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Criminal Justice (Mental Impairment) Act 1999
An Act to provide for procedures for dealing with persons who are unfit to stand trial or who are not guilty of offences owing to insanity and to amend the Criminal Code, the Mental Health Act 1996 and the Sentencing Act 1997
[Royal Assent 14 May 1999]
Be it enacted by His Excellency the Governor of Tasmania, by and with the advice and consent of the Legislative Council and House of Assembly, in Parliament assembled, as follows:
PART 1 - Preliminary
This Act may be cited as the Criminal Justice (Mental Impairment) Act 1999 .
The provisions of this Act commence on a day or days to be proclaimed.
In this Act, unless the contrary intention appears –authorised person means a person authorised by the Attorney-General to exercise the powers of an authorised person under this Act;Director means the Director of Corrective Services;immediate family, in relation to a deceased victim, includes –(a) the spouse of the deceased victim; and(b) a parent, guardian or step-parent of the deceased victim; and(c) a child or stepchild of the deceased victim; and(d) a brother, sister, stepbrother or stepsister of the deceased victim;next of kin of a person means a person's spouse, parents, children, any other person who is the primary carer of the person or any other class of person prescribed by the regulations as the next of kin of a person;psychiatrist means a registered medical practitioner who is a Fellow of the Royal College of Australian and New Zealand College of Psychiatrists or who has been registered either under section 21(2)(e) of the Medical Practitioners Registration Act 1996 to practise in the specialty of psychiatry or under section 21(2)(g) of that Act to practise as a psychiatrist in a declared area of need;regulations means regulations made and in force under this Act;responsible medical officer means the person appointed as responsible medical officer under section 7 ;restriction order means a restriction order made and in force under Part 4 ;special facility means a place declared by the Attorney-General under section 6 as a place in which persons may be detained under a restriction order;spouse includes a person who is cohabiting with another person of the opposite sex as the spouse of that other person, although not legally married to him or her;supervision order means an order made under section 23(b) or section 27(b) ;victim, in relation to an offence or conduct that would, but for the fact that the perpetrator has been found not guilty of the offence by reason of insanity or the fact that a finding to that effect has been made, have constituted an offence, means a person who has suffered significant mental or physical injury as a direct consequence of the offence or conduct and includes the immediate family of a deceased victim.
(1) This Act applies to all courts.(2) The application of this Act extends to a restriction order made under the Sentencing Act 1997 .
For the purposes of this Act, the question whether a person is unfit to stand trial on a charge of an offence is a question of fact.
(1) In this section,prison has the same meaning as in the Corrections Act 1997 .(2) Where the Attorney-General is satisfied that a place is suitable for the accommodation and medical treatment of persons who –the Attorney-General may, by order published in the Gazette, declare that that place is a special facility for the purposes of this Act.(a) are liable to be detained under a restriction order; and(b) in the interests of their own health or safety or for the protection of other persons, need to be so detained in conditions of special security –(3) An order under subsection (2) is not a statutory rule for the purposes of the Rules Publication Act 1953 .(4) A place that is a prison or part of a prison may be declared as a special facility under this section.(5) A person who is being detained in a special facility that is or forms part of a prison is, for the purposes of the Corrections Act 1997 , taken to be detained in that prison, but is, for any other purpose, taken not to be detained in that prison.(6) The Director may, on the recommendation of the responsible medical officer, transfer a person who is being detained in a special facility to another special facility.(7) Subject to subsection (8) , the Director may, in the interests of the rehabilitation and medical treatment of a person who is detained in a special facility which forms part of a prison, transfer that person within the prison system generally.(8) A transfer under subsection (7) –(a) is to be made on the recommendation of the responsible medical officer; and(b) is to be made with the consent of the person detained.(9) The Director may, where the health, welfare or security of a person who is detained in a special facility which forms part of a prison or another person is at risk, transfer the first-mentioned person within the prison system generally.(10) A transfer under subsection (9) is to be reported as soon as practicable by the Director to the Attorney-General and the responsible medical officer.(11) A transfer under subsection (9) ceases to be valid at the expiration of 3 days from the date of the transfer unless –(a) the Attorney-General has, within that period, consented to the transfer; and(b) the responsible medical officer has, within that period, ratified the transfer.(12) Where a transfer under subsection (9) ceases to be valid, the person concerned is to be returned to the special facility in which he or she was detained immediately before the transfer under that subsection.(13) A transfer under subsection (9) ceases to be valid on the expiration of 7 days from the date of consent of the Attorney-General or the date of ratification of the responsible medical officer, whichever is the later.(14) On the recommendation of the Director made with the consent of the responsible medical officer, the Attorney-General may, on the expiration of the period referred to in subsection (13) , extend the transfer for further periods, each period not exceeding 7 days.(15) Where the whole or a part of a prison is a special facility –(a) the Director must, notwithstanding any law to the contrary, ensure that, as far as possible, effect is given to the directions or requirements of the responsible medical officer with respect to the treatment of a person liable to be detained in that facility; and(b) no person has, because the facility is or forms part of a prison, any right, power or duty to prevent or interfere with the carrying out of those directions or requirements that he or she would not have if that special facility was not, or did not form part of, that prison.
