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CRIMINAL CODE AMENDMENT BILL 2002

357A. Disposition when person incapable of understanding
357B. Period of detention

1. Short title
This Act may be cited as the Criminal Code Amendment Act 2002.

2. Commencement
This Act comes into operation on the date fixed by the Administrator by notice in the Gazette.

3. Want of understanding of accused person
Section 357 of the Criminal Code is amended by omitting subsections (3) and (4) and substituting the following:

"(3) If the court finds that the accused person is not capable of understanding the proceedings (which is to be determined on the balance of probabilities), the court must inquire into the likelihood that the person will become capable of understanding the proceedings in the future.

"(4) If the court finds it is likely that the accused person will become capable of understanding the proceedings within the next 6 months, the court may adjourn the proceedings until the accused person can be dealt with according to law.

"(5) If the court adjourns the proceedings in order that the accused person may become capable of understanding the proceedings, the court may –

(a) remand the person in custody in a place and in a manner that the court thinks fit; or

(b) admit the person to bail.

"(6) If the court is satisfied that there is a substantial risk of the accused person offending or posing a risk to other persons, the person must not be released on bail under subsection (5)(b) unless in the care and under the control of another person who is capable of understanding the conditions the court imposes on the bail and who undertakes to ensure that the bailed person complies with those conditions.

"(7) If the court finds that it is unlikely the accused person will become capable of understanding the proceedings within the next 6 months, the court must conduct a hearing in relation to the matter with which the accused person is charged and must decide whether the person did the act that forms the basis of the charge without enquiring into the question of whether the person had a guilty mind.

"(8) The court –

(a) is to conduct a hearing under subsection (7) as nearly as possible as if it were a criminal trial; and

(b) may return a finding –

(i) that the person did not do the act; or

(ii) that the person did the act,

that forms the basis of the charge.

"(9) A hearing under subsection (7) –

(a) operates as a bar to further proceedings in the same manner as if it were a criminal trial; and

(b) is subject to appeal as if it were a criminal trial.

"(10) If at a hearing under subsection (7) the court finds that the person did not do the act, the person is to be acquitted of the charge.

"(11) If at a hearing under subsection (7) the court finds that the person did the act, the court must deal with the person under section 357A.

"(12) In this section, a reference to an accused person doing an act that forms the basis of a charge includes the person omitting to do an act where the omission forms the basis of the charge.".

4. New sections
The Criminal Code is amended by inserting after section 357 the following:

"357A. Disposition when person incapable of understanding

"(1) If at a hearing under section 357(7) the court finds that the accused person did the act (or omitted to do the act, as the case may be), the court must either –

(a) order that the person is to be detained for a period determined in accordance with section 357B; or

(b) discharge the person subject to the conditions that the court thinks fit.

"(2) If the court makes an order under subsection (1)(a), the court must not order that the person be detained in a prison unless there is no other satisfactory place available to detain the person.

"(3) If the court makes an order under subsection (1)(a), the court must not order that the person be detained in a hospital unless effective treatment is available for the person.

"(4) If the court is satisfied that there is a substantial risk of the person re-offending or posing a risk to other persons, the person must not be discharged under subsection (1)(b) unless in the care and under the control of another person who is capable of understanding the conditions the court imposes on the discharge and who undertakes to ensure that the discharged person complies with those conditions.

"357B. Period of detention

"If the court orders a person to be detained under section 357A(1), the period of detention is to be not less than the period of imprisonment that would have been imposed by the court on a finding of guilt for the offence with which the person was charged having regard to –

(a) the nature of the offence and the circumstances of its commission (including the relationship between the person's mental condition and the offending conduct);

(b) the person's character, history of offending, health and mental condition; and

(c) the public interest.".

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