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 and the Sentencing Act 1997
[The long title Amended by No. 69 of 2013, Sched. 1, Applied:17 Feb 2014][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 –[Section 3 Amended by No. 72 of 2005, s. 90, Applied:20 Feb 2006] [Section 3 Amended by No. 69 of 2013, Sched. 1, Applied:17 Feb 2014] approved hospital has the same meaning as in the Mental Health Act 2013 ;[Section 3 Amended by No. 72 of 2005, s. 90, Applied:20 Feb 2006] [Section 3 Amended by No. 4 of 2023, s. 12, Applied:25 Sep 2023] authorised person means a person authorised by the Chief Psychiatrist to exercise the powers of an authorised person under this Act;[Section 3 Amended by No. 72 of 2005, s. 90, Applied:20 Feb 2006] [Section 3 Amended by No. 69 of 2013, Sched. 1, Applied:17 Feb 2014] [Section 3 Amended by No. 4 of 2023, s. 12, Applied:25 Sep 2023][Section 3 Amended by No. 4 of 2023, s. 12, Applied:25 Sep 2023] Chief Psychiatrist has the same meaning as in the Mental Health Act 2013 ;[Section 3 Amended by No. 72 of 2005, s. 90, Applied:20 Feb 2006] [Section 3 Amended by No. 69 of 2013, Sched. 1, Applied:17 Feb 2014] [Section 3 Amended by No. 72 of 2005, s. 90, Applied:20 Feb 2006] [Section 3 Amended by No. 69 of 2013, Sched. 1, Applied:17 Feb 2014][Section 3 Amended by No. 21 of 2016, s. 6, Applied:11 Jul 2016] controlling authority has the same meaning as in the Mental Health Act 2013 ;Director means the Director of Corrective Services;[Section 3 Amended by No. 72 of 2005, s. 90, Applied:20 Feb 2006] forensic order means a restriction order or supervision order;[Section 3 Amended by No. 72 of 2005, s. 90, Applied:20 Feb 2006] [Section 3 Amended by No. 69 of 2013, Sched. 1, Applied:17 Feb 2014]immediate family, in relation to a deceased victim, includes –[Section 3 Amended by No. 18 of 2021, s. 62, Applied:05 Nov 2021](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;[Section 3 Amended by No. 45 of 2003, Sched. 1, Applied:01 Jan 2004] next of kin of a person means a person's spouse, parents, children, any other person who is the primary carer of the person, a person who is in a caring relationship, within the meaning of the Relationships Act 2003 , with the person or any other class of person prescribed by the regulations as the next of kin of a person;[Section 3 Amended by No. 3 of 2010, Sched. 1, Applied:01 Jul 2010][Section 3 Amended by No. 3 of 2010, Sched. 1, Applied:01 Jul 2010] psychiatrist means a medical practitioner who –(a) is a Fellow of the Royal Australian and New Zealand College of Psychiatrists; or(b) holds specialist registration in the speciality of psychiatry; or(c) holds limited registration which enables the person to practise the speciality of psychiatry;regulations means regulations made and in force under this Act;[Section 3 Amended by No. 72 of 2005, s. 90, Applied:20 Feb 2006][Section 3 Amended by No. 72 of 2005, s. 90, Applied:20 Feb 2006] restriction order has the meaning given by section 24 ;[Section 3 Amended by No. 72 of 2005, s. 90, Applied:20 Feb 2006] [Section 3 Amended by No. 69 of 2013, Sched. 1, Applied:17 Feb 2014] secure mental health unit has the same meaning as in the Mental Health Act 2013 ;[Section 3 Amended by No. 45 of 2003, Sched. 1, Applied:01 Jan 2004][Section 3 Amended by No. 45 of 2003, Sched. 1, Applied:01 Jan 2004] spouse, in relation to a person, includes the person who is in a significant relationship, within the meaning of the Relationships Act 2003 , with that person;[Section 3 Amended by No. 72 of 2005, s. 90, Applied:20 Feb 2006][Section 3 Amended by No. 72 of 2005, s. 90, Applied:20 Feb 2006] supervision order has the meaning given by section 29A ;[Section 3 Amended by No. 69 of 2013, Sched. 1, Applied:17 Feb 2014] treatment order has the same meaning as in the Mental Health Act 2013 ;[Section 3 Amended by No. 18 of 2021, s. 62, Applied:05 Nov 2021] Tribunal means the Tasmanian Civil and Administrative Tribunal;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) [Section 4 Subsection (2) amended by No. 72 of 2005, s. 91, Applied:20 Feb 2006] The application of this Act extends to a restriction order and a supervision 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.[Section 6 Repealed by No. 72 of 2005, s. 92, Applied:20 Feb 2006] . . . . . . . . [Section 7 Repealed by No. 72 of 2005, s. 92, Applied:20 Feb 2006] . . . . . . . .
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) [Section 10 Subsection (2) amended by No. 13 of 2012, s. 25, Applied:30 May 2012] [Section 10 Subsection (2) substituted by No. 27 of 2020, s. 11, Applied:01 Jul 2021] If, at preliminary proceedings for an indictable offence, the question of a defendant's fitness to stand trial arises –(a) the question is to be reserved for determination by the Supreme Court; and(b) after the question is so determined –(i) the preliminary proceedings are to be completed in accordance with the relevant criminal procedures; and(ii) if appropriate, the Supreme Court may return the preliminary proceedings to the relevant court for completion.(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) [Section 12 Subsection (2) amended by No. 48 of 2003, Sched. 9, Applied:01 Jan 2006] The application of the Juries Act 2003 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) [Section 15 Subsection (4) amended by No. 48 of 2003, Sched. 9, Applied:01 Jan 2006] The application of the Juries Act 2003 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) [Section 17 Amended by No. 21 of 2016, s. 7, Applied:11 Jul 2016] . . . . . . . .(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) [Section 18 Subsection (2) substituted by No. 72 of 2005, s. 93, Applied:20 Feb 2006] If 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 a finding cannot be made that the defendant is not guilty of an offence, the court is to –(a) make a restriction order; or(b) release the defendant and make a supervision order; or(c) [Section 18 Subsection (2) amended by No. 69 of 2013, Sched. 1, Applied:17 Feb 2014] make a treatment order; or(d) [Section 18 Subsection (2) amended by No. 69 of 2013, Sched. 1, Applied:17 Feb 2014] . . . . . . . .(e) release the defendant on such conditions as the court considers appropriate; or(f) release the defendant unconditionally.(3) [Section 18 Subsection (3) inserted by No. 72 of 2005, s. 93, Applied:20 Feb 2006] Despite subsection (2) , only the Supreme Court may make a restriction order or supervision order under that subsection.(4) [Section 18 Subsection (4) inserted by No. 21 of 2016, s. 8, Applied:11 Jul 2016] A treatment order made under subsection (2)(c) , whether before or after the commencement of the Crimes (Miscellaneous Amendments) Act 2016, is taken to have been made under Division 2 of Part 3 of Chapter 2 of the Mental Health Act 2013 .
