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Contents (1990 - 10)
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Mental Health (Criminal Procedure) Act 1990 No 10
Historical version for 16 November 2007 to 6 December 2007 (accessed 25 August 2019 at 00:42) Current version
Part 2
Part 2 Criminal proceedings in the Supreme Court and District Court relating to persons affected by mental disorders
4   Application
This Part applies to criminal proceedings in the Supreme Court (including criminal proceedings within the summary jurisdiction of the Supreme Court) and criminal proceedings in the District Court.
5   Person by whom question of unfitness may be raised
The question of a person’s unfitness to be tried for an offence may be raised by any party to the proceedings in respect of the offence or by the Court.
6   Basis of determination of question of unfitness
The question of a person’s unfitness to be tried for an offence is to be determined on the balance of probabilities.
7   Time at which question of unfitness may be raised
(1)  The question of a person’s unfitness to be tried for an offence is, so far as practicable, to be raised before the person is arraigned on a charge in respect of the offence but may be raised at any time during the course of the hearing of the proceedings in respect of the offence.
(2)  Nothing in this section prevents the question of a person’s unfitness to be tried for an offence from being raised on more than one occasion in respect of the same proceedings.
8   Procedure where question of unfitness raised before arraignment
(1)  If the question of a person’s unfitness to be tried for an offence is raised at any time before the person is arraigned on a charge in respect of the offence, the Court must determine whether an inquiry should be conducted before the hearing of the proceedings in respect of the offence.
(2)  The Court may, at any time before the inquiry is commenced, determine that there is no longer any need for such an inquiry to be conducted.
9   Procedure where question of unfitness raised after arraignment
If the question of a person’s unfitness to be tried for an offence is raised after the person is arraigned on a charge in respect of the offence, the Court must hear any submissions relating to the conducting of an inquiry in the absence of any jury which has been constituted for the purposes of the proceedings relating to the offence.
10   Procedure on raising question of unfitness
(1)  If, in respect of an offence:
(a)  the Court determines that an inquiry should be conducted and does not subsequently determine, before the inquiry is commenced, that there is no longer any need for such an inquiry to be conducted, or
(b)  the question of a person’s unfitness to be tried for the offence is raised after the person is arraigned on a charge in respect of the offence,
the Court must (except as provided by this section), as soon as practicable after the determination is made or the question is raised, as the case may be, conduct an inquiry in order to determine whether the person is unfit to be tried for the offence.
(2)  The Court must not conduct an inquiry into the question of a person’s unfitness to be tried for an offence unless it appears to the Court that the question has been raised in good faith.
(3)  Before conducting an inquiry, the Court may do any one or more of the following:
(a)  adjourn the proceedings,
(b)  grant the accused person bail in accordance with the Bail Act 1978,
(c)  remand the accused person in custody for a period not exceeding 28 days,
(d)  request the accused person to undergo a psychiatric examination or other examination,
(e)  request that a psychiatric report or other report relating to the accused person be obtained,
(f)  discharge any jury constituted for the purpose of those proceedings,
(g)  make any other order that the Court considers appropriate.
(4)  If, in respect of a person charged with an offence, the Court is of the opinion that it is inappropriate, having regard to the trivial nature of the charge or offence, the nature of the person’s disability or any other matter which the Court thinks proper to consider, to inflict any punishment, the Court may determine not to conduct an inquiry and may dismiss the charge and order that the person be released.
11   Determination of question of unfitness
(1)  The question of a person’s unfitness to be tried for an offence is to be determined by the Judge alone.
(2)  Any determination by the Judge under this section must include the principles of law applied by the Judge and the findings of fact on which the Judge relied.
11A   (Repealed)
12   Conduct of inquiry
(1)  At an inquiry, the accused person is, unless the Court otherwise allows, to be represented by an Australian legal practitioner.
(2)  An inquiry is not to be conducted in an adversary manner.
(3)  The onus of proof of the question of a person’s unfitness to be tried for an offence does not rest on any particular party to the proceedings in respect of the offence.