7. Responsible medical officer
(1) The Attorney-General may, by order published in the Gazette, appoint a psychiatrist to be the responsible medical officer for the purposes of this Act.(2) An order under subsection (1) is not a statutory rule for the purposes of the Rules Publication Act 1953 .
PART 2 - Unfitness to stand trial
(1) A person is unfit to stand trial for an offence if, because the person's mental processes are disordered or impaired or for any other reason, the person is –(a) unable to understand the nature of the charge; or(b) unable to plead to the charge or to exercise the right of challenge; or(c) unable to understand the nature of the proceedings; or(d) unable to follow the course of the proceedings; or(e) unable to make a defence or answer the charge.(2) Notwithstanding subsection (1)(e) , a person is not unfit to be tried if the only reason that the person is unable to make a defence or answer a charge is that he or she is suffering from memory loss.
9. Presumption of fitness to stand trial and standard of proof
(1) A person's fitness to stand trial is to be presumed unless it is established, on an investigation under this Part, that the person is unfit to stand trial.(2) The question of a person's unfitness to stand trial is to be determined on the balance of probabilities.
10. Reservation of question of fitness to stand trial
(1) A court before which a person is charged with an offence may, on the application of the prosecutor, the defendant or on its own initiative, reserve the question of the defendant's fitness to stand trial for investigation under this Part.(2) If, at a hearing for committal to stand trial for an indictable offence, the question of a defendant's fitness to stand trial arises, the question is to be reserved for determination by the Supreme Court and the committal hearing is to be completed in accordance with appropriate criminal procedures.(3) If, after a trial begins, the court of trial decides that the question of the defendant's fitness to stand trial should be investigated, the court may adjourn or discontinue the trial and proceed, subject to this Part, with the investigation.(4) Nothing in this section prevents the question of a defendant's fitness to stand trial from being raised more than once in the same proceedings.(5) A court must not conduct an investigation into a defendant's fitness to stand trial unless it appears to the court that there is a real and substantial question as to his or her fitness to stand trial.
11. Procedure on investigation
(1) On an investigation into a defendant's fitness to stand trial, a court –(a) must hear any relevant admissible and probative evidence and representations put to the court by the prosecutor or the defendant; and(b) may call evidence on its own initiative; and(c) may require the defendant to undergo an examination by a psychiatrist or other appropriate expert and require the results of the examination to be reported to the court.(2) At an investigation, the defendant is entitled to be legally represented.
12. Investigation by Supreme Court into fitness to stand trial
(1) In the case of proceedings in the Supreme Court, the question whether a defendant is fit to stand trial must be determined by a jury.(2) The application of the Jury Act 1899 extends to the constitution and proceedings of a jury for the purposes of this section.(3) Each juror chosen under this section must –(a) take an oath in the form specified in Part 1 of Schedule 1 ; or(b) make an affirmation in the form specified in Part 2 of Schedule 1 .(4) If a jury determines that the defendant is unfit to stand trial, it must also determine whether or not the defendant is likely to become fit to stand trial during the next 12 months.
13. Finding that defendant is not unfit to stand trial
(1) If an investigation is completed before a jury is empanelled for the purposes of a trial and the court does not find that the defendant is unfit to stand trial, the court must call on the defendant to plead to the charge and, if he or she does not do so, must enter a plea of not guilty.(2) If an investigation is completed after a jury is empanelled for the purposes of a trial and the court does not find that the defendant is unfit to stand trial, the court must resume the proceedings in accordance with appropriate criminal procedures.