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
[Section 21 Substituted by No. 72 of 2005, s. 94, Applied:20 Feb 2006](1) 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 is to –(a) make a restriction order; or(b) release the defendant and make a supervision order; or(c) [Section 21 Subsection (1) amended by No. 69 of 2013, Sched. 1, Applied:17 Feb 2014] make a treatment order; or(d) [Section 21 Subsection (1) amended by No. 69 of 2013, Sched. 1, Applied:17 Feb 2014] . . . . . . . .(e) release the defendant on such conditions as the court considers appropriate; or(f) release the defendant unconditionally.(2) Despite subsection (1) , only the Supreme Court may make a restriction order or supervision order under that subsection.(3) [Section 21 Subsection (3) inserted by No. 21 of 2016, s. 9, Applied:11 Jul 2016] A treatment order made under subsection (1)(c) , whether before or after the commencement of the Crimes (Miscellaneous Amendments) Act 2016, is taken to have been made under Division 2 of Part 3 of Chapter 2 of the Mental Health Act 2013 .
PART 3A - Breach of Conditions on Release[Part 3A Inserted by No. 21 of 2016, s. 10, Applied:11 Jul 2016]
21A. Breach of conditions on release
[Section 21A Inserted by No. 72 of 2005, s. 94, Applied:20 Feb 2006] [Section 21A Substituted by No. 21 of 2016, s. 10, Applied:11 Jul 2016](1) If it appears that a person (the defendant) has breached the conditions on his or her release imposed under section 18(2)(e) or section 21(1)(e) , an application may be made to the court, which imposed the conditions, for an order under this section.(2) An application under subsection (1) may be made by any of the following:(a) an authorised person;(b) a police officer;(c) a prosecutor;(d) a probation officer, within the meaning of the Corrections Act 1997 ;(e) [Section 21A Subsection (2) amended by No. 4 of 2023, s. 13, Applied:25 Sep 2023] the Chief Psychiatrist.(3) A person making an application under subsection (1) must give notice of the application to the defendant.(4) The court may issue a warrant for the arrest of the defendant if –(a) the defendant fails to appear at the hearing of the application; or(b) the court is satisfied that reasonable efforts to give the defendant notice of the application have been made but those efforts have been unsuccessful.(5) If a court finds a defendant guilty of an offence punishable by imprisonment committed while the defendant was on release subject to conditions imposed under section 18(2)(e) or section 21(1)(e) (in this section called the new offence), a person referred to in subsection (2) –(a) may make an oral application to the court, while the defendant is before the court in relation to the new offence, for an order under this section; and(b) is to provide the defendant in writing with the grounds for the oral application, if directed to do so by the court.(6) If an application is made under subsection (5) to a court that is not the court that imposed the conditions on the defendant, the court hearing the application may do either of the following:(a) deal with the application under this section;(b) adjourn the application to the court that imposed the conditions and either grant the defendant bail or remand the defendant in custody.(7) If, on the hearing of an application under this section, the court is satisfied that the defendant has breached the conditions on his or her release, it may –(a) confirm the conditions as originally imposed; or(b) impose new conditions on the defendant; or(c) revoke the order imposing the conditions and deal with the defendant for the offence or offences in respect of which the order was made in any manner in which the court could deal with the defendant under section 18(2) or section 21(1) , as the case may be.(8) In determining how to deal with a defendant who is found to have breached the conditions of his or her release under this section, the court must take into account the extent to which the defendant had complied with the conditions before committing the breach.
PART 4 - Persons Liable to Forensic Orders and Treatment Orders[Part 4 Heading amended by No. 69 of 2013, Sched. 1, Applied:17 Feb 2014] [Part 4 Heading amended by No. 72 of 2005, s. 95, Applied:20 Feb 2006]
Division 1 - Interpretation
In this Part,[Section 22 Amended by No. 72 of 2005, s. 96, Applied:20 Feb 2006] [Section 22 Amended by No. 69 of 2013, Sched. 1, Applied:17 Feb 2014] defendant includes a person who is subject to a forensic order or treatment order.
Division 2 - . . . . . . . .[Division 2 of Part 4 Repealed by No. 72 of 2005, s. 97, Applied:20 Feb 2006] [Section 23 Repealed by No. 72 of 2005, s. 97, Applied:20 Feb 2006] . . . . . . . .
Division 3 - Restriction orders
[Section 24 Substituted by No. 72 of 2005, s. 98, Applied:20 Feb 2006] A restriction order is an order requiring the person to whom it applies to be admitted to and detained in a secure mental health unit until the order is discharged by the Supreme Court.[Section 25 Repealed by No. 72 of 2005, s. 98, Applied:20 Feb 2006] . . . . . . . .