(4)    (Repealed)
13   Person found fit to be tried
If, following an inquiry, an accused person is found fit to be tried for an offence, the proceedings brought against the person in respect of the offence are to recommence or continue in accordance with the appropriate criminal procedures.
14   Person found unfit to be tried
If, following an inquiry, an accused person is found unfit to be tried for an offence, the proceedings brought against the person in respect of the offence must not, except for the purpose of doing any of the things referred to in paragraph (b), be recommenced or continued and the Court:
(a)  must refer the person to the Tribunal, and
(b)  may discharge any jury constituted for the purpose of those proceedings and may, pending the determination of the Tribunal under section 16, do any one or more of the following:
(i)  adjourn the proceedings,
(ii)  grant the person bail in accordance with the Bail Act 1978,
(iii)  remand the person in custody until the determination of the Tribunal has been given effect to,
(iv)  make any other order that the Court considers appropriate.
15   Presumptions as to findings concerning unfitness
It is to be presumed:
(a)  that a person who has, in accordance with this Part, been found to be unfit to be tried for an offence continues to be unfit to be tried for the offence until the contrary is, on the balance of probabilities, determined to be the case, and
(b)  that a person who has, in accordance with this Part, been found fit to be tried for an offence continues to be fit to be tried for the offence until the contrary is, on the balance of probabilities, determined to be the case.
16   Functions of Tribunal on referral after inquiry
(1)  If a person has been referred to the Tribunal under section 14 after a finding that the person is unfit to be tried for an offence, the Tribunal must, as soon as practicable after the person is so referred, determine whether, on the balance of probabilities, the person will, during the period of 12 months after the finding of unfitness, become fit to be tried for the offence.
(2)  If the Tribunal determines that a person will, during the period of 12 months after the finding of unfitness, become fit to be tried for an offence, the Tribunal must also determine whether or not:
(a)  the person is suffering from mental illness, or
(b)  the person is suffering from a mental condition for which treatment is available in a mental health facility and, if the person is not in a mental health facility, whether or not the person objects to being detained in a mental health facility.
(3)  After determining in respect of a person the matters referred to in this section, the Tribunal must notify the Court which referred the person to it of its determination.
(4)  If the Tribunal determines that a person will not, during the period of 12 months after the finding of unfitness, become fit to be tried for an offence, the Tribunal must notify the Director of Public Prosecutions of the determination.
17   Orders Court may make following determination of Tribunal that person will be fit to plead within 12 months
(1)  If the Court is notified by the Tribunal of its determination that a person will, on the balance of probabilities, become fit to be tried during the period of 12 months after the finding of unfitness and of its determination in relation to the matters set out in section 16 (2), the Court may take the action set out in subsection (2) or (3).
(2)  The Court may grant the person bail in accordance with the Bail Act 1978 for a period not exceeding 12 months.
(3)  If the Tribunal has determined:
(a)  that the person is suffering from mental illness or that the person is suffering from a mental condition for which treatment is available in a mental health facility and that the person, not being in a mental health facility, does not object to being detained in a mental health facility—the Court may order that the person be taken to and detained in a mental health facility, or
(b)  that the person is not suffering from mental illness or from a mental condition referred to in paragraph (a) or that the person is suffering from such a mental condition but that the person objects to being detained in a mental health facility—the Court may order that the person be detained in a place other than a mental health facility,
for a period not exceeding 12 months.
(4)  As soon as practicable after the grant of bail under subsection (2) or the making of an order under subsection (3), the Registrar of the Court is to notify the Tribunal of the grant of bail or the terms of the order.
18   (Repealed)
19   Court to hold special hearing after advice received from Director of Public Prosecutions
(1)  If the Court receives a notification of a determination from the Tribunal under section 16 (3), 42 (4) or 44 (2) that a person will not, during the period of 12 months after the finding of unfitness, become fit to be tried for an offence, the Court:
(a)  is to obtain the advice of the Director of Public Prosecutions as to whether further proceedings will be taken by the Director of Public Prosecutions in respect of the offence, and
(b)  is to conduct a special hearing as soon as practicable unless the Director of Public Prosecutions advises that no further proceedings will be taken.