14. Finding that defendant is not fit to stand trial
(1) If, on an investigation, a court finds that the defendant is unfit to stand trial or records a finding to that effect under section 19 , the court must determine whether or not the defendant is likely to become fit to stand trial during the next 12 months.(2) If the court determines that the defendant is likely to become fit to stand trial during the next 12 months, the court must adjourn the proceedings for a period not exceeding 12 months and discharge any jury empanelled for the purposes of the trial.(3) If, after the adjournment, the court is of the opinion that the grounds on which the investigation was thought to be necessary no longer exist, the court may decide not to proceed with the investigation.(4) Where the court decides not to proceed with the investigation, the court must call on the defendant to plead to the charge and, if he or she does not do so, must enter a plea of not guilty.(5) In the case of a trial in the Supreme Court, a decision under subsection (3) is to be made without further proceedings before a jury.
(1) A court must proceed to hold a special hearing if –(a) the court determines that the defendant is not likely to become fit to stand trial within 12 months; or(b) the defendant does not become fit to stand trial within 12 months after the determination referred to in section 14(2) .(2) The purpose of the special hearing is to determine whether, despite the unfitness of the defendant to stand trial, on the limited evidence available the defendant is not guilty of the offence.(3) In the case of proceedings in the Supreme Court, the question whether a defendant is not guilty of the offence must be determined by a jury.(4) The application of the Jury Act 1899 extends to the constitution and proceedings of a jury for the purposes of this section.
16. Procedures at special hearings
(1) A special hearing is to be conducted so that the onus of proof and standard of proof are the same as in a trial of criminal proceedings and in other respects as nearly as possible as if it were a trial of criminal proceedings.(2) The fact that the person has been found to be unfit to stand trial is taken not to be an impediment to his or her representation.(3) Without limiting the generality of subsection (1) , at a special hearing –(a) the defendant is taken to have pleaded not guilty to the offence; and(b) the defendant's legal representative may exercise the defendant's rights to challenge jurors or the jury; and(c) the defendant may raise any defence that could be properly raised as if the special hearing were an ordinary trial of criminal proceedings; and(d) the defendant is entitled to give evidence.
17. Findings at special hearings
The following findings are available to a court at a special hearing:(a) not guilty of the offence charged or of any offence available as an alternative;(b) not guilty of the offence charged or of any offence available as an alternative, but a finding cannot be made that the defendant is not guilty of a specified offence or specified offences available as an alternative;(c) not guilty of the offence charged on the ground of insanity or a finding to the same effect;(d) a finding cannot be made that the defendant is not guilty of the offence charged or any offence available as an alternative.
(1) A defendant who is found not guilty of an offence at a special hearing is taken to have been found not guilty at an ordinary trial of criminal proceedings.(2) If –the court must declare that the defendant is liable to supervision under Part 4 .(a) a defendant is found not guilty of the offence charged on the ground of insanity or on a finding being made to that effect; or(b) a finding cannot be made that the defendant is not guilty of an offence –
19. When investigation into fitness during trial may be dispensed with
A court may, if the prosecutor and defendant agree, dispense with or terminate an investigation into the defendant's fitness to stand trial and –(a) record a finding that the defendant is unfit to stand trial; or(b) proceed under section 13 as if, after the investigation, the court had made a finding that the defendant is not unfit to stand trial.
20. Same jury to determine all issues
Unless a judge otherwise orders, the same jury may be empanelled for the purposes of –(a) an investigation under section 12 as to whether or not a defendant is fit to stand trial; and(b) a special hearing under section 15 as to whether the defendant is not guilty of an offence with which he or she is charged; and(c) the trial for the offence with which the defendant is charged.
PART 3 - Defence of Insanity
21. Procedure for dealing with persons found not guilty by reason of insanity
On a verdict that a person is not guilty of an offence on the ground of insanity or on a finding being made to that effect, the court must declare that the person is liable to supervision under Part 4 .
PART 4 - Persons liable to supervision
Division 1 - Interpretation
In this Part,defendant includes a person who is subject to a restriction order.
