Australian Capital Territory
Crimes Amendment Act 2005
A2005-7
    
Contents
	Page
Part 1	Preliminary
	1	Name of Act	2
	2	Commencement	2
Part 2	Community Advocate Act 1991
	3	Legislation amended—pt 2	3
	4	Definitions for Act
Section 3, definition of forensic patient, paragraph (b)	3
Part 3	Crimes Act 1900
	5	Legislation amended—pt 3	4
	6	Definitions for pt 13
Section 300, definition of special hearing	4
	7	Sections 310 to 315	4
	8	Section 316 heading	10
	9	Section 316 (3)	10
	10	Section 316 (7)	10
	11	Action if accused becomes fit to plead after special hearing
Section 319A (1), note	10
	12	Fitness to plead—Magistrates Court
Section 335 (2) (a)	11
	13	Section 335 (4) (a)	11
	14	Action if accused becomes fit to plead after hearing
Section 335A (1), note	11
Part 4	Magistrates Court Act 1930
	15	Legislation amended—pt 4	12
	16	Appeals to which div 3.10.2 applies
New section 208 (1) (aa)	12
	17	Section 208 (1)	12
	18	Institution of appeal
Section 209 (2)	12
	19	Stay of execution pending appeal in certain cases
Section 216 (1)	13
Part 5	Mental Health (Treatment and Care) Act 1994
	20	Legislation amended—pt 5	14
	21	Functions
Section 11 (e)	14
	22	Section 11	14
	23	Sections 68, 69 and 69A	14
	24	Section 71	16
	25	Constitution for exercise of powers
Section 83 (2) (d) and (e)	17
	26	Section 83 (2)	17
	27	New part 14	17

Australian Capital Territory
Crimes Amendment Act 2005
A2005-7

An Act to amend the Crimes Act 1900, and for other purposes

    

The Legislative Assembly for the Australian Capital Territory enacts as follows:

Part 1	Preliminary
1	Name of Act
This Act is the Crimes Amendment Act 2005.
2	Commencement
This Act commences on the day after its notification day.
Note	The naming and commencement provisions automatically commence on the notification day (see Legislation Act, s 75 (1)).

Part 2	Community Advocate Act 1991
3	Legislation amended—pt 2
This part amends the Community Advocate Act 1991.
4	Definitions for Act
Section 3, definition of forensic patient, paragraph (b)
substitute
	(b)	found by a court or the mental health tribunal to be unfit to plead; or