(2)  A special hearing is a hearing for the purpose of ensuring, despite the unfitness of the person to be tried in accordance with the normal procedures, that the person is acquitted unless it can be proved to the requisite criminal standard of proof that, on the limited evidence available, the person committed the offence charged or any other offence available as an alternative to the offence charged.
(3)  If the Director of Public Prosecutions advises the Court under subsection (1) (a) that no further proceedings will be taken in respect of the offence, the Director of Public Prosecutions is also to give that advice to the Minister for Police.
(4)  Subsection (1) does not apply if the Court has already held a special hearing in relation to the offence concerned.
20   Release of certain persons
If, under section 19, the Director of Public Prosecutions advises a Court that a person will not be further proceeded against in respect of an offence, the Court must order the release of the person.
21   Nature and conduct of special hearing
(1)  Except as provided by this Act, a special hearing is to be conducted as nearly as possible as if it were a trial of criminal proceedings.
(2)  At a special hearing, the accused person must, unless the Court otherwise allows, be represented by an Australian legal practitioner and the fact that the person has been found unfit to be tried for an offence is to be presumed not to be an impediment to the person’s representation.
(3)  At a special hearing:
(a)  the accused person is to be taken to have pleaded not guilty in respect of the offence charged, and
(b)  the Australian legal practitioner, if any, who represents the accused person may exercise the rights of the person to challenge jurors or the jury, and
(c)  without limiting the generality of subsection (1), the accused person may raise any defence that could be properly raised if the special hearing were an ordinary trial of criminal proceedings, and
(d)  without limiting the generality of subsection (1), the accused person is entitled to give evidence.
(4)  At the commencement of a special hearing for which a jury has been constituted, the Court must explain to the jury the fact that the accused person is unfit to be tried in accordance with the normal procedures, the meaning of unfitness to be tried, the purpose of the special hearing, the verdicts which are available and the legal and practical consequences of those verdicts.
21A   Judge to try special hearing unless election for jury made
(1)  At a special hearing, the question whether an accused person has committed an offence charged or any other offence available as an alternative to an offence charged is to be determined by the Judge alone unless an election to have a special hearing determined by a jury is made by:
(a)  the accused person and the Court is satisfied that the person sought and received advice in relation to the election from an Australian legal practitioner and understood the advice, or
(b)  an Australian legal practitioner representing the accused person, or
(c)  the prosecutor.
(2)  An election to have a special hearing determined by a jury must be made:
(a)  in the case of an election by the accused person or the Australian legal practitioner representing the accused person—on any day before the day fixed for the special hearing in the Supreme Court or the District Court, or
(b)  in the case of an election by the prosecutor—at least 7 days before the day fixed for the special hearing in the Supreme Court or the District Court.
(3)  An accused person or an Australian legal practitioner representing an accused person who elects to have a special hearing determined by a jury may, at any time before the day fixed for the special hearing, subsequently elect to have the matter determined by the Judge alone.
(4)  The Jury Act 1977 applies to and in respect of the constitution of a jury, and a jury constituted, for the purpose of a special hearing in the same way as it applies to and in respect of the constitution of a jury, and a jury constituted, for the trial of any criminal proceedings.
(5)  A member of a jury otherwise constituted for the purpose of any proceedings relating to the same accused person and the same offence is disqualified from being a member of a jury constituted as referred to in subsection (4).
(6)  Rules of court may be made with respect to elections under this section.
21B   Verdict of Judge
(1)  The verdicts available to a Judge who determines a special hearing without a jury are the verdicts available to a jury under section 22. Any such verdict has, for all purposes, the same effect as a verdict of a jury.
(2)  A determination by a Judge in any such special hearing must include the principles of law applied by the Judge and the findings of fact on which the Judge relied.
22   Verdicts at special hearing
(1)  The verdicts available to the jury or the Court at a special hearing include the following:
(a)  not guilty of the offence charged,
(b)  not guilty on the ground of mental illness,
(c)  that on the limited evidence available, the accused person committed the offence charged,
(d)  that on the limited evidence available, the accused person committed an offence available as an alternative to the offence charged.
