become fit to be tried for an offence, and

(b) will not, during the period of 12 months after the finding of unfitness by the court, become fit to be tried for the offence.

[6] Section 82 (5)

Omit the subsection. Insert instead:

(5) The Tribunal may not recommend the release of a forensic patient who:

(a) is remanded in custody under section 10 (3) (c) of the Mental Health (Criminal Procedure) Act 1990 pending an inquiry into the question of the person's unfitness to be tried for an offence, or

(b) has been transferred to a hospital while serving a sentence of imprisonment and has not served the term of the sentence or, if a non-parole period has been set in relation to the sentence, the non-parole period.

[7] Section 93 Breach of condition of order for release

Insert after section 93 (1) (a):

(a1) has committed a breach of a condition of an order releasing the person from custody under section 39 of the Mental Health (Criminal Procedure) Act 1990 , or

[8] Section 104

Omit the section. Insert instead:

104 Termination of classification as forensic patient of person who becomes fit to be tried for an offence A person in respect of whom, after a finding that the person is unfit to be tried for an offence, the Tribunal has notified the court that made the finding and the Director of Public Prosecutions that it is of the opinion that the person has become fit to be tried for an offence (whether or not a special hearing has been conducted under section 19 of the Mental Health (Criminal Procedure) Act 1990 in respect of the offence) ceases to be a forensic patient:

(a) on a finding, at a further inquiry by a court as to the person's unfitness, that the person is fit to be tried for the offence, or

(b) if the Director of Public Prosecutions advises the Minister that the person will not be further proceeded against in respect of the offence--on the person's release from detention pursuant to section 29 of the Mental Health (Criminal Procedure) Act 1990 ,

whichever first occurs.

[9] Section 105

Omit the section. Insert instead:

105 Termination of classification as forensic patient of person serving term of imprisonment for which no non-parole period set A person who, while serving a term of imprisonment for which no non-parole period has been set, has been transferred to a hospital from a prison ceases to be a forensic patient:

(a) on the expiry of the term, or

(b) on being classified by the Tribunal as a continued treatment patient, or

(c) on being transferred to a prison,

whichever first occurs.

[10] Section 106

Omit the section. Insert instead:

106 Termination of classification as forensic patient of person serving sentence of imprisonment for life A person who, while serving a sentence of imprisonment for life, being a sentence imposed otherwise than pursuant to a special hearing under section 19 of the Mental Health (Criminal Procedure) Act 1990 , has been transferred to a hospital from a prison ceases to be a forensic patient on being transferred to a prison.

[11] Section 107

Omit the section. Insert instead:

107 Termination of classification as forensic patient of person serving term of imprisonment for which non-parole period set A person who, while serving a term of imprisonment for which a non-parole period has been set, has been transferred to a hospital from a prison ceases to be a forensic patient:

(a) on the expiry of the term of imprisonment, or

(b) if the non-parole period has expired--on unconditional release by order of the prescribed authority following a recommendation of the Tribunal, or

(c) if the non-parole period has expired and the person has been released by order of the prescribed authority subject to conditions--on the expiry of any time specified in the conditions as being a time during which those conditions, or any of them, are to be complied with, or

(d) on being classified by the Tribunal as a continued treatment patient, or

(e) on being transferred to a prison,

whichever first occurs.

[12] Section 108 Termination of classification as forensic patient of person on remand

Omit "Attorney General to the Minister that the person will not be further proceeded against by the Attorney General or the Director of Public Prosecutions" from section 108 (a).
Insert instead "Director of Public Prosecutions to the Minister that the person will not be further proceeded against".

[13] Schedule 1 Dictionary of terms used in the Act

Insert at the end of paragraph (c) of the definition of "forensic patient":

, or

(d) a person who is granted bail pursuant to section 14 (b) (ii) or 17 (2) of the Mental Health (Criminal Procedure) Act 1990 .

[14] Schedule 7 Savings, transitional and other provisions

Insert at the end of clause 2 (1A):

Mental Health (Criminal Procedure) Amendment Act 2005

[15] Schedule 7, Part 9

Insert after Part 8:

Part 9 - Provisions consequent on enactment of Mental Health (Criminal Procedure) Amendment Act 2005

45 Application of amendments

(1) In this clause, "amending Act" means the Mental Health (Criminal Procedure) Amendment Act 2005 .

(2) An amendment made by Schedule 3 [1], [2], [3], [4] or [5] to the amending Act applies to a finding by a court that a person is unfit to be tried for an offence whether or not the finding is made in proceedings commenced before, on or after the commencement of the amendment.

(3) Section 82 (5) (b) (as inserted by the amending Act) applies to a forensic patient whether or not the relevant transfer to a hospital occurred before, on or after the commencement of the paragraph.

(4) An amendment made to this Act by Schedule 3 [7] to the amending Act applies to orders whether made before, on or after the commencement of the amendment.

(5) An amendment made to this Act by Schedule 3 [9], [10] or [11] to the amending Act extends to a person who was a forensic patient immediately before the commencement of the amendment.

(6) An amendment made to this Act by Schedule 3 [13] to the amending Act applies to a person whether or not the relevant grant of bail was made before, on or after the commencement of the amendment.

[16] Explanatory note

Omit the Tables to the explanatory note. Insert instead: