1939
1939
1990-09-03
act
publicgeneral
act.reprint
act-1987-048
allinforce
1990-09-03
act-1990-011
none
act-1939-019
07a9422a-4dbc-4cb1-9d3b-93bee5fd707a
522d7fb5-0101-4f02-ba55-01266c3dba46
Repeal:
The Act was to be repealed by Sch 1 to the
Miscellaneous Acts (Mental Health) Repeal and Amendment Act
1983 No 181 but was repealed by Sch 1 to the Miscellaneous
Acts (Mental Health) Repeal and Amendment Act 1990 No 11
with effect from 3.9.1990.
An Act to make provision for the special care and
treatment of mentally defective prisoners; to amend the Prisons Act
1899 and certain other Acts; and for purposes connected
therewith.
1Name of Act and
commencement
(1)
This Act may be cited as the Mental
Defectives (Convicted Persons) Act
1939.
(2)
This Act shall commence on a day to be appointed
by the Governor and notified by proclamation published in the
Gazette.
2Interpretation
In this Act, unless the subject-matter or context
otherwise requires:
Convicted
prisoner means any prisoner undergoing imprisonment for any
offence included in the Schedule to this Act.
Inspector-General means the
Inspector-General of Mental Hospitals and includes the Deputy
Inspector-General.
Institution means a place appointed
as an institution pursuant to this Act.
Mental
defectiveness means a condition of arrested or incomplete
development or of degeneration of mind from whatsoever cause
arising.
Mentally
defective person includes a convicted prisoner not being an
insane person within the meaning of the Lunacy Act of
1898, in whom there exists mental defectiveness so
pronounced that he requires supervision and control for his own protection, or
for the protection of others.
Patient means a person detained in
an institution in accordance with the provisions of this Act.
Prescribed means prescribed by this
Act or by any regulations made thereunder.
Prison means a prison within the
meaning of the Prisons Act
1899.
s 2: Am 1982 No 168,
Sch 1.
3Mentally defective persons to
be reported etc
(1)
Where it appears to any court before which a
person is convicted and sentenced in respect of any offence included in the
Schedule to this Act that such person is a mentally defective person, the
judge or magistrate of such court shall forthwith report the case to the
Minister accordingly.
(2)
It shall be the duty of the governor or
officer-in-charge of any prison to inform the visiting surgeon if it appears
to him that any convicted prisoner is apparently a mentally defective person.
The visiting surgeon shall thereupon examine such person, and, if upon such
examination the visiting surgeon is of opinion that the prisoner is a mentally
defective person he shall so inform the Comptroller-General of Prisons in
writing setting out the grounds of such opinion.
Upon receipt of any such intimation or upon his
own initiative the Comptroller-General shall report the case to the Minister,
in writing, setting out the reasons for this belief.
(3)
The Minister, upon the receipt of any such
report, shall thereupon request the Inspector-General to cause any such
prisoner to be examined by two legally qualified medical practitioners who
shall separately, and apart from each other, examine and report to the
Inspector-General in accordance with the form prescribed as to the mental
condition of the person so examined.
(4)
The Inspector-General shall thereupon transmit
such reports to the Minister, who may direct that such prisoner be brought
before a magistrate for inquiry into his condition.
4Magistrate to conduct
inquiry
(1)
The magistrate before whom such prisoner is
brought in accordance with the Minister's directions may examine him at any
convenient place and shall call to his assistance the medical practitioners
who have reported upon the prisoner in accordance with section three of this
Act.
For the purposes of this section the magistrate
shall have power to summon and examine witnesses on oath and to exercise in
this behalf all the authority conferred by the Justices Act
1902 upon a magistrate exercising summary
jurisdiction.
(2)
At every such inquiry the prisoner shall have the
right of being heard and of calling evidence on his own behalf and the right
of examining and cross-examining witnesses personally or by his counsel or
attorney, and unless arrangements in this regard are made by the prisoner or
his relatives or friends, legal assistance for such prisoner shall be provided
at the expense of the Crown.