(2)  A verdict in accordance with subsection (1) (b) is to be taken to be equivalent for all purposes to a special verdict that an accused person is not guilty by reason of mental illness under section 38.
(3)  A verdict in accordance with subsection (1) (c) or (d):
(a)  constitutes a qualified finding of guilt and does not constitute a basis in law for any conviction for the offence to which the finding relates, and
(b)  subject to section 28, constitutes a bar to further prosecution in respect of the same circumstances, and
(c)  is subject to appeal in the same manner as a verdict in an ordinary trial of criminal proceedings, and
(d)  is to be taken to be a conviction for the purpose of enabling a victim of the offence in respect of which the verdict is given to make a claim for compensation.
22A   Amendment of indictment
(1)  The provisions of the Criminal Procedure Act 1986 apply to the amendment of an indictment under this section in the same way as they apply to the amendment of an indictment in ordinary criminal proceedings, subject to any modifications that the Court considers appropriate in the circumstances.
(2)  Without limiting subsection (1), the Director of Public Prosecutions may, with the leave of the Court or the consent of an Australian legal practitioner representing the accused person, amend an indictment to which a special hearing relates.
23   Procedure after completion of special hearing
(1)  If, following a special hearing, it is found on the limited evidence available that an accused person committed the offence charged or some other offence available as an alternative, the Court:
(a)  must indicate whether, if the special hearing had been a normal trial of criminal proceedings against a person who was fit to be tried for the offence which the person is found to have committed, it would have imposed a sentence of imprisonment, and
(b)  where the Court would have imposed such a sentence, must nominate a term, in this section referred to as a limiting term, in respect of that offence, being the best estimate of the sentence the Court would have considered appropriate if the special hearing had been a normal trial of criminal proceedings against a person who was fit to be tried for that offence and the person had been found guilty of that offence.
(2)  If a Court indicates that it would not have imposed a sentence of imprisonment in respect of a person, the Court may impose any other penalty or make any other order it might have made on conviction of the person for the relevant offence in a normal trial of criminal proceedings.
(3)  Any such other penalty imposed or order made, under subsection (2), is to be subject to appeal in the same manner as a penalty or order in a normal trial of criminal proceedings.
(4)  In nominating a limiting term in respect of a person or imposing any other penalty or making any other order, the Court may, if it thinks fit, take into account the periods, if any, of the person’s custody or detention before, during and after the special hearing (being periods related to the offence).
(5)  A limiting term nominated in respect of a person takes effect from the time when it is nominated unless the Court:
(a)  after taking into account the periods, if any, of the person’s custody or detention before, during and after the special hearing (being periods related to the offence), directs that the term be taken to have commenced at an earlier time, or
(b)  directs that the term commence at a later time so as to be served consecutively with (or partly concurrently and partly consecutively with) some other limiting term nominated in respect of the person or a sentence of imprisonment imposed on the person.
(6)  When making a direction under subsection (5) (b), the Court is to take into account that:
(a)  a sentence of imprisonment imposed in a normal trial of criminal proceedings may be subject to a non-parole period whereas a limiting term is not, and
(b)  in a normal trial of criminal proceedings, consecutive sentences of imprisonment are to be imposed with regard to non-parole periods (as referred to in section 47 (4) and (5) of the Crimes (Sentencing Procedure) Act 1999).
24   Consequences of nomination of limiting term
(1)  If in respect of a person a Court has nominated a limiting term, the Court:
(a)  must refer the person to the Tribunal, and
(b)  may make such order with respect to the custody of the person as the Court considers appropriate.
(2)  If a Court refers a person to the Tribunal, the Tribunal must determine whether or not:
(a)  the person is suffering from mental illness, or
(b)  the person is suffering from a mental condition for which treatment is available in a mental health facility and, where the person is not in a mental health facility, whether or not the person objects to being detained in a mental health facility.
(3)  The Tribunal must notify the Court which referred the person to it of its determination with respect to the person.
