Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic)
Version No. 082
Crimes (Mental Impairment and Unfitness to be Tried) Act 1997
No. 65 of 1997
Version incorporating amendments as at
30 September 2025
TABLE OF PROVISIONS
Section Page
Part 1—Preliminary
1Purposes
2Commencement
3Definitions
4Application to courts and proceedings
5Application to Magistrates' Court
5AApplication to Children's Court
Part 2—Unfitness to stand trial
Division 1—Jury determination of unfitness to stand trial
5CApplication of this Division
6When is a person unfit to stand trial?
7Presumptions, standard of proof, etc.
8Committals
9Reservation of question of fitness to stand trial by court
10Court may make orders pending investigation into fitness
11Procedure on investigation
12What happens after an investigation?
13Abridgment of adjournment
14What happens at the end of an adjournment?
14AAppeal in relation to fitness to stand trial
Division 2—Determination of unfitness to stand trial by judge alone
14BApplication of this Division
14CQuestion of a person's fitness to stand trial
14DProcedure on investigation
14EFindings of investigation into fitness to stand trial
14FWhat happens after an investigation?
14GAbridgment of adjournment
14HWhat happens at the end of an adjournment?
14IAppeal in relation to fitness to stand trial
14JApplication of Juries Act 2000
14KRepeal of this Division
Part 3—Special hearings
15Purpose of special hearings
16Procedure at special hearings
17Findings at special hearings
18Effect of findings
19Court may make orders pending making of supervision order
19AAppeal against unconditional release
Part 4—Defence of mental impairment
20Defence of mental impairment
21Presumptions, standard of proof, etc.
22When may the question of mental impairment be raised?
23Effect of finding of not guilty because of mental impairment
24Court may make orders pending making of supervision order
24AAAppeal against mental impairment verdict
24AAppeal against unconditional release
25Abrogation of defence of insanity
Part 5—Disposition of people declared to be liable to supervision
26Supervision orders
27How long does a supervision order last?
28Nominal term of supervision order
28AAppeal against supervision order
29Non-compliance with non-custodial supervision order
30Emergency power of apprehension
30AWarrant to arrest person breaching non-custodial supervision order who leaves Victoria
30BWarrant to arrest person subject to custodial supervision order who leaves Victoria
31Application for variation or revocation of supervision order
32Variation of custodial supervision orders
33Variation or revocation of non-custodial supervision orders
34Appeal against confirmation or variation of supervision orders
34AAppeal against revocation of non-custodial supervision orders
35Major reviews
36Person subject to supervision order has right to appear
37Other parties may appear
38Rules of evidence not to apply in certain hearings
38ANotice of hearings to persons subject to supervision orders
38BNotice of hearings to DPP, Attorney-General and Secretary to Department of Health and Human Services
38CNotice of hearings to family members and victims
38DAppointment of person to receive notice on behalf of child
38EProvision of information to family members and victims
38FList of family members
Part 5A—Proceedings in the Children's Court and appeals from those proceedings
Division 1—General
38GApplication of Part
38HDefinitions
38IConstitution of Children's Court
38JRemand in custody
Division 2—Unfitness to stand trial
38KWhen is a child unfit to stand trial?
38LPresumptions, standard of proof etc.
38MCommittals
38NReservation of question of fitness to stand trial by Children's Court
38OTime limit for investigation into fitness
38PChildren's Court may make orders pending investigation into fitness
38QProcedure on investigation
38RWhat happens after an investigation?
38SAbridgment of adjournment
38TWhat happens at the end of an adjournment?
38UAppeal in relation to fitness to stand trial
Division 3—Special hearings
38VPurpose of special hearings
38WProcedure at special hearings
38XFindings at special hearings
38YEffect of findings
38ZCourt may make orders pending making of supervision order
38ZAAAppeal against unconditional release
Division 4—Defence of mental impairment
38ZADefence of mental impairment
38ZBPresumptions, standard of proof etc.
38ZCWhen may the question of mental impairment be raised?
38ZDEffect of finding of not guilty because of mental impairment
38ZEAppeal against mental impairment finding
38ZFAppeal against unconditional release
Division 5—Disposition of children declared to be liable to supervision
38ZHSupervision orders
38ZIHow long does a supervision order last?
38ZJAppeal against supervision order
38ZKNon-compliance with non-custodial supervision order
38ZLEmergency power of apprehension
38ZMWarrant to arrest child breaching non-custodial supervision order who leaves Victoria
38ZNApplication for variation or revocation of supervision order
38ZOVariation of custodial supervision orders on application or review
38ZPVariation or revocation of non-custodial supervision orders on application or review
38ZQTransfer of supervision order for review by County Court
Division 6—Reports as to supervision and victim impact statements
38ZRCourt must order report as to supervision
38ZSReport to be prepared and filed
38ZTContents of report
38ZUReport to be filed with court
38ZVAccess to reports
38ZWVictim impact statements
Part 6—Principles on which court is to act, reports and certificates
39Principle to be applied
40Matters to which the court is to have regard
41Reports on mental condition of persons declared liable to supervision
42Reports of family members and victims
43When and how is a report to be made?
44Distribution of report
45Admissibility of report
46Examination of victim or family member
47Certificate of available services
Part 7—Leave of absence
Division 1—Leave of absence
48Application of Division
49What types of leave may be granted?
50Special leave
51What is on-ground leave?
52What are the surrounds?
53What is limited off-ground leave?
54Granting of on-ground or limited off-ground leave
54AApplicant profile
54BLeave plan or statement
55Suspension of special leave, on-ground leave or limited off‑ground leave
56What is extended leave?
57Granting of extended leave
57ALeave plan for extended leave
57BAppeals regarding extended leave
58Suspension and revocation of extended leave
58AAppeals regarding revocation of extended leave
Division 2—Forensic Leave Panel
59Establishment of Panel
60Functions of the Panel
61Staff
62Secrecy
63Annual Report
Division 3—Procedure of Panel
64Procedure of the Panel
65Evidence
66Reasons
67Appointment of people to assist the Panel
68Notice of hearings
69Hearing not invalidated due to lack of notice
70Appearance and representation at Panel hearings
71Proceedings to be closed to public
72Protection of members etc.
73Offences
Part 7A—Interstate transfer of persons subject to supervision orders
73ADefinitions
73BCorresponding laws and orders
73CInformed consent
73DTransfer of persons from Victoria to a participating State
73ETransfer of persons from a participating State to Victoria
73FReview of persons transferred to Victoria
73GNominal term of supervision order
73HAppeal against unconditional release
Part 7B—Persons absconding to Victoria from interstate
73IDefinitions
73JWarrant to arrest person who absconds to Victoria
73KInterim disposition order
73LReview of interim disposition order
73MNominal term of supervision order
73NAppeal against unconditional release
Part 7C—International forensic patients
73ODefinition
73PReview of international forensic patients
73QNominal term of supervision order
73RAppeal against unconditional release
Part 8—General
74Service of notices of hearings to family members and victims
75Suppression orders
76Inadmissibility of evidence in other proceedings
76ADirections
76BRules of court
76CExtension of time for filing notice of appeal
76DPowers which may be exercised by a single Judge of Appeal
78Abolition of Governor's pleasure orders
79Supreme Court—limitation of jurisdiction
80Regulations
Part 10—Savings and transitional provisions
89Savings and transitional provisions
90International forensic patient—transitional provision
90ATransitional provisions—Justice Legislation Amendment (System Enhancements and Other Matters) Act 2021
91Transitional provision—Youth Justice Act 2024—increase in minimum age of criminal responsibility
Schedules
Schedule 1––Provisions with respect to members of the Panel
Schedule 2––Provisions with respect to the procedure of the Panel
Schedule 3––Savings and transitional provisions
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Endnotes
1 General information
2 Table of Amendments
3 Explanatory details
Version No. 082
Crimes (Mental Impairment and Unfitness to be Tried) Act 1997
No. 65 of 1997
Version incorporating amendments as at
30 September 2025
The Parliament of Victoria enacts as follows:
PART 1—PRELIMINARY
1Purposes
The purposes of this Act are—
(a)to define the criteria for determining if a person is unfit to stand trial;
(b)to replace the common law defence of insanity with a statutory defence of mental impairment;
(c)to provide new procedures for dealing with people who are unfit to stand trial or who are found not guilty because of mental impairment.
2Commencement
(1)This Part comes into operation on the day on which this Act receives the Royal Assent.