Division 2 - Powers of courts
23. Powers of courts where defendant liable to supervision
A court which declares that a defendant is liable to supervision under this Part may –(a) release the defendant unconditionally; or(b) make a supervision order releasing the defendant on such conditions as the court thinks fit; or(c) make a community treatment order, within the meaning of the Mental Health Act 1996 , in respect of the defendant; or(d) make a continuing care order, within the meaning of the Mental Health Act 1996 , in respect of the defendant.
Division 3 - Restriction orders
24. Powers of Supreme Court to make restriction orders
(1) Where the Supreme Court declares that a defendant is liable to supervision under this Part, the Court may also make a restriction order under which the defendant is to be admitted to and detained in a special facility.(2) A restriction order under which a defendant is to be admitted to and detained in a special facility is sufficient authority for the Director to admit the defendant to that facility and detain the defendant until the order is discharged by the Supreme Court.
25. Referral of matter of restriction orders to Supreme Court
(1) Where a magistrate is of opinion, after taking into account the matters required to be considered in determining the order to be made, that a restriction order should be made in respect of a defendant, the magistrate may refer the matter to the Supreme Court for determination.(2) On a referral of a matter to the Supreme Court under subsection (1) , the Court must enquire into the circumstances of the case and has the same powers to deal with the defendant as if the defendant had been dealt with in the Court.
26. Discharge of restriction orders
(1) A person who is detained under a restriction order may apply to the Supreme Court for discharge of the order if –(a) the first such application is not less than 2 years after the order was made; and(b) each subsequent application is made not less than 2 years after the preceding application.(2) The Supreme Court may, on an application under this section or section 37(3)(b) , discharge a restriction order.(3) For the purposes of a hearing by the Supreme Court for discharge of a restriction order –(a) an application by the person detained is to be in writing with a copy served on the Director of Public Prosecutions; and(b) the Director of Public Prosecutions or counsel representing the Director of Public Prosecutions must appear for the Crown at the hearing of the application; and(c) the applicant may be present at the hearing of the application unless the Court makes an order to the contrary; and(d) the applicant and the Director of Public Prosecutions may call evidence in support of, or in opposition to, the application; and(e) if either party causes a report to be prepared relating to the application and intends to tender the report as evidence, that party must provide the other party with a copy of the report; and(f) if either party puts any such report in evidence –(i) the other party is entitled to cross-examine the person who made the report; and(ii) the party that put the report in evidence may, after any such cross-examination, examine the person making the report by way of reply; and(g) the Court may order the Director or any other person or body to prepare and submit to the Court a report in respect of such matters relating to the applicant as the Court may specify.(4) A copy of a report prepared under subsection (3)(g) is to be provided to the applicant and the Director of Public Prosecutions.
27. Powers of Supreme Court on discharge of restriction orders
Where the Supreme Court discharges a restriction order, the Court may –(a) release the defendant unconditionally; or(b) make a supervision order releasing the defendant on such conditions as the Court thinks fit; or(c) release the defendant and make a community treatment order, within the meaning of the Mental Health Act 1996 , in respect of the defendant; or(d) make a continuing care order, within the meaning of the Mental Health Act 1996 , in respect of the defendant.
28. Effect of orders under this Division
(1) An order made under section 23(c) or section 27(c) has the same effect as an order made under Part 7 of the Mental Health Act 1996 .(2) An order made under section 23(d) or section 27(d) has the same effect as an order made under section 28(1) of the Mental Health Act 1996 .
Division 4 - Subsequent trial of person found unfit to stand trial
29. Subsequent fitness for trial of person subject to continuing care order or restriction order
(1) Where –the medical practitioner must inform the Attorney-General, in writing, of that fact.(a) a defendant has been found unfit to stand trial and a court has made a continuing care order under section 23(d) ; and(b) the senior approved medical practitioner, within the meaning of the Mental Health Act 1996 , of the approved hospital in which the defendant is detained, is satisfied that he or she has become fit to stand trial –(2) Where –the responsible medical officer must inform the Attorney-General, in writing, of that fact.(a) a defendant has been found unfit to stand trial and a court has made a restriction order under section 24 ; and(b) the responsible medical officer is satisfied that the defendant has become fit to stand trial –(3) On receiving a notification under subsection (1) or (2) , the Attorney-General must, after consulting with the Director of Public Prosecutions –(a) request the court before which the defendant was found to be unfit to stand trial to resume the proceedings against the defendant; or(b) determine that no further proceedings are to be taken against the defendant for the offence in respect of which he or she was found unfit to stand trial and advise the defendant in writing of that fact.(4) On receipt of a request from the Attorney-General under subsection (3)(a) , the appropriate court must –and, if the defendant does not do so, must enter a plea of not guilty.(a) resume the proceedings against the defendant; and(b) call on the defendant to plead to the charge –(5) If proceedings are resumed against the defendant as mentioned in subsection (4) , the court may, without regard to any finding as to the guilt of the defendant, revoke the continuing care order or the restriction order made under this Act.