26. Discharge of restriction orders
(1) [Section 26 Subsection (1) amended by No. 4 of 2023, s. 14, Applied:25 Sep 2023] [Section 26 Subsection (1) amended by No. 69 of 2013, Sched. 1, Applied:17 Feb 2014] [Section 26 Subsection (1) amended by No. 72 of 2005, s. 99, Applied:20 Feb 2006] A defendant subject to a restriction order, the Secretary of the responsible Department in relation to the Mental Health Act 2013 or the Chief Psychiatrist may apply to the Supreme Court for discharge of the restriction 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) [Section 26 Subsection (3) amended by No. 72 of 2005, s. 99, Applied:20 Feb 2006] an application is to be in writing with a copy served on the Director of Public Prosecutions and, if the defendant is not the applicant, on the defendant; 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) [Section 26 Subsection (3) amended by No. 72 of 2005, s. 99, Applied:20 Feb 2006] the defendant 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) [Section 26 Subsection (3) amended by No. 72 of 2005, s. 99, Applied:20 Feb 2006] [Section 26 Subsection (3) amended by No. 4 of 2023, s. 14, Applied:25 Sep 2023] the Court may order the Chief Psychiatrist or any other person or body to prepare and submit to the Court a report in respect of such matters relating to the defendant as the Court may specify.(4) [Section 26 Subsection (4) amended by No. 72 of 2005, s. 99, Applied:20 Feb 2006] A copy of a report prepared under subsection (3)(g) is to be provided to the applicant, the defendant and the Director of Public Prosecutions.
27. Powers of Supreme Court on discharge of restriction order
[Section 27 Substituted by No. 72 of 2005, s. 100, Applied:20 Feb 2006] If the Supreme Court discharges a restriction order, it may make any other order in respect of the defendant that it could have made under section 18(2) or 21 .[Section 28 Repealed by No. 72 of 2005, s. 100, Applied:20 Feb 2006] . . . . . . . .
Division 4 - Subsequent trial of person found unfit to stand trial
29. Subsequent fitness for trial of person subject to treatment order or forensic order
(1) [Section 29 Subsection (1) amended by No. 69 of 2013, Sched. 1, Applied:17 Feb 2014] [Section 29 Subsection (1) amended by No. 72 of 2005, s. 101, Applied:20 Feb 2006] [Section 29 Subsection (1) amended by No. 69 of 2013, Sched. 1, Applied:17 Feb 2014] [Section 29 Subsection (1) substituted by No. 4 of 2023, s. 15, Applied:25 Sep 2023] If –the Chief Psychiatrist 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 an order under section 18(2) in respect of the defendant; and(b) the Chief Psychiatrist is satisfied that the defendant has become fit to stand trial –(2) [Section 29 Subsection (2) amended by No. 72 of 2005, s. 101, Applied:20 Feb 2006] [Section 29 Subsection (2) omitted by No. 4 of 2023, s. 15, Applied:25 Sep 2023] . . . . . . . .(3) [Section 29 Subsection (3) amended by No. 4 of 2023, s. 15, Applied:25 Sep 2023] On receiving a notification under subsection (1) , 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.(3A) [Section 29 Subsection (3A) inserted by No. 72 of 2005, s. 101, Applied:20 Feb 2006] If the Attorney-General determines under subsection (3)(b) that no further proceedings are to be taken against the defendant, he or she is to –(a) [Section 29 Subsection (3A) amended by No. 69 of 2013, Sched. 1, Applied:17 Feb 2014] request the court before which the defendant was found to be unfit to stand trial to dismiss the proceedings against the defendant and discharge the treatment order, restriction order or supervision order; and(b) notify the following persons of that determination:(i) the defendant;(ii) [Section 29 Subsection (3A) amended by No. 69 of 2013, Sched. 1, Applied:17 Feb 2014] the controlling authority, within the meaning of the Mental Health Act 2013 , of the approved hospital in which the defendant is detained if the defendant is subject to a treatment order that requires the defendant to be detained in that hospital;(iii) [Section 29 Subsection (3A) amended by No. 69 of 2013, Sched. 1, Applied:17 Feb 2014] [Section 29 Subsection (3A) amended by No. 4 of 2023, s. 15, Applied:25 Sep 2023] the Chief Psychiatrist.(iv) [Section 29 Subsection (3A) amended by No. 69 of 2013, Sched. 1, Applied:17 Feb 2014] [Section 29 Subsection (3A) amended by No. 4 of 2023, s. 15, Applied:25 Sep 2023] . . . . . . . .(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) [Section 29 Subsection (5) amended by No. 69 of 2013, Sched. 1, Applied:17 Feb 2014] [Section 29 Subsection (5) amended by No. 72 of 2005, s. 101, Applied:20 Feb 2006] 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 or discharge the treatment order, restriction order or supervision order made under this Act.(6) [Section 29 Subsection (6) inserted by No. 72 of 2005, s. 101, Applied:20 Feb 2006] On receipt of a request from the Attorney-General under subsection (3A)(a) , the appropriate court must –(a) dismiss the proceedings against the defendant; and(b) [Section 29 Subsection (6) amended by No. 69 of 2013, Sched. 1, Applied:17 Feb 2014] revoke or discharge the treatment order, restriction order or supervision order.
Division 5 - Supervision orders
[Section 29A Inserted by No. 72 of 2005, s. 102, Applied:20 Feb 2006](1) [Section 29A Subsection (1) amended by No. 4 of 2023, s. 16, Applied:25 Sep 2023] A supervision order is an order releasing the person to whom it applies under the supervision of the Chief Psychiatrist and on such conditions as to the supervision of that person and such other conditions as the court considers appropriate.(2) Without limiting the conditions that may be specified in a supervision order, such conditions may include any one or more of the following conditions:(a) [Section 29A Subsection (2) amended by No. 4 of 2023, s. 16, Applied:25 Sep 2023] a condition requiring the defendant to take medication or submit to the administration of medical treatment as specified in the order or as determined by the Chief Psychiatrist;(b) [Section 29A Subsection (2) amended by No. 4 of 2023, s. 16, Applied:25 Sep 2023] a condition requiring the defendant to comply with any directions as to supervision given by the Chief Psychiatrist.(3) [Section 29A Subsection (3) amended by No. 4 of 2023, s. 16, Applied:25 Sep 2023] [Section 29A Subsection (3) amended by No. 18 of 2021, s. 63, Applied:05 Nov 2021] [Section 29A Subsection (3) amended by No. 69 of 2013, Sched. 1, Applied:17 Feb 2014] If a defendant who is subject to a supervision order notifies the person responsible for his or her medical treatment that he or she objects to taking medication or the administration of medical treatment as required by or under the order, that person or the Chief Psychiatrist is to notify the Tribunal, in writing, of that objection within 7 days.(4) [Section 29A Subsection (4) amended by No. 69 of 2013, Sched. 1, Applied:17 Feb 2014] Section 38 of the Guardianship and Administration Act 1995 and section 213 of the Mental Health Act 2013 do not apply in respect of the taking of medication by, or the administration of medical treatment to, a defendant if the defendant takes the medication or submits to the administration of the medical treatment in compliance with a supervision order even though the defendant objects to doing so.
30. Variation or revocation of supervision order
(1) [Section 30 Subsection (1) amended by No. 4 of 2023, s. 17, Applied:25 Sep 2023] [Section 30 Subsection (1) amended by No. 69 of 2013, Sched. 1, Applied:17 Feb 2014] [Section 30 Subsection (1) amended by No. 72 of 2005, s. 103, Applied:20 Feb 2006] At any time while a supervision order is in force, the Supreme Court may, on the application of the Secretary of the responsible Department in relation to the Mental Health Act 2013 , the Chief Psychiatrist, 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 Supreme Court might have made under section 18(2) or 21 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) [Section 30 Subsection (3) amended by No. 72 of 2005, s. 103, Applied:20 Feb 2006] If the Supreme 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 Supreme Court may direct on refusing the application.(4) [Section 30 Subsection (4) amended by No. 4 of 2023, s. 17, Applied:25 Sep 2023] [Section 30 Subsection (4) inserted by No. 72 of 2005, s. 103, Applied:20 Feb 2006] Before determining an application, the Supreme Court may order the Chief Psychiatrist, the controlling authority of a secure mental health unit or any other person or body to provide a report in respect of the matters specified in the order.(5) [Section 30 Subsection (5) amended by No. 4 of 2023, s. 17, Applied:25 Sep 2023] [Section 30 Subsection (5) inserted by No. 72 of 2005, s. 103, Applied:20 Feb 2006] For the purposes of a report, the defendant is to make himself or herself available for examination as required by the Chief Psychiatrist, the controlling authority of a secure mental health unit or the person or body providing the report.(6) [Section 30 Subsection (6) amended by No. 4 of 2023, s. 17, Applied:25 Sep 2023] [Section 30 Subsection (6) inserted by No. 72 of 2005, s. 103, Applied:20 Feb 2006] The Chief Psychiatrist, the controlling authority of a secure mental health unit or the person or body who provides a report is to provide a copy of it to the applicant, defendant and Director of Public Prosecutions as soon as practicable.(7) [Section 30 Subsection (7) inserted by No. 72 of 2005, s. 103, Applied:20 Feb 2006] For the purposes of a hearing by the Supreme Court for the variation or revocation of a supervision order –(a) an application is to be in writing with a copy served on the Director of Public Prosecutions and, if the defendant is not the applicant, on the defendant; 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 defendant may be present at the hearing of the application unless the Court makes an order to the contrary; and(d) the applicant, the defendant and the Director of Public Prosecutions may call evidence in support of, or in opposition to, the application; and(e) if a party causes a report to be prepared relating to the application and intends to tender the report as evidence, that party must provide each other party with a copy of the report; and(f) if a party puts any such report in evidence –(i) each other party is entitled to cross-examine the person who made the report; and(ii) the party who put the report in evidence may, after any such cross-examination, examine the person making the report by way of reply; and(g) [Section 30 Subsection (7) amended by No. 4 of 2023, s. 17, Applied:25 Sep 2023] the Court may order the Chief Psychiatrist or any other person or body to prepare and submit to the Court a report in respect of such matters relating to the defendant as the Court may specify.
31. Apprehension of defendant under supervision order
[Section 31 Substituted by No. 72 of 2005, s. 104, Applied:20 Feb 2006](1) In this section –prescribed person means –(a) [Section 31 Subsection (1) amended by No. 4 of 2023, s. 18, Applied:25 Sep 2023] the Chief Psychiatrist; or(b) a person who administers, or assists in the administration of, medical treatment to the defendant under a supervision order; or(c) [Section 31 Subsection (1) amended by No. 4 of 2023, s. 18, Applied:25 Sep 2023] a person who is authorised by the Chief Psychiatrist to supervise, wholly or partly, the administration of a supervision order in respect of the defendant; or(d) an authorised person; or(e) [Section 31 Subsection (1) amended by No. 69 of 2013, Sched. 1, Applied:17 Feb 2014] a mental health officer within the meaning of the Mental Health Act 2013 ; or(f) a police officer.(2) A prescribed person may apprehend a defendant who is subject to a supervision order if the prescribed person believes on reasonable grounds –(a) that –(i) the defendant has contravened, or is likely to contravene, the supervision order; or(ii) there has been, or is likely to be, a serious deterioration in the defendant's mental health; and(b) that, because of the breach or likely breach of the supervision order or the deterioration or likely deterioration in the defendant's mental health, there is a risk that the defendant will harm himself, herself or another person.