(2)Subject to subsection (3), the remaining provisions of this Act come into operation on a day or days to be proclaimed.
(3)If a provision referred to in subsection (2) does not come into operation within a period of 5 months beginning on, and including, the day on which this Act receives the Royal Assent, it comes into operation on the first day after the end of that period.
3Definitions
(1)In this Act—
appropriate place means—
(a)a designated mental health service; or
(b)a residential treatment facility;
* * * * *
* * * * *
authorised psychiatrist has the same meaning as in the Mental Health and Wellbeing Act 2022;
chief psychiatrist has the same meaning as in the Mental Health and Wellbeing Act 2022;
child has the same meaning as in the Youth Justice Act 2024;
conduct includes doing an act and making an omission;
* * * * *
court, except in Part 5A, means Supreme Court or County Court and in section 47 includes Magistrates' Court and Children's Court;
custodial supervision order, except in Part 5A, means a supervision order referred to in section 26(2)(a);
designated mental health service has the same meaning as in section 3(1) of the Mental Health and Wellbeing Act 2022;
disability service provider has the same meaning as in the Disability Act 2006;
domestic partner of a person means—
(a)a person who is in a registered relationship with the person; or
(b)an adult person to whom the person is not married but with whom the person is in a relationship as a couple where one or each of them provides personal or financial commitment and support of a domestic nature for the material benefit of the other, irrespective of their genders and whether or not they are living under the same roof, but does not include a person who provides domestic support and personal care to the person—
(i)for fee or reward; or
(ii)on behalf of another person or an organisation (including a government or government agency, a body corporate or a charitable or benevolent organisation);
extended leave has the meaning given in section 56;
family member of a person means—
(a)a spouse or domestic partner, parent, guardian or sibling of the person; or
(b)a child of the person or of the person's spouse or domestic partner;
federal forensic patient means a forensic patient referred to in paragraph (ad) of the definition of forensic patient in this subsection;
forensic patient means—
(a)a person—
(i)remanded in custody in a designated mental health service; or
(ii)committed to custody in a designated mental health service by a supervision order—
under this Act (other than Part 5A); or
(ab)a person detained in a designated mental health service under section 30(2) or 30A(3); or
(ac)a person deemed to be a forensic patient by section 73E(4) or 73K(8); or
(ad)a person detained in a designated mental health service under section 20BJ(1) or 20BM of the Crimes Act 1914 of the Commonwealth; or
(b)a person who is an international forensic patient; or
* * * * *
forensic resident means a person who is—
(a)remanded in custody in a residential treatment facility (other than under Part 5A); or
(b)committed to custody in a residential treatment facility by a supervision order (other than under Part 5A); or
(c)detained in a residential treatment facility under section 30(2) or 30A(3); or
(d)deemed to be a forensic resident by section 73E(4) or 73K(8); or
(e)transferred from a prison to a residential treatment facility under section 180 of the Disability Act 2006;
investigation, except in Part 5A, means investigation under Part 2;
judicial member of the Panel means a member referred to in section 59(2)(a) or (b);
legal practitioner means an Australian legal practitioner;
limited off-ground leave has the meaning given in section 53;
major review means a review under section 35;
non-custodial supervision order, except in Part 5A, means a supervision order referred to in section 26(2)(b);
offence includes conduct that would, but for the perpetrator's mental impairment or unfitness to be tried, have constituted an offence;
on-ground leave has the meaning given in section 51;
Panelmeans Forensic Leave Panel established by section 59;
parent of a child includes a person who has day to day care and control of the child and with whom the child is ordinarily resident;
police officer has the same meaning as in the Victoria Police Act 2013;
President, except in Part 5A, means President of the Panel;
prison has the same meaning as in the Corrections Act 1986;
registered medical practitioner means a person registered under the Health Practitioner Regulation National Law to practise in the medical profession (other than as a student);
registered psychologist means a person registered under the Health Practitioner Regulation National Law to practise in the psychology profession (other than as a student);
* * * * *
* * * * *
residential treatment facility has the same meaning as it has in section 3(1) of the Disability Act 2006;
Secretary to the Department of Health and Human Services means the Department Head (within the meaning of the Public Administration Act 2004) of the Department of Health and Human Services;
* * * * *
Secure Treatment Order means an Order within the meaning of section 534 of the Mental Health and Wellbeing Act 2022;
special hearing, except in Part 5A, means a hearing under Part 3;
special leave means leave of absence granted under section 50;
spouse of a person means a person to whom the person is married;
supervision order, except in Part 5A, means an order made under section 26;
surroundshas the meaning given in section 52;
victim, in relation to an offence, means a person who suffered injury, loss or damage as a direct result of the offence;
youth justice centre has the same meaning as in the Children, Youth and Families Act 2005;
youth residential centre has the same meaning as in the Children, Youth and Families Act 2005.
(2)For the purposes of the definition of domestic partner in subsection (1)—
(a)registered relationship has the same meaning as in the Relationships Act 2008; and
(b)in determining whether persons who are not in a registered relationship are domestic partners of each other, all the circumstances of their relationship are to be taken into account, including any one or more of the matters referred to in section 35(2) of the Relationships Act 2008 as may be relevant in a particular case; and
(c)a person is not a domestic partner of another person only because they are co-tenants.
4Application to courts and proceedings
(1)Except as provided by sections 5, 5A and 25(1) and Parts 5A, 7A and 7B, this Act applies only in relation to trials of indictable offences in the Supreme Court or the County Court and proceedings ancillary or incidental to, or connected with or arising out of, those trials, including committal proceedings.
(2)If an appeal is made under this Act to the Court of Appeal—
(a)a reference in this Act to the court, in respect of the making or confirming of a supervision order by the Court of Appeal on the appeal, is a reference to the Court of Appeal; and
(b)if the Court of Appeal makes or confirms a supervision order on the appeal, a reference in this Act to the court that made the supervision order is a reference to the court from which the appeal was made to the Court of Appeal.
(3)Subsection (2) does not apply so as to allow a person to appeal to the Court of Appeal against a supervision order made by the Court of Appeal.
5Application to Magistrates' Court
(1)The defence of mental impairment as provided for in section 20(1) and the presumption in section 21(1) apply to summary offences and to indictable offences heard and determined summarily.
(2)If the Magistrates' Court finds a person not guilty because of mental impairment of a summary offence or an indictable offence heard and determined summarily, the Magistrates' Court must discharge the person.
(3)This section does not apply to the Children's Court.
5AApplication to Children's Court
(1)If the Children's Court has jurisdiction to hear and determine an indictable offence, the Children's Court may determine in accordance with Part 5A—
(a)the fitness of an accused to stand trial for the offence; and
(b)a defence of mental impairment raised to the offence.
Note
Section 516 of the Children, Youth and Families Act 2005 sets out the jurisdiction of the Criminal Division of the Children's Court.
(2)The defence of mental impairment as provided for in section 38ZA and the presumption in section 38ZB(1) apply to summary offences and to indictable offences heard and determined summarily in the Children's Court.
(3)If the Children's Court finds a child not guilty because of mental impairment of a summary offence, the Children's Court must discharge the child.
PART 2—UNFITNESS TO STAND TRIAL
Division 1—Jury determination of unfitness to stand trial
5CApplication of this Division
(1)Sections 7(3)(b), 11, 12, 13, 14 and 14A do not apply during the period that Division 2 applies.
(2)This section is repealed on the day that Division 2 of this Part is repealed.
6When is a person unfit 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, the person is or, at some time during the trial, will be—
(a)unable to understand the nature of the charge; or
(b)unable to enter a plea to the charge and to exercise the right to challenge jurors or the jury; or
(c)unable to understand the nature of the trial (namely that it is an inquiry as to whether the person committed the offence); or
(d)unable to follow the course of the trial; or
(e)unable to understand the substantial effect of any evidence that may be given in support of the prosecution; or
(f)unable to give instructions to his or her legal practitioner.
(2)A person is not unfit to stand trial only because he or she is suffering from memory loss.
7Presumptions, standard of proof, etc.
(1)A person is presumed to be fit to stand trial.
(2)The presumption is rebutted only if it is established, on an investigation under this Part, that the person is unfit to stand trial.
(3)The question of a person's fitness to stand trial—
(a)is a question of fact; and
(b)is to be determined on the balance of probabilities by a jury empanelled for that purpose.
(4)If the question of a person's fitness to stand trial is raised by the prosecution or the defence, the party raising it bears the onus of rebutting the presumption of fitness.