Part 3	Crimes Act 1900
5	Legislation amended—pt 3
This part amends the Crimes Act 1900.
6	Definitions for pt 13
Section 300, definition of special hearing
omit
section 315
substitute
section 316
7	Sections 310 to 315
substitute
310	Application of div 13.2
This division applies to a criminal proceeding in the Supreme Court or the Magistrates Court.
311	When a person is unfit to plead
	(1)	A person is unfit to plead to a charge if the person’s mental processes are disordered or impaired to the extent that the person cannot—
	(a)	understand the nature of the charge; or
	(b)	enter a plea to the charge and exercise the right to challenge jurors or the jury; or
	(c)	understand that the proceeding is an inquiry about whether the person committed the offence; or
	(d)	follow the course of the proceeding; or
	(e)	understand the substantial effect of any evidence that may be given in support of the prosecution; or
	(f)	give instructions to the person’s lawyer.
	(2)	A person is not unfit to plead only because the person is suffering from memory loss.
312	Presumption of fitness to plead, standard of proof etc
	(1)	A person is presumed to be fit to plead.
	(2)	The presumption is rebutted only if it is established, on an investigation under this division, that the person is unfit to plead.
	(3)	The question of a person’s fitness to plead—
	(a)	is a question of fact; and
	(b)	is to be decided on the balance of probabilities.
	(4)	No party bears a burden of proof in relation to the question.
313	Who can raise question of unfitness to plead
The question of a defendant’s fitness to plead to a charge may be raised by a party to a proceeding in relation to the charge or by the court.
314	Procedure if question raised
	(1)	If the question is raised in the Magistrates Court (other than at a committal hearing) and the court is satisfied that there is a real and substantial question about the defendant’s fitness to plead, the court must reserve the question for investigation under this division.
	(2)	If the question is raised at a committal hearing—
	(a)	the committal hearing must be completed; and
	(b)	the defendant must not be discharged only because the question has been raised; and
	(c)	if the person is committed for trial—the question must be reserved for consideration by the Supreme Court.
	(3)	If the question has been reserved under subsection (2) (c) or is otherwise raised in the Supreme Court and the court is satisfied that there is a real and substantial question about the defendant’s fitness to plead, the court must reserve the question for investigation under this division.
315	Procedure if question reserved for investigation
	(1)	If a court reserves the question for investigation, the court must adjourn the hearing or trial in which the question was raised and proceed with an investigation under this division.
	(2)	The court may make 1 or more of the following orders:
	(a)	an order granting bail;
	(b)	an order remanding the defendant in custody in an appropriate place for a stated period;
	(c)	an order requiring the defendant to be examined by a psychiatrist or other health professional;
	(d)	if the question arose in a trial for which a jury had been empanelled—an order discharging the jury;
	(e)	any other order the court considers appropriate.
	(3)	The court must not make an order under subsection (2) (b) remanding the defendant in custody at a place other than a prison or remand centre unless satisfied that the facilities or services necessary for the order are available at the place.
	(4)	If the court considers that, because of the trivial nature of the charge or the nature of the defendant’s disability, it would be inappropriate to inflict any punishment on the defendant in relation to the offence, the court may decide not to carry out or continue the investigation and may dismiss the charge and order that the person be released.
315A	Investigation into fitness to plead
	(1)	On an investigation into a defendant’s fitness to plead—
	(a)	the court must hear any relevant evidence and submissions put to the court by the prosecution or the defence; and
	(b)	if the court considers that it is in the interests of justice to do so, the court may—
	(i)	call evidence on its own initiative; or
	(ii)	require the defendant to be examined by a psychiatrist or other health professional; or
	(iii)	require the results of the examination to be put before the court.