(3) As soon as practicable after apprehending a defendant under subsection (2) , the prescribed person is to –(a) [Section 31 Subsection (3) amended by No. 4 of 2023, s. 18, Applied:25 Sep 2023] notify the Chief Psychiatrist of the apprehension; and(b) [Section 31 Subsection (3) amended by No. 21 of 2016, s. 11, Applied:11 Jul 2016] take the defendant to –(i) an approved hospital; or(ii) a secure mental health unit if the prescribed person is of the opinion that the defendant should be taken to a secure mental health unit for treatment or for the protection of the defendant or any other person.(4) [Section 31 Subsection (4) amended by No. 21 of 2016, s. 11, Applied:11 Jul 2016] [Section 31 Subsection (4) amended by No. 69 of 2013, Sched. 1, Applied:17 Feb 2014] If after apprehending a defendant under subsection (2) the prescribed person is of the opinion that the defendant should be taken to a secure mental health unit but it is not possible or practicable to do so immediately, the prescribed person may take the defendant to an approved hospital where he or she is to be admitted and treated as an involuntary patient, within the meaning of the Mental Health Act 2013 , until such time as he or she can be transferred to a secure mental health unit.(5) When apprehending a defendant, taking him or her to a secure mental health unit or an approved hospital or transferring him or her to a secure mental health unit under this section, a prescribed person may –(a) be assisted by such persons as he or she considers appropriate; and(b) use such restraint and force as the prescribed person believes appropriate in the circumstances; and(c) enter, without warrant, any premises or part of premises in which the prescribed person reasonably believes the defendant is present.(5A) [Section 31 Subsection (5A) inserted by No. 21 of 2016, s. 11, Applied:11 Jul 2016] The custody and escort provisions, within the meaning of the Mental Health Act 2013 , apply in respect of the taking of a defendant to an approved hospital or a secure mental health unit under this section.(6) A secure mental health unit to which a defendant is taken under subsection (3) is to admit the defendant and may detain the defendant in the unit –(a) for a period not exceeding 24 hours; and(b) [Section 31 Subsection (6) amended by No. 4 of 2023, s. 18, Applied:25 Sep 2023] if the Chief Psychiatrist authorises it, for one further period not exceeding 72 hours; and(c) [Section 31 Subsection (6) amended by No. 69 of 2013, Sched. 1, Applied:17 Feb 2014] [Section 31 Subsection (6) amended by No. 18 of 2021, s. 64, Applied:05 Nov 2021] if the Tribunal authorises it, for one or more further periods each of a length to be determined by that Tribunal.(7) [Section 31 Subsection (7) amended by No. 69 of 2013, Sched. 1, Applied:17 Feb 2014] Despite subsection (6) , if –the defendant may be detained in the secure mental health unit until the application is determined by that Tribunal.(a) [Section 31 Subsection (7) amended by No. 69 of 2013, Sched. 1, Applied:17 Feb 2014] [Section 31 Subsection (7) amended by No. 18 of 2021, s. 64, Applied:05 Nov 2021] within a period referred to in paragraph (a) or (b) of that subsection an application is made to the Tribunal for an extension of the period for which a defendant may be detained under that subsection; and(b) [Section 31 Subsection (7) amended by No. 69 of 2013, Sched. 1, Applied:17 Feb 2014] [Section 31 Subsection (7) amended by No. 18 of 2021, s. 64, Applied:05 Nov 2021] a member of the Tribunal authorises it –(8) Despite subsection (6) , if within any period for which a defendant may be detained under that subsection an application is made to the Supreme Court under section 30 to vary or revoke the supervision order in respect of the defendant, the defendant may be detained in a secure mental health unit until the Court has determined the application.(9) While a defendant is being detained in an approved hospital or secure mental health unit under this section, the supervision order is suspended.
31A. Suspension of supervision order while defendant imprisoned
[Section 31A Inserted by No. 72 of 2005, s. 104, Applied:20 Feb 2006] If a defendant is sentenced to a term of imprisonment for an offence while subject to a supervision order, the supervision order is suspended while the defendant is in prison serving the term of imprisonment.
Division 5A - . . . . . . . .[Division 5A of Part 4 Repealed by No. 69 of 2013, Sched. 1, Applied:17 Feb 2014] [Section 31B of Part 4 Inserted by No. 72 of 2005, s. 105, Applied:20 Feb 2006] [Section 31B Repealed by No. 69 of 2013, Sched. 1, Applied:17 Feb 2014] . . . . . . . . [Section 31C of Part 4 Inserted by No. 72 of 2005, s. 105, Applied:20 Feb 2006] [Section 31C Repealed by No. 69 of 2013, Sched. 1, Applied:17 Feb 2014] . . . . . . . .
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
[Section 34 Substituted by No. 72 of 2005, s. 106, Applied:20 Feb 2006] A court is to apply, where appropriate, 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 when determining –(a) which order to make under section 18(2) or 21(1) or this Part; or(b) whether to discharge or vary such an order; or(c) the conditions of such an 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) [Section 35 Subsection (2) amended by No. 72 of 2005, s. 107, Applied:20 Feb 2006] A court may not discharge a restriction order, release a defendant under section 18(2) or 21(1) or this Part or significantly reduce the degree of supervision to which a defendant is subject unless the court –(a) [Section 35 Subsection (2) amended by No. 72 of 2005, s. 107, Applied:20 Feb 2006] [Section 35 Subsection (2) amended by No. 3 of 2010, Sched. 1, Applied:01 Jul 2010] [Section 35 Subsection (2) amended by No. 21 of 2016, s. 12, Applied:11 Jul 2016] [Section 35 Subsection (2) amended by No. 4 of 2023, s. 19, Applied:25 Sep 2023] has considered the reports of the Chief Psychiatrist, or a medical practitioner nominated by the Chief Psychiatrist, and one other expert, who may or may not be a medical practitioner, 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.(4) [Section 35 Subsection (4) inserted by No. 3 of 2010, Sched. 1, Applied:01 Jul 2010] In this section –medical practitioner means a person who –(a) is a psychiatrist; or(b) [Section 35 Subsection (4) amended by No. 4 of 2023, s. 19, Applied:25 Sep 2023] is a medical practitioner approved by the Chief Psychiatrist as holding the requisite training and experience to provide medico-legal reports to the court.
[Section 35A Inserted by No. 21 of 2016, s. 13, Applied:11 Jul 2016] A court may make any interim order it considers appropriate in the circumstances.