(5)If the question is raised by the trial judge, the prosecution has carriage of the matter, but no party bears any onus of proof in relation to it.
8Committals
(1)If the question of the fitness of an accused to stand trial arises in a committal proceeding for an indictable offence—
(a)the committal proceeding must be completed in accordance with Chapter 4 of the Criminal Procedure Act 2009; and
(b)the accused must not be discharged only because the question has been raised; and
(c)if the accused is committed for trial, the question must be reserved for consideration by the trial judge.
(2)Subject to subsection (3), if an accused is committed for trial and the question of his or her fitness to stand trial has been reserved under subsection (1)(c)—
(a)an indictment must be filed in respect of the offence; and
(b)the issue of whether there is a real and substantial question as to the fitness of the accused to stand trial must be determined by the trial judge; and
(c)if the judge determines that there is a real and substantial question, an investigation must be held under this Part—
within 3 months after the committal.
(3)The court before which the accused is to be tried may at any time, whether or not the period referred to in subsection (2) has expired, extend the period for a further period not exceeding 3 months.
(4)The period referred to in subsection (2) may be extended under subsection (3) more than once.
9Reservation of question of fitness to stand trial by court
(1)At any time after an indictment has been filed, if it appears to the court before which the accused is to be tried that there is a real and substantial question as to the fitness of the accused to stand trial, the court must reserve the question of the fitness of the accused to stand trial for investigation under this Part.
(2)At any time during a trial, if it appears to the trial judge that there is a real and substantial question as to the fitness of the accused to stand trial, the judge must adjourn or discontinue the trial and proceed with an investigation under this Part.
(3)Nothing in this Act prevents the question of the fitness of an accused to stand trial from being raised more than once in the same proceeding.
(4)For the purposes of sections 211 and 212 of the Criminal Procedure Act 2009, time ceases to run from the time that the question of the fitness of an accused to stand trial is reserved for investigation until the investigation has been completed.
10Court may make orders pending investigation into fitness
(1)A court that reserves for investigation the question of the fitness of an accused to stand trial may make any one or more of the following orders—
(a)an order granting the accused bail;
(b)subject to subsection (2), an order remanding the accused in custody in an appropriate place for a specified period;
(ba)in the case of an accused who is a child, subject to subsection (2), an order remanding the accused in custody in a youth justice centre or a youth residential centre for a specified period;
(c)subject to subsection (3), an order remanding the accused in custody in a prison for a specified period;
(d)if it is of the opinion that it is in the interests of justice to do so, an order—
(i)that the accused undergo an examination by a registered medical practitioner or registered psychologist; and
(ii)that the results of the examination be put before the court;
(e)any other order the court thinks appropriate.
(2)The court must not make an order remanding an accused in custody in an appropriate place or a youth justice centre or a youth residential centre unless it has received a certificate under section 47 stating that the facilities or services necessary for that order are available.
(3)The court must not make an order remanding an accused in custody in a prison unless satisfied that there is no practicable alternative in the circumstances.
11Procedure on investigation
(1)On an investigation into the fitness of an accused to stand trial—
(a)the court must hear any relevant evidence and submissions put to the court by the prosecution or the defence;
(b)if of the opinion that it is in the interests of justice to do so, the trial judge may—
(i)call evidence on his or her own initiative;
(ii)require the accused to undergo an examination by a registered medical practitioner or registered psychologist;
(iii)require the results of any such examination to be put before the court.
(1A)Nothing in subsection (1) prevents the application of Part 3.10 of the Evidence Act 2008 to an investigation, and for the purposes of the application of Part 3.10 the investigation is taken to be a criminal proceeding.
(1B)Section 232A of the Criminal Procedure Act 2009 applies to an investigation as if the investigation were a trial.
(2)The Juries Act 2000 applies to an investigation as if the investigation were a criminal trial.
(3)At the commencement of the investigation, the judge must explain to the jury—
(a)the reason for the investigation; and
(b)the findings which may be made; and
(c)that the standard of proof required in relation to the fitness of the accused to stand trial is the balance of probabilities.
(4)If the jury finds that the accused is unfit to stand trial, the judge must—
(a)determine, by reference to any relevant evidence and on the balance of probabilities, whether or not the accused is likely to become fit to stand trial within the next 12 months; and
(b)if the judge determines that the accused is likely to become fit within the next 12 months, specify the period by the end of which the accused is likely to be fit to stand trial.
(5)For the purposes of subsection (4) the judge may call further evidence on his or her own initiative.
(6)The jury empanelled to decide the question of the fitness of an accused to stand trial must not decide any other matter in relation to the proceedings for the offence.
12What happens after an investigation?
(1)If the jury finds that the accused is fit to stand trial, the trial must be commenced or resumed in accordance with usual criminal procedures.
(2)If the jury finds that the accused is not fit to stand trial and the judge determines that the accused is likely to become fit within the next 12 months, the judge must adjourn the matter for the period specified under section 11(4)(b) and may—
(a)grant the accused bail; or
(b)subject to subsection (3), remand the accused in custody in an appropriate place for a specified period (not exceeding the period specified under section 11(4)(b)); or
(c)subject to subsection (4), remand the accused in custody in a prison for a specified period (not exceeding the period specified under section 11(4)(b)); or
(d)make any other order the judge thinks appropriate.
(3)The judge must not remand an accused in custody in an appropriate place unless it has received a certificate under section 47 stating that the facilities or services necessary for that order are available.
(4)The judge must not remand an accused in custody in a prison unless it is satisfied that there is no practicable alternative in the circumstances.
(5)If the jury finds that the accused is not fit to stand trial and the judge determines that the accused is not likely to become fit within the next 12 months, the court must proceed to hold a special hearing under Part 3 within 3 months.
13Abridgment of adjournment
(1)At any time during a period of adjournment under section 12(2) the accused or the Director of Public Prosecutions may apply to the court—
(a)for an order that the trial commence or resume, if the accused or the Director of Public Prosecutions is of the opinion that the accused has become fit to stand trial; or
(b)for an order that the court proceed to hold a special hearing, if the accused or the Director of Public Prosecutions is of the opinion that the accused will not become fit to stand trial by the end of the period of 12 months after the first finding of unfitness.
(2)An application under subsection (1) must be accompanied by a report on the mental condition of the accused by a registered medical practitioner or registered psychologist.
(3)On an application under subsection (1) the court must—
(a)dismiss the application; or
(b)if satisfied that the accused has become fit to stand trial, make an order that the trial commence or resume; or
(c)if satisfied that the accused will not become fit to stand trial by the end of the period of 12 months after the first finding of unfitness, make an order that the court proceed to hold a special hearing within 3 months.
14What happens at the end of an adjournment?
(1)At the end of the period of adjournment under section 12(2), the accused is presumed to be fit to stand trial unless a real and substantial question of fitness is raised again.
(2)If a real and substantial question of fitness is raised again, the judge must—
(a)extend the period of adjournment for a further period, but not so that the total period since the first finding of unfitness exceeds 12 months; or
(b)proceed to hold a special hearing under Part 3 within 3 months.
(3)If the judge extends the period of adjournment under subsection (2)(a), the judge may make any order referred to in section 12(2) or vary any order already made under that section (and for that purpose section 12(3) and (4) apply accordingly).
(4)At the end of the period of adjournment—
(a)if the trial of the accused has commenced, it must be resumed as soon as practicable in accordance with usual criminal procedures; or
(b)subject to subsection (5), if the trial has not commenced, it must be commenced within 3 months.
(5)The court before which the accused is to be tried may at any time, whether or not the period referred to in subsection (4)(b) has expired, extend that period for a further period not exceeding 3 months.
(6)The period for commencement of a trial may be extended under subsection (5) more than once.
(7)An extension of time under subsection (5) also serves, if necessary, as an extension of time for the purposes of section 211 or 212 of the Criminal Procedure Act 2009 (as the case may be).
14AAppeal in relation to fitness to stand trial
(1)In a criminal proceeding in the County Court or the Trial Division of the Supreme Court, if the question has arisen whether an accused is unfit to stand trial and on an investigation under this Part a jury finds that the accused is unfit to stand trial, the accused may appeal to the Court of Appeal against the finding on any ground of appeal, with the leave of the Court of Appeal.
(2)An application for leave to appeal under subsection (1) is commenced by filing a notice of application for leave to appeal in accordance with the rules of court within 28 days after the day on which the finding is made or any extension of that period granted under section 76C.