(3)
If upon such examination such magistrate is
satisfied that such prisoner is a mentally defective person within the meaning
of this Act, he may order that the prisoner be detained in an institution
during the Governor’s pleasure.
The period of such detention shall run
concurrently with but may exceed any term of imprisonment, penal servitude, or
detention to which the prisoner has been sentenced.
(4)
Any order under this section that a prisoner be
detained in an institution shall be sufficient authority to the
Comptroller-General of Prisons to remove the prisoner to such institution,
there to be detained in pursuance of such order, subject to the provisions of
this Act.
(5)
Any prisoner against whom an order has been made
under this section may in the manner prescribed by the Justices Act 1902 appeal therefrom to a
court of quarter sessions, but the notice of appeal shall not suspend the
operation of the order of the magistrate.
The court of quarter sessions hearing the appeal
may, by its order, confirm, set aside, or vary the order appealed from, and
may exercise all the powers conferred upon a court of quarter sessions in the
hearing of an appeal against the adjudication of a justice under the
provisions of Division 4 of Part 5 of the Justices Act
1902.
(6)
A prisoner may appeal to a judge of the Supreme
Court against an order made by a court of quarter sessions pursuant to
subsection five of this section.
Such appeal shall be in the nature of a rehearing
and shall be made in accordance with rules of court.
The judge hearing such appeal may by his order
confirm, set aside, or vary the order appealed from.
(7)
At an inquiry before a magistrate or at the
hearing of any appeal, the magistrate, court or judge may order that any
persons not directly interested in the case shall be excluded from the
court-room or place of hearing, unless the prisoner elects that the inquiry or
hearing shall be open to the public.
No person shall publish a report or account of
any such proceedings, when such proceedings shall have been heard in
private.
Any person contravening the provisions of this
section shall be liable on summary conviction before a magistrate to a penalty
not exceeding one hundred dollars.
5Discharge from
institution
(a)
Where it appears from medical or other evidence
that it is no longer necessary in the interests of the patient or of the
general public that he should be further detained in an institution,
or
(b)
where application is made by any relative or
friend of a patient that he be delivered over to the custody and care of such
relative or friend, and satisfactory evidence is furnished that such relative
or friend is a suitable person to undertake the custody and care of the
patient and is financially in a position to provide for his
welfare,
the Minister may recommend to the Governor that such
patient be discharged from such institution subject to such conditions as the
Minister may think fit to impose.
6Return to
institution
(1)
If it be made to appear to any magistrate on the
information on oath of a member of the police force of or above the rank of
sergeant who has reasonable cause to suspect that a person discharged under
the provisions of section five of this Act has committed a breach of any of
the conditions of his discharge, or that in the interests of the person so
discharged, or of the public, it is desirable that any such person should be
returned to an institution, such magistrate may issue his warrant for the
apprehension of such person, and may therein and thereby direct that such
person be apprehended and brought before a magistrate, who shall under such
circumstances have all the powers conferred by section four of this
Act.
(2)
Any member of the police force may apprehend any
person for whose apprehension any such warrant has been issued and deliver him
according to the tenor thereof.
(3)
The superintendent or other officer-in-charge of
any institution shall forthwith report to the Minister when any such person
has been returned to an institution.
(4)
Where any person is brought before a magistrate
in pursuance of this section such person shall have the same rights as a
prisoner brought before a magistrate in pursuance of section four of this Act,
including the same rights of appeal.
7Institution to be
appointed
The Governor may, by notification in the Gazette,
appoint any place to be an institution, and in and by such notification may
assign any name to such institution, which shall be under the administrative
control of the Comptroller-General of Prisons.
8Access by
Inspector-General
The Inspector-General and his duly authorised
officers shall at all hours have access to such
institution.