Division 7 - Appeals to Court of Criminal Appeal
(1) In this section,decision includes a determination, a declaration and a finding.(2) [Section 36 Subsection (2) amended by No. 69 of 2013, Sched. 1, Applied:17 Feb 2014] [Section 36 Subsection (2) amended by No. 72 of 2005, s. 108, Applied:20 Feb 2006] An appeal lies to the Court of Criminal Appeal at the suit of the Attorney-General, the Secretary of the responsible Department in relation to the Mental Health Act 2013 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 7A - Referral of forensic orders
36A. Referral of forensic order to Supreme Court
[Section 36A of Part 4 Inserted by No. 21 of 2016, s. 14, Applied:11 Jul 2016](1) If a magistrate is of the opinion, after taking into account the matters required to be considered in determining the order to be made, that a forensic order should be made in respect of a defendant, the magistrate may refer the matter to the Supreme Court for determination.(2) On the referral of a matter to the Supreme Court under subsection (1) , the Supreme Court –(a) must enquire into the circumstances of the case; and(b) has the same powers to deal with the defendant as if the defendant had been dealt with in the Supreme Court.
Division 8 - Review of forensic orders[Division 8 of Part 4 Heading amended by No. 72 of 2005, s. 109, Applied:20 Feb 2006]
37. Review of persons detained under forensic orders
[Section 37 Substituted by No. 72 of 2005, s. 110, Applied:20 Feb 2006](1) [Section 37 Subsection (1) amended by No. 18 of 2021, s. 65, Applied:05 Nov 2021] [Section 37 Subsection (1) amended by No. 69 of 2013, Sched. 1, Applied:17 Feb 2014] A forensic order is to be reviewed under the Mental Health Act 2013 by the Tribunal within 12 months after the order was made and at least once in each period of 12 months afterwards.(2) [Section 37 Subsection (2) amended by No. 18 of 2021, s. 65, Applied:05 Nov 2021] [Section 37 Subsection (2) amended by No. 69 of 2013, Sched. 1, Applied:17 Feb 2014] In reviewing a forensic order, the Tribunal is to apply the principle in section 34 and to have regard to the matters set out in section 35(1) .(3) [Section 37 Subsection (3) amended by No. 18 of 2021, s. 65, Applied:05 Nov 2021] [Section 37 Subsection (3) amended by No. 69 of 2013, Sched. 1, Applied:17 Feb 2014] If the Tribunal, on review, determines that a forensic order is no longer warranted or that the conditions of the order are now inappropriate –(a) the Tribunal must issue the defendant with a certificate to that effect; and(b) the defendant may apply immediately, despite any other provision of this Act, to the Supreme Court for discharge, revocation or variation of the forensic order.(4) [Section 37 Subsection (4) amended by No. 18 of 2021, s. 65, Applied:05 Nov 2021] [Section 37 Subsection (4) amended by No. 69 of 2013, Sched. 1, Applied:17 Feb 2014] If the Tribunal issues a certificate in respect of the discharge of a restriction order, the certificate may include the recommendation of the Tribunal that, should the order be discharged –(a) [Section 37 Subsection (4) amended by No. 69 of 2013, Sched. 1, Applied:17 Feb 2014] a supervision order or treatment order be made in respect of the defendant; or(b) the defendant be released either unconditionally or on the conditions specified in the recommendation.(5) [Section 37 Subsection (5) amended by No. 18 of 2021, s. 65, Applied:05 Nov 2021] [Section 37 Subsection (5) amended by No. 69 of 2013, Sched. 1, Applied:17 Feb 2014] If the Tribunal issues a certificate in respect of the revocation of a supervision order, the certificate may include the recommendation of the Tribunal that, should the order be revoked –(a) [Section 37 Subsection (5) amended by No. 69 of 2013, Sched. 1, Applied:17 Feb 2014] a treatment order be made in respect of the defendant; or(b) the defendant be released either unconditionally or on the conditions specified in the recommendation.(6) [Section 37 Subsection (6) amended by No. 18 of 2021, s. 65, Applied:05 Nov 2021] [Section 37 Subsection (6) amended by No. 69 of 2013, Sched. 1, Applied:17 Feb 2014] If the Tribunal, on review, issues a certificate in respect of the variation of the conditions of a supervision order, the certificate may include the recommendations of the Tribunal as to what conditions should be included in the order.(7) [Section 37 Subsection (7) amended by No. 18 of 2021, s. 65, Applied:05 Nov 2021] [Section 37 Subsection (7) amended by No. 69 of 2013, Sched. 1, Applied:17 Feb 2014] If the Tribunal, on review, determines that a supervision order should be revoked and that, instead, a restriction order should be made in respect of the defendant, the Tribunal is to –(a) [Section 37 Subsection (7) amended by No. 69 of 2013, Sched. 1, Applied:17 Feb 2014] recommend to the Secretary of the responsible Department in relation to the Mental Health Act 2013 that he or she make an application under section 30(1) for the revocation of the supervision order and the making of the restriction order; and(b) provide a copy of that recommendation to the defendant.