(3)The Registrar of Criminal Appeals of the Supreme Court must provide to the respondent a copy of the notice of application for leave to appeal within 7 days after the day on which the notice of application is filed.
(4)On an appeal under subsection (1), the Court of Appeal must allow the appeal if the appellant satisfies the court that—
(a)the finding of unfitness to stand trial is unreasonable or cannot be supported having regard to the evidence; or
(b)the trial judge made a material error of law; or
(c)for any other reason the court considers that the finding should not stand.
(5)In any other case, the Court of Appeal must dismiss an appeal under subsection (1).
(6)If the Court of Appeal allows an appeal under subsection (1), it must set aside the finding of unfitness to stand trial and either—
(a)refer the matter to the Trial Division of the Supreme Court or to the County Court for trial and the accused may be tried for the offence charged against the accused; or
(b)remit the matter for a rehearing of the investigation under this Part as to whether the accused is fit to stand trial.
(7)Despite subsection (6), if the Court of Appeal allows an appeal under subsection (1) but considers that the accused is unfit to stand trial, it may affirm the finding and refer the matter to the Trial Division of the Supreme Court or to the County Court.
(8)If the Court of Appeal remits a matter under subsection (6)(b)—
(a)it may give directions concerning the manner and scope of the rehearing, including a direction as to whether the rehearing is to be conducted by the same judge or a different judge; and
(b)the court conducting the rehearing, whether constituted by the same judge or a different judge, must hear and determine the matter in accordance with the directions, if any.
(9)On remitting or referring a matter under this section, the Court of Appeal may remand the accused in custody or grant bail to the accused or make any other order that the court considers appropriate for the safe custody of the accused.
Division 2—Determination of unfitness to stand trial by judge alone
14BApplication of this Division
(1)This Division applies from 26 April 2021 until section 10 is substituted.
(2)A provision specified in section 5C does not apply while this Division applies.
14CQuestion of a person's fitness to stand trial
The question of a person's fitness to stand trial is to be determined on the balance of probabilities by the court at an investigation into the fitness of the accused to stand trial.
14DProcedure on investigation
(1)At an investigation into the fitness of an accused to stand trial, the court—
(a)must hear any relevant evidence and submissions put to the court by the prosecution and the defence; and
(b)if of the opinion that it is in the interests of justice to do so, may—
(i)call evidence on its own motion; or
(ii)require the accused to undergo an examination by a registered medical practitioner or registered psychologist; or
(iii)require the results of any such examination to be put before the court.
(2)Nothing in subsection (1) prevents the application of Part 3.10 of the Evidence Act 2008 to an investigation and, for the purposes of Part 3.10 of that Act, theinvestigation is taken to be a criminal proceeding.
(3)Section 232A of the Criminal Procedure Act 2009 applies to an investigation as if the investigation were a trial.
(4)If the court finds that the accused is not fit to stand trial, the court must—
(a)determine, by reference to any relevant evidence and on the balance of probabilities, whether or not the accused is likely to become fit to stand trial within the next 12 months; and
(b)if the court determines that the accused is likely to become fit within the next 12 months, specify the period by the end of which the accused is likely to be fit to stand trial.
(5)For the purposes of subsection (4), the court may call further evidence on its own motion.
14EFindings of investigation into fitness to stand trial
At an investigation into the fitness of an accused to stand trial, the court may find—
(a)the accused is fit to stand trial; or
(b)the accused is not fit to stand trial.
14FWhat happens after an investigation?
(1)If the court finds that the accused is fit to stand trial, the trial must be commenced or resumed in accordance with usual criminal procedures.
(2)If the court finds that the accused is not fit to stand trial but determines that the accused is likely to become fit within the next 12 months, the court must adjourn the matter for the period specified under section 14D(4)(b) and may—
(a)grant the accused bail; or
(b)subject to subsection (3), remand the accused in custody in an appropriate place for a specified period (not exceeding the period specified under section 14D(4)(b)); or
(c)subject to subsection (4), remand the accused in custody in a prison for a specified period (not exceeding the period specified under section 14D(4)(b)); or
(d)make any other order the court thinks appropriate.
(3)The court must not remand an accused in custody in an appropriate place unless it has received a certificate under section 47 stating that the facilities or services necessary for that order are available.
(4)The court must not remand an accused in custody in a prison unless it is satisfied that there is no practicable alternative in the circumstances.
(5)If the court finds that the accused is not fit to stand trial and determines that the accused is not likely to become fit within the next 12 months, the court must hold a special hearing under Part 3 within 3 months and may—
(a)either—
(i)grant the accused bail; or
(ii)subject to subsections (3) and (4), remand the accused in custody as described in subsection (2)(b) or (c); and
(b)make any other order the court thinks appropriate.
14GAbridgment of adjournment
(1)At any time during a period of adjournment under section 14F(2), the accused or the Director of Public Prosecutions may apply to the court—
(a)for an order that the trial commence or resume, if the accused or the Director of Public Prosecutions is of the opinion that the accused has become fit to stand trial; or
(b)for an order that the court proceed to hold a special hearing, if the accused or the Director of Public Prosecutions is of the opinion that the accused will not become fit to stand trial by the end of the period of 12 months after the first finding of unfitness.
(2)An application under subsection (1) must be accompanied by a report on the mental condition of the accused by a registered medical practitioner or registered psychologist.
(3)On an application under subsection (1) the court must—
(a)dismiss the application; or
(b)if satisfied that the accused has become fit to stand trial, make an order that the trial commence or resume; or
(c)if satisfied that the accused will not become fit to stand trial by the end of the period of 12 months after the first finding of unfitness, make an order that the court proceed to hold a special hearing within 3 months.
14HWhat happens at the end of an adjournment?
(1)At the end of the period of adjournment under section 14F(2), the accused is presumed to be fit to stand trial unless a real and substantial question of fitness is raised again.
(2)If a real and substantial question of fitness is raised again, the court must—
(a)extend the period of adjournment for a further period, but not so that the total period since the first finding of unfitness exceeds 12 months; or
(b)proceed to hold a special hearing under Part 3 within 3 months.
(3)If the court extends the period of adjournment, the court may make any order referred to in section 14F(2) or vary any order already made under that section and for that purpose section 14F(3) and (4) apply accordingly.
(4)At the end of the period of adjournment—
(a)if the trial of the accused has commenced, it must be resumed as soon as practicable in accordance with usual criminal procedures; or
(b)subject to subsection (5), if the trial has not commenced, it must be commenced within 3 months.
(5)The court before which the accused is to be tried may at any time, whether or not the period referred to in subsection (4)(b) has expired, extend that period for a further period not exceeding 3 months.
(6)The period for commencement of a trial may be extended under subsection (5) more than once.
(7)An extension of time under subsection (5) also serves, if necessary, as an extension of time for the purposes of section 211 or 212 of the Criminal Procedure Act 2009 (as the case may be).
14IAppeal in relation to fitness to stand trial
(1)In a criminal proceeding in the County Court or the Trial Division of the Supreme Court, if the question has arisen whether an accused is unfit to stand trial and on an investigation under this Division a court finds that the accused is unfit to stand trial, the accused may appeal to the Court of Appeal against the finding on any ground of appeal, with leave of the Court of Appeal.
(2)An application for leave to appeal under subsection (1) is commenced by filing a notice of application for leave to appeal in accordance with the rules of court within 28 days after the day on which the finding is made or any extension of that period granted under section 76C.
(3)The Registrar of Criminal Appeals of the Supreme Court must provide to the respondent a copy of the notice of application for leave to appeal within 7 days after the day on which the notice of application is filed.
(4)On an appeal under subsection (1), the Court of Appeal must allow the appeal if the appellant satisfies the court that—
(a)the finding of unfitness to stand trial is unreasonable or cannot be supported having regard to the evidence; or
(b)the trial judge made a material error of law; or
(c)for any other reason the court considers that the finding should not stand.
(5)In any other case, the Court of Appeal must dismiss an appeal under subsection (1).
(6)If the Court of Appeal allows an appeal under subsection (1), it must set aside the finding of unfitness to stand trial and either—
(a)refer the matter to the Trial Division of the Supreme Court or to the County Court for trial and the accused may be tried for the offence charged against the accused; or
(b)remit the matter for a rehearing of the investigation under this Division as to whether the accused is fit to stand trial.
(7)Despite subsection (6), if the Court of Appeal allows an appeal under subsection (1) but considers that the accused is unfit to stand trial, it may affirm the finding and refer the matter to the Trial Division of the Supreme Court or to the County Court.