Division 5 - Supervision orders
30. Variation or revocation of supervision order
(1) At any time while a supervision order is in force, the court that made the order may, on the application of the Attorney-General, the defendant or any other person with a proper interest in the matter, vary or revoke the supervision order and, if the order is revoked, make, in substitution for the order, any other order that the court might have made under this Part in the first instance.(2) Without limiting the persons who may apply to vary or revoke a supervision order, a person has a proper interest in the matter if the person has the care and control of the person subject to the supervision order.(3) If a court refuses an application by or on behalf of a defendant for variation or revocation of a supervision order, a later application for variation or revocation of the order may not be made by or on behalf of the defendant for 6 months or such other period as the court may direct on refusing the application.
31. Cancellation of release under supervision order
(1) A court that has released a defendant under a supervision order may, on application by the Attorney-General, cancel the release if satisfied that the defendant has contravened, or is likely to contravene, a condition of the order.(2) An application under subsection (1) may be made, in a case of urgency, by telephone.(3) If a defendant who has been released under a supervision order commits an offence while subject to the order and is sentenced to imprisonment for the offence, the release is, by virtue of this subsection, cancelled and the supervision order is suspended while the defendant is in prison serving the term of imprisonment.
Division 6 - Court procedure
For the purposes of proceedings under this Part, a court may –(a) call such expert evidence as it thinks fit; and(b) order the production of medical reports in respect of a defendant and for that purpose may require the defendant to undergo a medical, psychiatric or psychological examination.
33. Reports on attitudes of victims and next of kin
(1) For the purpose of assisting a court to determine proceedings under this Part, the Attorney-General must provide the court with a report stating, so far as reasonably ascertainable, the views of the next of kin of the defendant and the victims, if any, of the defendant's conduct.(2) In the case of a defendant released under a supervision order, a report is not required if the purpose of the proceeding is –(a) to determine whether the defendant should be detained or subjected to a more rigorous form of supervision; or(b) to vary, in minor respects, the conditions on which the defendant was released.
34. Principle on which courts are to act
In determining –a court must apply the principle that restrictions on the defendant's freedom and personal autonomy should be kept to the minimum consistent with the safety of the community.(a) whether to discharge a restriction order or to release a defendant under this Part; or(b) the conditions of a defendant's release under a supervision order –
35. Matters to which courts are to have regard
(1) In determining proceedings under this Part, a court must, in addition to applying the principle in section 34 , have regard to –(a) the nature of the defendant's mental impairment or other condition or disability; and(b) whether the defendant is, or would if released be, likely to endanger another person or other persons generally; and(c) whether there are adequate resources available for the treatment and support of the defendant in the community; and(d) whether the defendant is likely to comply with the conditions of a supervision order; and(e) other matters that the court thinks relevant.(2) A court may not discharge a restriction order, release a defendant under this Part or significantly reduce the degree of supervision to which a defendant is subject unless the court –(a) has considered the reports of at least 2 psychiatrists, each of whom has personally examined the defendant, on –(i) the condition of the defendant; and(ii) the possible effects of the proposed action on the behaviour of the defendant; and(b) has considered the report on the attitudes of victims, if any, and next of kin prepared under this Part; and(c) is satisfied that the defendant's next of kin and the victims, if any, of the offence with which the defendant was charged have been given reasonable notice of the proceedings.(3) Notice need not be given under subsection (2)(c) to a person whose whereabouts have not, after reasonable inquiry, been ascertained.
Division 7 - Appeals to Court of Criminal Appeal
(1) In this section,decision includes a determination, a declaration and a finding.(2) An appeal lies to the Court of Criminal Appeal at the suit of the Attorney-General or the defendant from a decision or order made by the Supreme Court under this Part.(3) On an appeal, the Court of Criminal Appeal may affirm or quash the decision or order against which the appeal is brought or substitute any other decision or order as it thinks proper.