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) [Section 39 Subsection (1) amended by No. 72 of 2005, s. 111, Applied:20 Feb 2006] admit the defendant to bail –(i) on condition that he or she will appear subsequently for the purposes of the investigation; and(ii) on any other condition that the court considers appropriate; or(b) [Section 39 Subsection (1) amended by No. 72 of 2005, s. 111, Applied:20 Feb 2006] if the court considers that it would not be appropriate to admit the defendant to bail –(i) remand the defendant in custody; or(ii) order that the defendant be detained in a secure mental health unit; or(iii) make any other order that the court thinks appropriate for the custody or detention of the defendant.(c) [Section 39 Subsection (1) amended by No. 72 of 2005, s. 111, Applied:20 Feb 2006] . . . . . . . .(d) [Section 39 Subsection (1) amended by No. 72 of 2005, s. 111, Applied:20 Feb 2006] . . . . . . . .(1A) [Section 39 Subsection (1A) inserted by No. 72 of 2005, s. 111, Applied:20 Feb 2006] A court may only make an order that the defendant be detained in a secure mental health unit if –(a) [Section 39 Subsection (1A) amended by No. 69 of 2013, Sched. 1, Applied:17 Feb 2014] the defendant appears to be suffering from a mental illness within the meaning of the Mental Health Act 2013 ; and(b) the court considers that the defendant should be admitted to a secure mental health unit for his or her own health or safety or for the protection of others; and(c) [Section 39 Subsection (1A) amended by No. 4 of 2023, s. 20, Applied:25 Sep 2023] the Chief Psychiatrist has provided a report to the effect that –(i) the admission of the defendant to the secure mental health unit is necessary for his or her care or treatment; and(ii) adequate facilities and staff exist at the secure mental health unit for the appropriate care and treatment of the defendant; and(iii) in the case of a defendant who has not attained the age of 18 years, the secure mental health unit is the most appropriate place available to accommodate him or her in the circumstances having regard to the objectives and general principles set out in sections 4 and 5 of the Youth Justice Act 1997 .(1B) [Section 39 Subsection (1B) inserted by No. 72 of 2005, s. 111, Applied:20 Feb 2006] When making an order under subsection (1) , the court may make any other order it considers appropriate including, but not limited to –(a) an order requiring the production of a report in relation to the defendant's fitness to stand trial and his or her medical, psychological or psychiatric condition; and(b) an order requiring the defendant to submit to an assessment for the purposes of a report referred to in paragraph (a) ; and(c) an order giving directions in relation to the nature and means of obtaining the assessment referred to in paragraph (b) ; and(d) an order allowing the person who is required to produce a report access to the defendant's medical records with or without the defendant's consent.(1C) [Section 39 Subsection (1C) inserted by No. 72 of 2005, s. 111, Applied:20 Feb 2006] If the court under this section orders the production of a report of any kind in relation to the defendant, the person producing the report is to provide a copy of it to both the defendant and prosecutor unless the court orders otherwise.(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 –
39A. Limitation on making certain orders in respect of youth
[Section 39A Amended by No. 4 of 2023, s. 21, Applied:25 Sep 2023] [Section 39A Inserted by No. 72 of 2005, s. 112, Applied:20 Feb 2006] A court may not make a restriction order or any other order under this Act that commits a person who has not attained the age of 18 years to a secure mental health unit unless the court has received a report from the Chief Psychiatrist to the effect that –(a) adequate facilities and staff exist at the secure mental health unit for the appropriate care and treatment of the person; and(b) the secure mental health unit is the most appropriate place available to accommodate the youth in the circumstances.
39B. Report of Chief Psychiatrist
[Section 39B Inserted by No. 72 of 2005, s. 112, Applied:20 Feb 2006](1) In this section –defendant includes a person who is subject to a restriction order or any other order under this Act that commits a person to, or otherwise requires the detention of a person in, a secure mental health unit.(2) [Section 39B Subsection (2) amended by No. 4 of 2023, s. 22, Applied:25 Sep 2023] If a court requires a report from the Chief Psychiatrist or is provided with a report by the Chief Psychiatrist in relation to a defendant, the court may make such orders as to the distribution and security of the report provided as it considers necessary or appropriate.(3) [Section 39B Subsection (3) amended by No. 4 of 2023, s. 22, Applied:25 Sep 2023] Unless the court orders otherwise, the Chief Psychiatrist must give, as soon as practicable, a copy of any report referred to in subsection (2) to –(a) the prosecutor; and(b) [Section 39B Subsection (3) amended by No. 66 of 2007, Sched. 1, Applied:31 Dec 2008] the Australian legal practitioner representing the defendant or, if the defendant is unrepresented, the defendant.(4) [Section 39B Subsection (4) amended by No. 4 of 2023, s. 22, Applied:25 Sep 2023] The prosecution or the defence may dispute the whole or any part of the report of the Chief Psychiatrist.(5) [Section 39B Subsection (5) amended by No. 4 of 2023, s. 22, Applied:25 Sep 2023] If the whole or any part of the report of the Chief Psychiatrist is disputed, the court must not take into consideration the report or part in dispute unless the party disputing the report or part has had the opportunity –(a) to lead evidence on the disputed matters; and(b) [Section 39B Subsection (5) amended by No. 4 of 2023, s. 22, Applied:25 Sep 2023] to cross-examine on the disputed matters the Chief Psychiatrist or, if the Chief Psychiatrist has delegated his or her function of writing the report, the author of the report.
39C. Custody on making of order committing defendant to secure mental health unit
[Section 39C Inserted by No. 72 of 2005, s. 112, Applied:20 Feb 2006](1) In this section –defendant means a person who is subject to a restriction order or any other order under this Act that commits a person to, or otherwise requires the detention of a person in, a secure mental health unit;specified means specified in a restriction order or any other order under this Act that commits a person to, or otherwise requires the detention of a person in, a secure mental health unit.(2) If a court makes a restriction order or any other order under this Act that commits a defendant to, or otherwise requires the detention of a person in, a secure mental health unit –(a) the court is to specify in the order that the specified person, or a person of the specified class of person, is to be responsible for taking the defendant to the specified secure mental health unit; and(b) the court may specify in the order that the specified person or another specified person, or a person of the specified class or another specified class of person, is to be responsible for bringing the defendant from the specified secure mental health unit before the court in connection with the exercise by the court of its powers under this Act.(3) [Section 39C Subsection (3) amended by No. 4 of 2023, s. 23, Applied:25 Sep 2023] A copy of the restriction order or other order that commits a defendant to, or otherwise requires the detention of the defendant in, a secure mental health unit and any report of the Chief Psychiatrist or other medical practitioner relevant to the decision of the Court to make the order are to accompany the defendant to the specified secure mental health unit.(4) While a defendant is the responsibility of a person as specified in a restriction order or other order that commits the defendant to, or otherwise requires the detention of the defendant in, a secure mental health unit –(a) that person has the custody of the defendant; and(b) the defendant is taken to be in detention for the purposes of section 41 .