(8)If the Court of Appeal remits a matter under subsection (6)(b)—
(a)it may give directions concerning the manner and scope of the rehearing, including a direction as to whether the rehearing is to be conducted by the same judge or a different judge; and
(b)the court conducting the rehearing, whether constituted by the same judge or a different judge, must hear and determine the matter in accordance with the directions, if any.
(9)On remitting or referring a matter under this section, the Court of Appeal may remand the accused in custody or grant bail to the accused or make any other order that the court considers appropriate for the safe custody of the accused.
14JApplication of Juries Act 2000
For the purposes of the definition of criminal trial in section 3 of the Juries Act 2000, criminal trial does not include an investigation conducted in accordance with this Division.
14KRepeal of this Division
This Division is repealed on the day that section 10 is substituted.
PART 3—SPECIAL HEARINGS
15Purpose of special hearings
The purpose of a special hearing is to determine whether, on the evidence available, the accused—
(a)is not guilty of the offence; or
(b)is not guilty of the offence because of mental impairment; or
(c)committed the offence charged or an offence available as an alternative.
16Procedure at special hearings
(1)A special hearing is to be conducted as nearly as possible as if it were a criminal trial and, for that purpose, the Juries Act 2000 applies, subject to this section.
(2)Without limiting subsection (2), at a special hearing—
(a)the accused must be taken to have pleaded not guilty to the offence; and
(b)the legal representative (if any) of the accused may exercise the rights of the accused to challenge jurors (either for cause or peremptorily) or the jury;
(c)the accused may raise any defence that could be raised if the special hearing were a criminal trial, including the defence of mental impairment;
(d)the rules of evidence apply;
(e)section 197 of the Criminal Procedure Act 2009 (Order for legal representation for accused) applies as if the special hearing were a criminal trial;
(f)any alternative verdict that would be available if the special hearing were a criminal trial is available to the jury.
Note
At a special hearing the judge may give directions under section 232A of the Criminal Procedure Act 2009. That section enables the judge, with the consent of the prosecution and the accused, to direct that expert witnesses give their evidence concurrently or consecutively. The judge may direct that this evidence be given at any stage of the special hearing, including before the prosecution has closed its case.
(3)At the commencement of a special hearing, the judge must explain to the jury—
(a)that the accused is unfit to be tried in accordance with the usual procedures of a criminal trial; and
(b)the meaning of being unfit to stand trial; and
(c)the purpose of the special hearing; and
(d)the findings that are available; and
(e)the standard of proof required for those findings.
17Findings at special hearings
(1)The following findings are available to the jury at a special hearing—
(a)not guilty of the offence charged;
(b)not guilty of the offence because of mental impairment;
(c)the accused committed the offence charged or an offence available as an alternative.
(2)To make a finding under subsection (1)(c) the jury must be satisfied beyond reasonable doubt, on the evidence available, that the accused committed the offence charged or an offence available as an alternative.
18Effect of findings
(1)If a jury makes a finding under section 17(1)(a), the person is to be taken for all purposes to have been found not guilty at a criminal trial.
(2)A finding under section 17(1)(b) is to be taken for all purposes to be a finding at a criminal trial of not guilty because of mental impairment.
Note
Section 24AA provides for appeals against a verdict of not guilty because of mental impairment.
(3)A finding under section 17(1)(c)—
(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)constitutes a bar to further prosecution in respect of the same circumstances; and
(c)is subject to appeal in the same manner as if the person had been convicted of the offence in a criminal trial.
(4)If a jury makes a finding under section 17(1)(c)[1], the judge must—
(a)declare that the person is liable to supervision under Part 5; or
(b)order the person to be released unconditionally[2].
19Court may make orders pending making of supervision order
(1)If the judge declares a person liable to supervision, the judge may make any one or more of the following orders pending the making of a supervision order—
(a)an order granting the person bail;
(b)subject to subsection (2), an order remanding the person in custody in an appropriate place;
(c)subject to subsection (3), an order remanding the person in custody in a prison;
(d)if he or she is of the opinion that it is in the interests of justice to do so, an order—
(i)that the person undergo an examination by a registered medical practitioner or registered psychologist; and
(ii)that the results of the examination be put before the court;
(e)any other order the judge thinks appropriate.
(2)The judge must not make an order remanding a person in custody in an appropriate place unless the court has received a certificate under section 47 stating that the facilities or services necessary for that order are available.
(3)The judge must not make an order remanding a person in custody in a prison unless satisfied that there is no practicable alternative in the circumstances.
19AAppeal against unconditional release
(1)The Director of Public Prosecutions may appeal to the Court of Appeal against an order for unconditional release under section 18(4)(b) if he or she considers that—
(a)the order should not have been made; and
(b)an appeal should be brought in the public interest.
(1A)An appeal under subsection (1) is commenced by filing a notice of appeal in accordance with the rules of court within 28 days after the day on which the order is made or any extension of that period granted under section 76C.
(1B)A notice of appeal under subsection (1A) must be signed by the Director of Public Prosecutions personally.
(1C)A copy of the notice of appeal must be served personally on the respondent in accordance with section 391 of the Criminal Procedure Act 2009 within 7 days after the day on which the notice of appeal is filed.
(1D)The Director of Public Prosecutions must provide a copy of the notice of appeal to the legal practitioner who last represented the respondent in the special hearing, if that legal practitioner can reasonably be identified.
(2)On an appeal under subsection (1), the Court of Appeal may—
(a)confirm the order; or
(b)set aside the order and by order declare that the person is liable to supervision under Part 5.
(3)If the Court of Appeal declares a person liable to supervision, the Court of Appeal may—
(a)remit the matter, with or without directions, to the court that made the order for unconditional release; or
(b)make a supervision order in respect of the person.
(4)If the Court of Appeal remits a matter to a court under subsection (3)(a), that court must make a supervision order in respect of the person in accordance with this Act and any directions given by the Court of Appeal.
(5)The Court of Appeal may make any order that the judge could have made under section 19 pending the making of a supervision order in respect of the person.
PART 4—DEFENCE OF MENTAL IMPAIRMENT
20Defence of mental impairment
(1)The defence of mental impairment is established for a person charged with an offence if, at the time of engaging in conduct constituting the offence, the person was suffering from a mental impairment that had the effect that—
(a)he or she did not know the nature and quality of the conduct; or
(b)he or she did not know that the conduct was wrong (that is, he or she could not reason with a moderate degree of sense and composure about whether the conduct, as perceived by reasonable people, was wrong).
(2)If the defence of mental impairment is established, the person must be found not guilty because of mental impairment.
21Presumptions, standard of proof, etc.
(1)A person is presumed not to have been suffering from a mental impairment having the effect referred to in section 20(1) until the contrary is proved.
(2)The question whether a person was suffering from a mental impairment having the effect referred to in section 20(1)—
(a)is a question of fact; and
(b)subject to subsection (4), is to be determined by a jury on the balance of probabilities.
(3)If the defence of mental impairment is raised by the prosecution or the defence, the party raising it bears the onus of rebutting the presumption.
(4)If a person is charged with an indictable offence and, before the empanelment of a jury, the prosecution and the defence agree that the proposed evidence establishes the defence of mental impairment, the trial judge may hear the evidence and—
(a)if the trial judge is satisfied that the evidence establishes the defence of mental impairment, may direct that a verdict of not guilty because of mental impairment be recorded; or
(b)if the trial judge is not so satisfied, must direct that the person be tried by a jury.
22When may the question of mental impairment be raised?
(1)The question of mental impairment may be raised at any time during a trial by the defence or, with the leave of the trial judge, by the prosecution.
(2)If there is admissible evidence that raises the question of mental impairment and a jury has been empanelled—
(a)the judge must direct the jury to consider the question and explain to the jury the findings which may be made and the legal consequences of those findings; and
(b)if the jury finds the accused not guilty, it must specify in its verdict whether or not it so finds because of mental impairment.
(3)An accused must not be discharged in a committal proceeding only because the defence of mental impairment has been raised.
23Effect of finding of not guilty because of mental impairment
If a person is found not guilty because of mental impairment, the court must—
(a)declare that the person is liable to supervision under Part 5; or
(b)order the person to be released unconditionally[3].