Division 8 - Review of restriction orders
37. Review of persons detained under restriction orders
(1) The detention of a person who is detained under a restriction order is to be reviewed by the Mental Health Tribunal 12 months after the order was made and at least once in each period of 12 months afterwards.(2) A review by the Mental Health Tribunal is to be held in the same manner as a review of a continuing care order under the Mental Health Act 1996 .(3) If the Mental Health Tribunal, on review, determines that detention under a restriction order is no longer warranted –(a) the Tribunal must issue the person detained with a certificate to that effect; and(b) the person so detained may apply immediately to the Supreme Court for discharge of the restriction order.
PART 5 - Miscellaneous
38. Counsel to have independent discretion
If a defendant is unable to instruct his or her legal representative on any question relating to an investigation or special hearing under this Act, the legal representative may act, in the exercise of an independent discretion, in what he or she genuinely believes to be the defendant's best interests.
39. Power of court to deal with defendant before proceedings completed
(1) If the question of a defendant's fitness to stand trial is reserved for investigation under this Act, the court by which the question was reserved or by which the investigation is to be conducted may –(a) admit the defendant to bail on condition that he or she will appear subsequently for the purposes of the investigation; or(b) remand the defendant in custody; or(c) order that the defendant be detained in a special facility; or(d) make any other order that the court thinks appropriate for the custody or detention of the defendant.(2) If –the court may exercise any of the powers conferred under subsection (1) .(a) proceedings are adjourned under Part 2 after a court determines that a defendant is likely to become fit to stand trial; or(b) a court orders that a defendant is liable to supervision under this Act but wishes to reserve the question as to how the court is to deal with the defendant –
A finding made on an investigation into a defendant's fitness to stand trial or on a special hearing does not constitute an issue estoppel against the defendant in any later civil or criminal proceedings and evidence of any such finding is not admissible against the defendant in criminal proceedings against the defendant.
41. Arrest of person escaping from detention or absent without leave
(1) If a person who is committed to detention under this Act –the person may be arrested without warrant, and returned to the place of detention, by a police officer or an authorised person.(a) escapes from the detention; or(b) is absent, without proper authority, from the place of detention –(2) A judge or magistrate of a court by which a person is released under a supervision order may, if satisfied that there are proper grounds to suspect that the person has contravened or failed to comply with a condition of the order, issue a warrant for the arrest of the person and for his or her return to the court.
42. Persons currently held in custody
(1) If, immediately before the commencement of this section, a person was detained in custody under a restriction order in force under section 382 of the Criminal Code or under Division 2 of Part IV of the Mental Health Act 1963 , that person is taken to be subject to a restriction order made under this Act on the commencement of this section.(2) Notwithstanding section 37 , immediately after the commencement of this section the Mental Health Tribunal must review the detention of a person who is taken by virtue of subsection (1) to be subject to a restriction order made under this Act on that commencement.(3) Subsections (2) and (3) of section 37 have the same application to a review held under subsection (2) as they have to a review held under that section.
The Governor may make regulations for the purposes of this Act.
Until provision is made in relation to this Act by order under section 4 of the Administrative Arrangements Act 1990 –(a) the administration of this Act is assigned to the Minister for Justice and Industrial Relations; and(b) the department responsible to the Minister for Justice and Industrial Relations for the administration of this Act is the Department of Justice and Industrial Relations.
The amendments effected by this section have been incorporated into the authorised version of the Criminal Code .
The amendment effected by this section has been incorporated into the authorised version of the Mental Health Act 1996 .
The amendments effected by this section have been incorporated into the authorised version of the Sentencing Act 1997 .
SCHEDULE 1 - Oath and affirmation of jurors
PART 1 - Oath
"Do you swear that you will conscientiously try whether the accused is unfit to stand trial for the offence with which he (or she) is charged and decide it according to the evidence and also not to disclose anything about the jury's deliberations. So help you God."
PART 2 - Affirmation
"Do you solemnly, sincerely and truly declare and affirm that you will conscientiously try whether the accused is unfit to stand trial for the offence with which he (or she) is charged and decide it according to the evidence and also not to disclose anything about the jury's deliberations."