25   Special verdict of not guilty by reason of mental illness
If at a special hearing the defence of mental illness is raised and the jury or Judge, as the case may be, returns a special verdict that the accused person is not guilty by reason of mental illness, the person is thereafter to be dealt with and an order may be made under this Act in respect of the person as if the jury or Judge, as the case may be, had returned such a special verdict at a normal trial of criminal proceedings.
26   Verdict of not guilty
If at a special hearing it is found that an accused person is not guilty of an offence charged, the person is thereafter to be dealt with as if the person had been found not guilty at a normal trial of criminal proceedings.
27   Orders Court may make following determination of Tribunal after limiting term is imposed
If a Court is notified by the Tribunal of its determination in respect of a person under section 24 (3), the Court may:
(a)  if the Tribunal has determined that the person is suffering from mental illness or that the person is suffering from a mental condition for which treatment is available in a mental health facility and that the person, not being in a mental health facility, does not object to being detained in a mental health facility—order that the person be taken to and detained in a mental health facility, or
(b)  if the Tribunal has determined that the person is not suffering from mental illness or from a mental condition referred to in paragraph (a) or that the person is suffering from such a mental condition but that the person objects to being detained in a mental health facility—order that the person be detained in a place other than a mental health facility.
28   Effect on other proceedings of finding on special hearing
(1)  If, following a special hearing, an accused person is found on the limited evidence available to have committed the offence charged or some other offence available as an alternative, the finding, except as provided by subsection (2), constitutes a bar to any other criminal proceedings brought against the person for the same offence or substantially the same offence.
(2)  Nothing in subsection (1) prevents other criminal proceedings referred to in that subsection from being commenced at any time before the expiration of any limiting term nominated in respect of a person unless, before the expiration of the limiting term, the person has been released from custody as an inmate (within the meaning of the Crimes (Administration of Sentences) Act 1999) or discharged from detention as a forensic patient.
(3)  If, pursuant to other criminal proceedings referred to in subsection (1), an accused person is convicted of the offence or substantially the same offence as that which, at a special hearing, the person was found to have committed, the periods, if any, of the person’s custody or detention before, during and after the special hearing (being periods relating to the offence) are to be fully taken into account in determining any period of any sentence or the terms of any disposition consequent on the conviction.
29   Action to be taken on notification that person is fit to be tried
(1)  If the Tribunal has notified the Court that it is of the opinion that a person who has been found to be unfit to be tried for an offence has become fit to be tried for the offence (whether or not a special hearing has been conducted in respect of the offence), the Court:
(a)  is to obtain the advice of the Director of Public Prosecutions as to whether further proceedings will be taken by the Director of Public Prosecutions in respect of the offence, and
(b)  is to hold a further inquiry as to the person’s fitness as soon as practicable unless the Director of Public Prosecutions advises that the person will not be further proceeded against in respect of the offence.
(2)  The Director of Public Prosecutions must advise the Minister for Health and the Tribunal if the Director has determined that no further proceedings will be taken in respect of the offence.
(3)  If the Director of Public Prosecutions advises the Minister for Health that a person will not be further proceeded against, the Minister for Health must, after having informed the Minister for Police of the date of the person’s release, do all such things within the power of the Minister for Health to order the person’s release from detention or to otherwise ensure the person’s release from detention.
(4)  Sections 11 and 12 apply to and in respect of a further inquiry under this section in the same way as those sections apply to and in respect of an inquiry.
30   Procedure after completion of further inquiry
(1)  If, following a further inquiry under section 29, an accused person is found fit to be tried for an offence, the proceedings brought against the person in respect of the offence are to recommence or continue in accordance with the appropriate criminal procedures.
(2)  If, following a further inquiry under section 29, an accused person is found unfit to be tried for an offence:
(a)  in the case of an accused person who has been detained in custody as an inmate (within the meaning of the Crimes (Administration of Sentences) Act 1999) or in a mental health facility as a forensic patient for a period or continuous periods in the aggregate of not less than 12 months and in respect of whom a special hearing has not been held—the Court must conduct a special hearing, or
(b)  in the case of any other accused person—the Court may conduct a special hearing (if a special hearing has not been held) or order that the person be returned to the custody or mental health facility from which the person was taken.