24Court may make orders pending making of supervision order
(1)If the court declares a person liable to supervision, the court may make any one or more of the following orders pending the making of a supervision order—
(a)an order granting the person bail;
(b)subject to subsection (2), an order remanding the person in custody in an appropriate place;
(c)subject to subsection (3), an order remanding the person in custody in a prison;
(d)if it is of the opinion that it is in the interests of justice to do so, an order—
(i)that the person undergo an examination by a registered medical practitioner or registered psychologist; and
(ii)that the results of the examination be put before the court;
(e)any other order the court thinks appropriate.
(2)The court must not make an order remanding a person in custody in an appropriate place unless the court has received a certificate under section 47 stating that the facilities or services necessary for that order are available.
(3)The court must not make an order remanding a person in custody in a prison unless satisfied that there is no practicable alternative in the circumstances.
24AA Appeal against mental impairment verdict
(1)In a criminal proceeding in the County Court or the Trial Division of the Supreme Court, if a verdict of not guilty because of mental impairment is recorded against a person, the person may appeal to the Court of Appeal against the verdict on any ground of appeal, with the leave of the Court of Appeal.
(2)An application for leave to appeal under subsection (1) is commenced by filing a notice of application for leave to appeal in accordance with the rules of court within 28 days after the day on which the verdict is recorded or any extension of that period granted under section 76C.
(3)The Registrar of Criminal Appeals of the Supreme Court must provide to the respondent a copy of the notice of application for leave to appeal within 7 days after the day on which the notice of application is filed.
(4)On an appeal under subsection (1), the Court of Appeal must allow the appeal if the appellant satisfies the court that—
(a)the verdict of the jury is unreasonable or cannot be supported having regard to the evidence; or
(b)as a result of an error or an irregularity in, or in relation to, the trial there has been a substantial miscarriage of justice; or
(c)for any other reason there has been a substantial miscarriage of justice.
(5)Despite subsection (4), the Court of Appeal may dismiss an appeal that would otherwise be allowed under that subsection if—
(a)none of the grounds for allowing the appeal relates to the issue of the mental impairment of the appellant; and
(b)the court considers that, but for the mental impairment of the appellant, the proper verdict would have been that the appellant was guilty of an offence other than the offence charged.
(6)In any other case, the Court of Appeal must dismiss an appeal under subsection (1).
(7)If the Court of Appeal—
(a)allows an appeal under subsection (1) on a ground that the verdict of not guilty because of mental impairment ought not to stand; and
(b)considers that the proper verdict would have been guilty of an offence, whether the offence charged or an offence available as an alternative verdict—
the Court of Appeal must substitute for the verdict a verdict of guilty of that offence and may make any order, or exercise any power, that the court from which the appeal was brought could have made or exercised.
(8)Subject to subsection (7), if the Court of Appeal allows an appeal under subsection (1), it must set aside the verdict and either—
(a)enter a judgment and verdict of acquittal; or
(b)order a new trial.
(9)If the Court of Appeal orders a new trial, it may make any order referred to in section 24(1)(a), (b), (c) or (e) pending the new trial.
24AAppeal against unconditional release
(1)The Director of Public Prosecutions may appeal to the Court of Appeal against an order for unconditional release under section 23(b) if he or she considers that—
(a)the order should not have been made; and
(b)an appeal should be brought in the public interest.
(1A)An appeal under subsection (1) is commenced by filing a notice of appeal in accordance with the rules of court within 28 days after the day on which the order is made or any extension of that period granted under section 76C.
(1B)A notice of appeal under subsection (1A) must be signed by the Director of Public Prosecutions personally.
(1C)A copy of the notice of appeal must be served personally on the respondent in accordance with section 391 of the Criminal Procedure Act 2009 within 7 days after the day on which the notice of appeal is filed.
(1D)The Director of Public Prosecutions must provide a copy of the notice of appeal to the legal practitioner who last represented the respondent in the proceeding to which the appeal relates, if that legal practitioner can reasonably be identified.
(2)On an appeal under subsection (1), the Court of Appeal may—
(a)confirm the order; or
(b)set aside the order and by order declare that the person is liable to supervision under Part 5.
(3)If the Court of Appeal declares a person liable to supervision, the Court of Appeal may—
(a)remit the matter, with or without directions, to the court that made the order for unconditional release; or
(b)make a supervision order in respect of the person.
(4)If the Court of Appeal remits a matter to a court under subsection (3)(a), that court must make a supervision order in respect of the person in accordance with this Act and any directions given by the Court of Appeal.
(5)The Court of Appeal may make any order that the court could have made under section 24 pending the making of a supervision order in respect of the person.
25Abrogation of defence of insanity
(1)The common law defence of insanity is abrogated.
(2)A jury is not entitled in any criminal trial to return a verdict of not guilty on account of insanity.
PART 5—DISPOSITION OF PEOPLE DECLARED TO BE LIABLE TO SUPERVISION
26Supervision orders
(1)If a court declares that a person is liable to supervision under this Part, the court must make a supervision order in respect of the person[4].
(2)A supervision order may—
(a)commit the person to custody (custodial supervision order)—
(i)subject to subsection (3), in an appropriate place; or
(ii)subject to subsection (4), in a prison; or
(b)release the person on conditions decided by the court and specified in the order (non‑custodial supervision order).
(3)The court must not make a supervision order—
(a)committing a person to custody in an appropriate place; or
(b)providing for a person to receive services in an appropriate place or from a disability service provider or the Secretary to the Department of Health and Human Services—
unless it has received a certificate under section 47 stating that the facilities or services necessary for the order are available.
(4)The court must not make a supervision order committing a person to custody in a prison unless it is satisfied that there is no practicable alternative in the circumstances.
* * * * *
(8)A person who is detained in custody in a designated mental health service under a supervision order is deemed to be in the custody of the Secretary to the Department of Health and Human Services.
(9)A person who is detained in custody in a residential treatment facility under a supervision order is deemed to be in the custody of the Secretary to the Department of Health and Human Services.
Note
Section 6A of the Corrections Act 1986 deems a person in custody in a prison to be in the custody of the Secretary to the Department of Justice andRegulation.
27How long does a supervision order last?
(1)A supervision order is for an indefinite term.
(2)When making a supervision order, the court may direct that the matter be brought back to the court for review at the end of the period specified by the court.
Note
The court's powers on review are contained in section 32 (for custodial supervision orders) and section 33 (for non‑custodial supervision orders).
28Nominal term of supervision order
(1)The court must set a nominal term of a supervision order in accordance with the following table—
Offence person found not guilty of because of mental impairment or found at special hearing to have committed
Nominal term(a) murder or treason
25 years
(b) a serious offence (within the meaning of the Sentencing Act 1991) other than—
(i) murder; or
(ii) an offence against section 20 of the Crimes Act 1958 (threats to kill)
a period equivalent to the maximum term of imprisonment available for the offence
(c) any other offence for which there is a statutory maximum term of imprisonment
a period equivalent to half the maximum term of imprisonment available for the offence
(d) any other offence punishable by imprisonment but for which there is no statutory maximum term
a period specified by the court
(2)If a person—
(a)is found not guilty because of mental impairment of more than one offence; or
(b)is found at a special hearing to have committed more than one offence—
the nominal term must be calculated by reference to the offence that carries the longest maximum term of imprisonment.
(3)For the purpose of subsection (2), the maximum term of imprisonment—
(a)for murder or treason is to be taken to be 25 years;
(b)for any other offence punishable by imprisonment for which there is no statutory maximum term, is a period specified by the court.
(4)In setting a nominal term for a supervision order, the court must declare the day from which the nominal term runs.
(5)For the purpose of declaring a day under subsection (4), the court may take into account any period of time during which the person subject to the order was held in custody or detained in an appropriate place in relation to proceedings for the offence which led to the making of the supervision order or proceedings arising from those proceedings (including proceedings under this Act and appeals).
28AAppeal against supervision order
(1)A person in respect of whom a supervision order is made may appeal to the Court of Appeal against the supervision order.
(2)The Director of Public Prosecutions, the Attorney‑General or the Secretary to the Department of Health and Human Services may appeal to the Court of Appeal against a supervision order if he or she considers that—
(a)a different supervision order should have been made; and
(b)an appeal should be brought in the public interest.
(2A)An appeal under this section is commenced by filing a notice of appeal in accordance with the rules of court within 28 days after the day on which the order is made or any extension of that period granted under section 76C.
(2B)If the appeal is commenced by a person in respect of whom a supervision order is made, the Registrar of Criminal Appeals of the Supreme Court must provide to the respondent a copy of the notice of appeal within 7 days after the day on which the notice of appeal is filed.