	(2)	Before hearing any evidence or submissions, the court must consider whether, for the protection of the defendant’s privacy, the court should be closed to the public while all or part of the evidence or submissions are heard.
	(3)	The court must decide whether the defendant is unfit to plead.
	(4)	If the court finds that the defendant is unfit to plead, the court must also decide whether the defendant is likely to become fit to plead within the next 12 months.
315B	Person found fit to plead
If the court decides that the defendant is fit to plead, the proceeding brought against the defendant must be continued in accordance with ordinary criminal procedure.
315C	Person found unfit to plead and unlikely to become fit to plead
If the court decides that the defendant is unfit to plead and is unlikely to become fit to plead within the next 12 months, the court must—
	(a)	for a proceeding in the Supreme Court—
	(i)	discharge any jury empanelled for the proceeding; and
	(ii)	hold a special hearing under section 316; and
	(b)	for a proceeding in the Magistrates Court—conduct a hearing under section 335.
315D	Person found temporarily unfit to plead
	(1)	If the court decides that the defendant is unfit to plead but is likely to become fit to plead within the next 12 months, the court must adjourn the proceeding and—
	(a)	if the defendant is charged with a serious offence—remand the defendant in custody or release the defendant on bail; and
	(b)	if the defendant is charged with an offence other than a serious offence—make the orders it considers appropriate.
	(2)	The orders the court may make under subsection (1) (b) include—
	(a)	an order remanding the defendant in custody; and 
	(b)	an order requiring the defendant to submit to the jurisdiction of the tribunal to enable the tribunal to make a mental health order.
	(3)	The court may (on application or its own initiative) reinvestigate the defendant’s fitness to plead at any time before the end of the 12‑month period.
	(4)	However, if the court has not reinvestigated the defendant’s fitness to plead within 6 months after the day the initial decision was made, the court must reinvestigate it as soon as practicable (but within 30 days) after the end of that period.
	(5)	If, before the end of the 12-month period, the defendant has not been found fit to plead, the court must reinvestigate the defendant’s fitness to plead as soon as practicable (but within 3 months) after the end of that period.
	(6)	On a reinvestigation—
	(a)	the court must hear any relevant evidence and submissions put to the court by the prosecution or the defence; and
	(b)	if the court considers that it is in the interests of justice to do so, the court may—
	(i)	call evidence on its own initiative; or
	(ii)	require the defendant to be examined by a psychiatrist or other health professional; or
	(iii)	require the results of the examination to be put before the court.
	(7)	The court must decide whether the defendant is unfit to plead.
	(8)	If the court decides that the defendant is fit to plead, the proceeding brought against the defendant must be continued in accordance with ordinary criminal procedure.
	(9)	If, on a reinvestigation mentioned in subsection (5), the court decides that the defendant is unfit to plead, the court must—
	(a)	for a proceeding in the Supreme Court—
	(i)	discharge any jury empanelled for the proceeding; and
	(ii)	hold a special hearing under section 316; and
	(b)	for a proceeding in the Magistrates Court—conduct a hearing under section 335.
8	Section 316 heading
substitute
316	Special hearing
9	Section 316 (3)
omit
If section 315 (1) applies, the
substitute
The
10	Section 316 (7)
omit
A determination by the tribunal
substitute
A decision
11	Action if accused becomes fit to plead after special hearing
Section 319A (1), note
substitute
Note	For the relevant review of fitness to plead provisions, see the Mental Health (Treatment and Care) Act 1994, s 68.
12	Fitness to plead—Magistrates Court
Section 335 (2) (a)
omit
tribunal determines
substitute
Magistrates Court decides as mentioned in section 315C or section 315D (9)
13	Section 335 (4) (a)
omit
tribunal determines
substitute
Magistrates Court decides as mentioned in section 315C or section 315D (9)
14	Action if accused becomes fit to plead after hearing
Section 335A (1), note
substitute
Note	For the relevant review of fitness to plead provisions, see the Mental Health (Treatment and Care) Act 1994, s 68.