9Insane
prisoner
If any person while an inmate of an institution
appears to be insane, the Comptroller-General of Prisons shall direct that
such person be placed under observation either in such institution or in the
reception-house, under the Lunacy Act of
1898.
The Minister may, upon receipt of certificates of
two medical practitioners in the form of Schedule Two of the Lunacy Act of
1898, accompanied by a statement of particulars in the
form of Schedule Sixteen of that Act, direct by order under his hand in
accordance with Schedule Seventeen of that Act, that such person be removed to
and kept in a mental hospital, and the provisions of the said Lunacy Act of
1898 as amended by subsequent Acts shall thereafter be
applied to such person.
10Visitors
There shall be appointed in respect of every
institution established under this Act:
(a)
a magistrate to act as visiting justice to such
institution who shall visit such institution at least once in every month or
oftener, as required.
The duties of such magistrate shall be as defined
by regulations made under this Act,
(b)
a legally qualified medical practitioner to act
as visiting medical officer who, in addition to such other duties as may be
prescribed, shall furnish to the Minister a quarterly report regarding the
health and mental condition of every patient in such
institution,
(c)
a visiting committee consisting of three persons,
one of whom shall be a retired magistrate or a barrister-at-law or a
solicitor, who shall act as chairman of such committee, and the other two
members of which shall be legally qualified medical practitioners with special
qualifications for dealing with the mentally deficient.
Such committee shall visit the institution at
least once in every month with or without previous notice, and at such hours
or for such time as they think fit, and also at such other times as the
Minister may direct.
The powers and duties of the committee shall be
as defined by regulations made under this Act.
11Regulations
(1)
The Governor may make regulations:
(a)
for the regulation, control, management and
inspection of institutions and providing for the care, control and suitable
employment of persons detained in such institutions and prescribing the duties
of the various officers and committees appointed to control or visit such
institution,
(b)
for the control, good order, discipline, and
health of mentally defective persons,
(c)
for the appointment, promotion, dismissal and
discipline of officers under this Act,
(d)
for carrying out and giving effect to the
provisions of this Act.
(2)
s 11: Am 1987 No 48,
Sch 32.
Schedule
(Section 2)
(a)
Offences in respect of which a penalty of death
or penal servitude or imprisonment with or without hard labour for a term of
two years or upwards may be imposed.
(b)
Wilful and obscene exposure of
person.
Historical
notes
Table of amending
instruments
Mental Defectives (Convicted
Persons) Act 1939 No 19. Assented to 24.10.1939. Date of
commencement, 2.1.1941, sec 1 (2) and GG No 177 of 27.12.1940, p 5084. This
Act has been amended as follows:
1965
No
33
Decimal Currency Act
1965. Assented to 20.12.1965.
Date of commencement of sec 4, 14.2.1966, secs 1 (3), 2
(1) and the Currency Act 1965 (Commonwealth), sec 2
(2).
1982
No
168
Miscellaneous Acts (Local Courts)
Amendment Act 1982. Assented to 24.12.1982.
Date of commencement of Sch 1, 1.1.1985, sec 2 (2) and
GG No 178 of 21.12.1984, p 6296. Amended by Statute Law (Miscellaneous Amendments)
1984 No 153. Assented to 10.12.1984. Date of commencement
of the provisions of Sch 16 relating to the Miscellaneous Acts (Local Courts)
Amendment Act 1982, assent, sec 2
(1).
1987
No
48
Statute Law (Miscellaneous Provisions)
Act (No 1) 1987. Assented to 28.5.1987.
Date of commencement of Sch 32, except as provided by
sec 2 (13), 1.9.1987, sec 2 (12) and GG No 136 of 28.8.1987, p
4809.
Table of
amendments
No reference is made to certain amendments made
by the Decimal Currency Act
1965.
Sec
2
Am 1982 No
168, Sch 1.
Sec
11
Am 1987 No
48, Sch 32.