(2C)If the appeal is commenced by the Secretary to the Department of Health and Human Services, the Director of Public Prosecutions or the Attorney-General—
(a)the notice of appeal must be signed by that person personally; and
(b)a copy of the notice of appeal must be served personally on the respondent in accordance with section 391 of the Criminal Procedure Act 2009 within 7 days after the day on which the notice of appeal is filed; and
(c)that person must provide a copy of the notice of appeal to the legal practitioner who last represented the respondent in the proceeding when the supervision order was made, if that legal practitioner can reasonably be identified.
(3)On an appeal under this section, the Court of Appeal may—
(a)confirm the supervision order; or
(b)set aside the supervision order and make another supervision order in substitution for it; or
(c)set aside the supervision order and remit the matter, with or without directions, to the court that made it; or
(d)set aside the supervision order and order the person who was subject to the supervision order to be released unconditionally.
(4)If the Court of Appeal remits a matter to a court under subsection (3)(c), that court must make another supervision order in accordance with this Act and any directions given by the Court of Appeal.
(5)The Court of Appeal may make any one or more of the following orders pending the making of a supervision order in respect of a person under this section—
(a)an order granting the person bail;
(b)subject to subsection (6), an order remanding the person in custody in an appropriate place;
(c)subject to subsection (7), an order remanding the person in custody in a prison;
(d)if it is of the opinion that it is in the interests of justice to do so, an order—
(i)that the person undergo an examination by a registered medical practitioner or registered psychologist; and
(ii)that the results of the examination be put before the court that is to make the supervision order;
(e)any other order the court thinks appropriate.
(6)The Court of Appeal must not make an order remanding a person in custody in an appropriate place unless the Court of Appeal has received a certificate under section 47 stating that the facilities or services necessary for that order are available.
(7)The Court of Appeal must not make an order remanding a person in custody in a prison unless satisfied that there is no practicable alternative in the circumstances.
29Non-compliance with non-custodial supervision order
(1)A person having the supervision of a person under a non-custodial supervision order (the supervisor), the Secretary to the Department of Health and Human Services may apply to the court that made the order for a variation of the order if it appears to the supervisor, the Secretary to the Department of Health and Human Services that the person subject to the order has failed to comply with it.
* * * * *
(3)The court may order that a warrant to arrest be issued against the person subject to the order if he or she does not attend before the court on the hearing of the application.
(4)If the court is satisfied by evidence on oath or by affirmation or by affidavit, or by the admission of the person subject to the order that the person has failed to comply with the order, the court must, by order—
(a)confirm the order; or
(b)vary the conditions of the order; or
(c)vary the order to a custodial supervision order.
(5)If the court varies the order to a custodial supervision order before the end of the nominal term, that nominal term continues to run.
* * * * *
30Emergency power of apprehension
(1)A person subject to a non-custodial supervision order may be apprehended by an appropriate person if the appropriate person reasonably believes—
(a)that the person subject to the order has failed to comply with it; and
(b)that the safety of the person subject to the order or members of the public will be seriously endangered if the person is not apprehended.
(2)Subject to subsection (4), a person who is apprehended under subsection (1) is to be taken and detained in an appropriate place and treated or provided with services, if necessary, for his or her condition.
(3)For the purpose of apprehending a person and taking them to an appropriate place, the appropriate person may with such assistance as is required and such force as may be reasonably necessary—
(a)enter any premises in which he or she has reasonable grounds for believing that the person to be apprehended may be found; and
(b)if necessary to enable that person to be so apprehended and taken safely, use such restraint as may be reasonably necessary.
(4)A person who is apprehended under this section must be released from detention within 48 hours unless, within that period, an application is made under section 29(1) for variation of the person's supervision order.
(5)The court must hear an application referred to in subsection (4) as soon as possible.
(6)In this section—
appropriate person, in relation to a person subject to a supervision order, means—
(a)a person having supervision of the person under the order; or
(b)a police officer; or
(c)an ambulance officer; or
(d)a person who is a member of a class prescribed for the purposes of this section.
30AWarrant to arrest person breaching non-custodial supervision order who leaves Victoria
(1)If at any time it appears to a person having supervision of a person under a non-custodial supervision order, the Secretary to the Department of Health and Human Services that the person subject to the order—
(a)has failed to comply with the order; and
(b)is no longer in Victoria—
the person having supervision, the Secretary to the Department of Health and Human Services may apply to the Supreme Court, County Court or Magistrates' Court for a warrant to arrest the person subject to the order.
(2)If the court to which the application is made is satisfied by evidence on oath or by affirmation or by affidavit, of the matters specified in paragraphs (a) and (b) of subsection (1), the court may order that a warrant to arrest be issued against the person subject to the order.
(3)When a person arrested under a warrant issued under this section is returned to Victoria, he or she is to be taken to and detained in an appropriate place and treated or provided with services, if necessary, for his or her condition.
(4)However, the person must be released from detention within 48 hours unless, within that period, an application is made under section 29(1) for variation of the person's supervision order.
(5)The court to which an application referred to in subsection (4) is made must hear it as soon as possible.
30BWarrant to arrest person subject to custodial supervision order who leaves Victoria
(1)If at any time it appears to a person having the supervision of a forensic patient under a custodial supervision order or to the Secretary to the Department of Health and Human Services that the forensic patient subject to the custodial supervision order—
(a)is absent without leave from a designated mental health service; and
(b)is no longer in Victoria—
the person having supervision or the Secretary to the Department of Health and Human Services may apply to the Supreme Court, County Court or Magistrates' Court for a warrant to arrest the patient.
(1A)If at any time it appears to the Secretary to the Department of Health and Human Services that a federal forensic patient—
(a)is absent without leave from a designated mental health service; and
(b)is no longer in Victoria—
the Secretary to the Department of Health and Human Services may apply to the Supreme Court, County Court or Magistrates' Court for a warrant to arrest that patient.
(1B)If at any time it appears to the Secretary to the Department of Health and Human Services that a forensic resident subject to a custodial supervision order—
(a)is absent without leave from a residential treatment facility; and
(b)is no longer in Victoria—
the Secretary to the Department of Health and Human Services may apply to the Supreme Court, County Court or Magistrates' Court for a warrant to arrest that resident.
(2)If the court to which the application is made is satisfied by evidence on oath or by affirmation or by affidavit, of the matters specified in paragraphs (a) and (b) of subsection (1) or (1A), the court may order that a warrant to arrest be issued against the person subject to the order.
(3)When a person arrested under a warrant issued under this section is returned to Victoria, he or she is to be returned to the designated mental health service or residential treatment facility from which he or she was absent without leave.
31Application for variation or revocation of supervision order
(1)Any of the following may apply to the court that made a supervision order for a variation of the order (in the case of a custodial supervision order) or a variation or revocation of the order (in the case of a non-custodial supervision order)—
(a)the person subject to the order;
(b)a person having the custody, care, control or supervision of that person;
(c)the Director of Public Prosecutions;
(d)the Attorney-General.
(2)If the court refuses an application under this section by a person who is subject to a custodial supervision order, a later application cannot be made by that person for 3 years or such lesser period as the court directs.
* * * * *
32Variation of custodial supervision orders
(1)On an application under section 31 for variation of a custodial supervision order or on a review of a custodial supervision order directed under section 27(2) or on a further review of a custodial supervision order directed under subsection (5) or section 33(2), the court must, by order—
(a)confirm the order; or
(b)vary the place of custody; or
(c)subject to this section, vary the order to a non-custodial supervision order.
(2)The court must not vary a custodial supervision order to a non-custodial supervision order during the nominal term unless satisfied on the evidence available that the safety of the person subject to the order or members of the public will not be seriously endangered as a result of the release of the person on a non-custodial supervision order.
(3)In the case of a forensic patient or forensic resident—
(a)the court must not vary a custodial supervision order to a non-custodial supervision order (whether during or after the nominal term) unless the forensic patient or forensic resident has completed a period of at least 12 months extended leave granted by the court under section 57; and
(b)in deciding an application to vary a custodial supervision order to a non-custodial supervision order, the court must take into account whether or not the forensic patient or forensic resident has complied with any conditions of their extended leave.
(2)The member of the Panel referred to in subclause (1)(c) or (d) must not be a person who is primarily responsible for the treatment or care of the applicant for leave.
(3)The members to constitute the Panel for a hearing are to be selected by the President.