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) [Section 41 Subsection (1) amended by No. 35 of 2002, s. 6, Applied:14 Nov 2002] If a person who is committed to detention pursuant to a restriction order made under this Act or the Sentencing Act 1997 –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 –(1A) [Section 41 Subsection (1A) inserted by No. 35 of 2002, s. 6, Applied:14 Nov 2002] If a judge of a court by which a person is committed to detention under this Act is satisfied that there are proper grounds to suspect that the person –the judge may issue a warrant for the arrest of the person and for his or her return to the place of detention.(a) has escaped from the detention or is absent, without proper authority, from the place of detention; and(b) has left the State –(1B) [Section 41 Subsection (1B) amended by No. 69 of 2013, Sched. 1, Applied:17 Feb 2014] [Section 41 Subsection (1B) amended by No. 72 of 2005, s. 113, Applied:20 Feb 2006] [Section 41 Subsection (1B) inserted by No. 35 of 2002, s. 6, Applied:14 Nov 2002] If a judge or magistrate of a court by which a person is made the subject of a treatment order is satisfied that there are proper grounds to suspect that the person –the judge or magistrate may issue a warrant for the arrest of the person and for his or her return to the approved hospital.(a) [Section 41 Subsection (1B) amended by No. 72 of 2005, s. 113, Applied:20 Feb 2006] has escaped or is absent without leave of absence from an approved hospital; and(b) has left the State –(2) [Section 41 Subsection (2) amended by No. 72 of 2005, s. 113, Applied:20 Feb 2006] [Section 41 Subsection (2) amended by No. 35 of 2002, s. 6, Applied:14 Nov 2002] If a judge of a court by which a person is released under a supervision order is satisfied that there are proper grounds to suspect that the person has contravened or failed to comply with a condition of the order and has left the State, the judge may issue a warrant for the arrest of the person and for his or her return to the court.
[Section 41A Amended by No. 4 of 2023, s. 24, Applied:25 Sep 2023] [Section 41A Inserted by No. 72 of 2005, s. 114, Applied:20 Feb 2006] [Section 41A Substituted by No. 69 of 2013, Sched. 1, Applied:17 Feb 2014] The Chief Psychiatrist may authorise a person, or a member of a class of persons, for the purposes of any or all of the provisions of this Act as may be specified in the authorisation.
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.
42A. Provision of reports to certain persons
[Section 42A Inserted by No. 72 of 2005, s. 115, Applied:20 Feb 2006](1) In this section –[Section 42A Subsection (1) amended by No. 69 of 2013, Sched. 1, Applied:17 Feb 2014] defendant includes a person who is subject to a forensic order or a treatment order.(2) On the application of any of the following persons, that person may be provided with a copy of any report in respect of a defendant which is provided to a court under this Act:(a) the controlling authority of a secure mental health unit if the defendant is admitted to the secure mental health unit;(b) [Section 42A Subsection (2) amended by No. 4 of 2023, s. 25, Applied:25 Sep 2023] the Chief Psychiatrist;(ba) [Section 42A Subsection (2) amended by No. 69 of 2013, Sched. 1, Applied:17 Feb 2014] [Section 42A Subsection (2) amended by No. 4 of 2023, s. 25, Applied:25 Sep 2023] . . . . . . . .(c) the Director if the defendant is remanded to a prison;(d) the controlling authority of an approved hospital if the defendant is admitted to the approved hospital;(e) [Section 42A Subsection (2) amended by No. 69 of 2013, Sched. 1, Applied:17 Feb 2014] the Secretary of the responsible Department in relation to the Mental Health Act 2013 if a treatment order has been made in respect of the defendant.
[Section 43 Substituted by No. 72 of 2005, s. 116, Applied:20 Feb 2006](1) The Governor may make regulations for the purposes of this Act.(2) The regulations may contain provisions of a savings or transitional nature consequent on the enactment of any Act that amends this Act.(3) Regulations made under subsection (2) may take effect on the day on which the Act amending this Act commences or a later day as specified in the regulations, whether the day so specified is before, on or after the day on which the regulations are made.
44. Savings and transitional provisions consequent on the enactment of the Mental Health Amendment (Secure Mental Health Unit) Act 2005
[Section 44 Substituted by No. 72 of 2005, s. 116, Applied:20 Feb 2006](1) In this section –commencement day means the day on which the Mental Health Amendment (Secure Mental Health Unit) Act 2005 commences;former Act means this Act as in force immediately before the commencement day.(2) Where appropriate, an order made under the former Act that is in force immediately before the commencement day continues in effect in accordance with its terms and is taken to have been made under this Act.(3) A supervision order made under the former Act by a court other than the Supreme Court and in force immediately before the commencement day is taken to have been made by the Supreme Court under this Act.(4) The Forensic Tribunal is to review a restriction order or supervision order made under the former Act under section 37 but the first review is to be undertaken at a time to be determined by the Forensic Tribunal.(5) For the purposes of subsection (4) , the Forensic Tribunal is not limited to determining, for the undertaking of the first review of the restriction order or supervision order, a time that is within the period of 12 months commencing on the commencement day.
44A. Transitional provision on commencement of Mental Health Act 2013
[Section 44A Inserted by No. 69 of 2013, Sched. 1, Applied:17 Feb 2014] A continuing care order or a community treatment order made under this Act, and in force immediately before the day on which all of the provisions of the Mental Health Act 2013 commence, continues in effect after that day as if the order were a treatment order made under the Mental Health Act 2013 .
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[Part 1 of Schedule 1 Substituted by No. 61 of 1999, Sched. 1, Applied:24 Nov 1999]
"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 disclose anything about the jury's deliberations. So help you God."
PART 2 - Affirmation[Part 2 of Schedule 1 Substituted by No. 61 of 1999, Sched. 1, Applied:24 Nov 1999]
"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 disclose anything about the jury's deliberations."