Part 4	Magistrates Court Act 1930
15	Legislation amended—pt 4
This part amends the Magistrates Court Act 1930.
16	Appeals to which div 3.10.2 applies
New section 208 (1) (aa)
before paragraph (a), insert
	(aa)	an appeal by any of the following from a decision of the Magistrates Court under the Crimes Act, section 315A (2) or (3) (Investigation into fitness to plead) or section 315D (7) (Person found temporarily unfit to plead):
	(i)	the person whose fitness to plead was decided;
	(ii)	anyone who appeared at the proceeding in which the decision was made;
	(iii)	anyone else with the leave of the court;
17	Section 208 (1)
renumber paragraphs when Act next republished under Legislation Act
18	Institution of appeal
Section 209 (2)
substitute
	(2)	As soon as practicable after instituting the appeal, the appellant must—
	(a)	file a copy of the notice of appeal with the Magistrates Court; and
	(b)	serve a copy of the notice of appeal on—
	(i)	for an appeal mentioned in section 208 (1) (aa)—each other person mentioned in that paragraph; and
	(ii)	for any other appeal—the informant.
19	Stay of execution pending appeal in certain cases
Section 216 (1)
before
conviction
insert
decision, 

Part 5	Mental Health (Treatment and Care) Act 1994
20	Legislation amended—pt 5
This part amends the Mental Health (Treatment and Care) Act 1994.
21	Functions
Section 11 (e)
substitute
	(e)	to make orders for the treatment, care, control, rehabilitation and protection of people found unfit to plead, to review their welfare and to make any appropriate order for their release (subject to conditions or unconditionally);
	(ea)	to review the fitness to plead of certain people under section 68; 
22	Section 11
renumber paragraphs when Act next republished under Legislation Act
23	Sections 68, 69 and 69A
substitute
68	Review of certain people found unfit to plead
	(1)	This section applies if—
	(a)	the Supreme Court or the Magistrates Court makes a decision under the Crimes Act 1900, section 315A (2) or section 315D (7) that a person is unfit to plead to a charge; and
	(b)	the charge is for an offence punishable by imprisonment for 5 years or longer; and
	(c)	an order is made in relation to the charge under any of the following provisions of the Crimes Act 1900: 
·	section 318 (2) (Non-acquittal at special hearing—non-serious offence);
·	section 319 (2) (Non-acquittal at special hearing—serious offence);
·	section 335 (2), (3) or (4) (Fitness to plead—Magistrates Court).
	(2)	The tribunal may (on application or on its own initiative) review the person’s fitness to plead at any time.
	(3)	However, the tribunal must review the person’s fitness to plead—
	(a)	as soon as practicable (but within 3 months) after the end of 12 months after the day the order is made; and 
	(b)	at least once every 12 months after each review.
	(4)	Subsection (3) does not apply if—
	(a)	the person has already been found fit to plead; or
	(b)	the director of public prosecutions has told the tribunal, in writing, of the director’s intention not to take further proceedings against the person in relation to the offence.
	(5)	On a review, the tribunal must decide on the balance of probabilities whether the person is unfit to plead.
	(6)	The tribunal must decide that the person is unfit to plead if satisfied that the person’s mental processes are disordered or impaired to the extent that the person cannot—
	(a)	understand the nature of the charge; or
	(b)	enter a plea to the charge and exercise the right to challenge jurors or the jury; or
	(c)	understand that the proceeding is an inquiry about whether the person committed the offence; or
	(d)	follow the course of the proceeding; or
	(e)	understand the substantial effect of any evidence that may be given in support of the prosecution; or
	(f)	give instructions to the person’s lawyer.
	(7)	The person is not unfit to plead only because the person is suffering from memory loss.
	(8)	To remove any doubt, this section applies even if the person is no longer in custody or under a mental health order.
Note	A person the subject of a proceeding may be summoned to appear at the proceeding (see s 90).
24	Section 71
substitute
71	Service of decisions etc
The registrar must serve a copy of a decision, determination or recommendation made under section 68 or section 70 on—
	(a)	the person about whom the decision, determination or recommendation is made; and
	(b)	the representative of that person (if any); and
	(c)	the community advocate; and
	(d)	the director of public prosecutions; and
	(e)	if the person about whom the decision, determination or recommendation is made is a child—the C&YP chief executive.
25	Constitution for exercise of powers
Section 83 (2) (d) and (e)
substitute
	(d)	reviewing a person’s fitness to plead under section 68; or 
26	Section 83 (2)
renumber paragraphs when Act next republished under Legislation Act
27	New part 14
insert
Part 14	Transitional
148	Application of amendments made by Crimes Amendment Act 2005
	(1)	This section applies if, before the commencement of the Crimes Amendment Act 2005 (the amending Act)—
	(a)	the Supreme Court or Magistrates Court makes an order under the Crimes Act, part 13 requiring a person to submit to the jurisdiction of the tribunal to enable the tribunal to determine whether or not the person is fit to plead to a charge; and
	(b)	the tribunal has not made a final determination about the person’s fitness to plead.
	(2)	Part 8, as in force immediately before the commencement of the amending Act, continues to apply in relation to the matter until the tribunal makes its final determination about the person’s fitness to plead.
	(3)	After the tribunal makes its final determination about the person’s fitness to plead, the Crimes Act, part 13 applies in relation to the matter as if the question of the person’s fitness to plead had been decided by the court.
	(4)	For the application of this Act, section 68 as amended by the amending Act, a determination by the tribunal that a person is unfit to plead in relation to a charge (whether the determination is made before or after the commencement of the amending Act), is taken to be a decision of the Magistrates Court under the Crimes Act, section 315D (7) that the person is unfit to plead in relation to the charge.
	(5)	In this section:
final determination about a person’s fitness to plead means—
	(a)	a determination under section 68 that the person is unfit to plead and is unlikely to become fit within 12 months; or
	(b)	a determination under section 68, or on a review under section 69, that the person is fit to plead; or
	(c)	if the tribunal first determines under section 68 that the person is unfit to plead but is likely to become fit within 12 months after the determination is made—a determination under section 69 after the end of the 12‑month period that the person is unfit to plead.
149	Expiry of pt 14
	(1)	This part expires 3 months after the day it commences.
	(2)	This part is a law to which the Legislation Act, section 88 (Repeal does not end effect of transitional laws etc) applies.

Endnotes
1	Presentation speech
	Presentation speech made in the Legislative Assembly on 9 December 2004.
2	Notification
	Notified under the Legislation Act on 23 February 2005.
3	Republications of amended laws
	For the latest republication of amended laws, see www.legislation.act.gov.au.

I certify that the above is a true copy of the Crimes Amendment Bill 2005, which originated in the Legislative Assembly as the Crimes Amendment Bill 2004 (No 4) and was passed by the Assembly on 17 February 2005.

Clerk of the Legislative Assembly

© Australian Capital Territory 2005