2Procedure of the Panel
(1)Unless clause 3 applies, a matter arising for determination by the Panel in a hearing is to be determined by the opinions of a majority of the members constituting the Panel for the purposes of that hearing, but if the Panel is evenly divided, the matter is to be determined by the opinion of the chairperson.
(2)An act or decision of the Panel is not invalidated only because—
(a)of a defect or irregularity—
(i)in the appointment of a member; or
(ii)in the selection of a member for a particular hearing; or
(b)in the case of an acting member, the occasion for acting had not arisen or had ceased.
(3)Subject to this Act, the procedure of the Panel is in its discretion.
3Determination of questions of law
(1)A question of law that arises in proceedings before the Panel is to be decided by the chairperson.
(2)The Panel, of its own motion or at the request of a party, may refer a question of law arising in a proceeding before it to the Court of Appeal for decision.
(3)A question of law may be referred under subclause (2) only if the chairperson of the Panel agrees to the referral.
(4)If a question of law is referred under subclause (2), the Panel must not, in the proceeding—
(a)give a decision to which the question is relevant while the referral is pending; or
(b)proceed in a manner or make a decision that is inconsistent with the opinion of the Court of Appeal.
4Directions as to arrangement of business and procedure
The President, after consultation with the other members of the Panel, may give directions as to—
(a)the arrangement of the business of the Panel; and
(b)the procedure of the Panel.
5Sittings of the Panel
(1)The Panel is to sit—
(a)at such times as the President determines; and
(b)at the place where the applicant for leave is detained, unless the President determines otherwise.
(2)The President may determine that there is to be a special sitting of the Panel in the case of an emergency.
6Powers of Panel
The Panel has power to—
(a)order that any person who in the opinion of the Panel ought to be a party in any proceedings be added as a party or substituted for a party; and
(b)order that any person who in the opinion of the Panel is not a proper or a necessary party in any proceedings cease to be a party; and
(c)adjourn the hearing of any proceedings—
(i)to any time and place; and
(ii)for any purpose; and
(iii)on any terms as to costs or otherwise—
as the Panel considers necessary or just in the circumstances; and
(d)reserve its decision in any proceedings to a date to be advised by the Panel; and
(e)make an order that operates at a date after the making of the order as is specified in the order.
7Reasons to be signed
(1)Written reasons for determinations of the Panel (if requested under section 66) must be signed by the members constituting the Panel that made the determination.
(2)If one or more members of the Panel are unavailable for the purpose of signing the reasons, it is sufficient if one of the members signs the reasons.
(3)The production in any proceedings of a document purporting to be a copy of reasons for a determination made by the Panel and purporting to be signed by a member or members of the Panel is conclusive evidence of the reasons for the determination and of the due making and existence of the determination.
8Power to amend determination
(1)The Panel may at any time make a determination correcting a determination made by it if there is in the determination—
(a)a clerical mistake or an error arising from any accidental slip or omission; or
(b)any evident material miscalculation of figures or an evident material mistake in the description of any person, thing or property referred to in the determination.
(2)A determination under subclause (1) may be made on the application of any person or on the Panel's own initiative.
SCHEDULE 3––SAVINGS AND TRANSITIONAL PROVISIONS
Section 89
1Definitions
In this Schedule—
commencement day means the day on which this Schedule comes into operation;
existing detainee means a person who, immediately before the commencement day, was subject to an order under section 393 or 420 of the Crimes Act 1958 (whether by the court or by the Governor).
2Existing detainees
(1)Each existing detainee is, on and after the commencement day, deemed to be subject to a custodial supervision order under this Act.
(2)The nominal term of the custodial supervision order is to be determined in accordance with section 28 as if the maximum penalty for the offence which led to the person becoming an existing detainee were the maximum penalty attaching to that offence on the commencement day.
(3)If the offence referred to in subsection (2) no longer exists—
(a)the Supreme Court, on application by the existing detainee or the Director of Public Prosecutions, must determine whether there is an existing offence, as at the commencement day, with which the existing detainee could have been charged had it existed at the time of the original charge; and
(b)if there is such an offence, the nominal term is to be determined by reference to the maximum penalty for that offence as at the commencement day.
(4)The nominal term runs from the day on which the existing detainee was made subject to the order under section 393 or 420 of the Crimes Act 1958.
(5)If the nominal term has expired, a major review must be held within 6 months after the commencement day.
3Leave
(1)Subject to this clause, an existing detainee who, immediately before the commencement day, was on leave from the place of detention that corresponds to leave that may be granted under Part 7 is deemed to be on the corresponding leave as if granted under that Part, and any conditions to which the leave was subject immediately before the commencement day continue to apply.
(2)Subclause (1) applies for the period of 12 months commencing on, and including, the commencement day.
(3)For the purposes of this clause, leave granted before the commencement day corresponds to leave that may be granted under Part 7 if it is substantially similar to that leave.
(4)Sections 53 and 54, as in force immediately before the commencement of sections 24 and 25 of the Forensic Health Legislation (Amendment) Act 2002, continue to apply in relation to any limited off-ground leave granted before that commencement, until the expiry of that leave.
4Revocation of supervision order
(1)Despite anything to the contrary in Part 5, an existing detainee who has been, or is deemed to have been, on extended leave for a period of at least 12 months may apply to the court that made the original order under which he or she was detained for revocation of his or her supervision order.
(2)On an application under subclause (1) the court may revoke the supervision order if satisfied on the evidence available that the safety of the existing detainee or members of the public will not be seriously endangered as a result of the revocation of the order.
(3)In considering an application for revocation of a supervision order in respect of an existing detainee the court may take into account any reports on the existing detainee made by, or submitted to, the Adult Parole Board before the commencement day.
5Persons released under section 498 of Crimes Act 1958
Despite the repeal of section 498 of the Crimes Act 1958, any conditions imposed on a person under that section that were in force immediately before the commencement day continue to apply on and after the commencement day.
6Unfitness to stand trial
(1)Part 2 applies with respect to an offence that is alleged to have been committed, whether before, on or after the commencement day.
(2)If a person has been found unfit to stand trial but no order has been made in respect of the person before the commencement day, the court must proceed to hold a special hearing under Part 3 in respect of the person.
7Mental impairment and insanity
(1)Despite section 25, the defence of insanity continues to apply with respect to any offence alleged to have been committed before the commencement day.
(2)If a jury returns a verdict of not guilty on account of insanity in relation to a person charged with an offence alleged to have been committed before the commencement day, that verdict is to be taken for all purposes to be a finding of not guilty because of mental impairment under Part 4.
8Periodic major reviews
Section 35, as amended by section 14 of the Forensic Health Legislation (Amendment) Act 2002, applies to a supervision order made before, on or after the commencement of that section 14.
9Notification requirements
Sections 38A, 38B, 38C and 38E, as inserted by section 17 of the Forensic Health Legislation (Amendment) Act 2002, apply to—
(a)applications that are made after the commencement of that section 17; and
(b)reviews that are listed by the court after the commencement of that section 17.
10Appeals
(1)An order for unconditional release can be appealed under section 19A or 24A (as the case may be) whether the order was made before or after the commencement of that section, unless—
(a)the order had been appealed before that commencement; or
(b)any time limit for appealing the order had expired before that commencement.
(2)A supervision order can be appealed under section 28A whether the order was made before or after the commencement of that section, unless—
(a)the order had been appealed before that commencement; or
(b)any time limit for appealing the order had expired before that commencement.
(3)An order confirming, varying or revoking a supervision order can be appealed under section 34 (as substituted by section 13 of the Forensic Health Legislation (Amendment) Act 2002) or section 34A (as the case may be) whether the order was made before or after the commencement of that section, unless—
(a)the order had been appealed before that commencement; or
(b)any time limit for appealing the order had expired before that commencement.
(4)A refusal to grant extended leave or a grant of extended leave can be appealed under section 57B whether the refusal or grant was made before or after the commencement of that section.
(5)A revocation of extended leave or a refusal to revoke extended leave can be appealed under section 58A whether the revocation or refusal was made before or after the commencement of that section.
(6)Any appeal referred to in subclause (1)(a), (2)(a) or (3)(a) that has not been determined before the commencement referred to in that subclause is to be determined in accordance with this Act as in force immediately before that commencement.
11Transitional provisions—Criminal Procedure Act 2009
(1)Section 14A as inserted by section 423 of the Criminal Procedure Act 2009 applies to a finding on an investigation under Part 2 that an accused is unfit to stand trial made on or after the commencement of section 423 of that Act.
(2)Section 24AA as inserted by section 424 of the Criminal Procedure Act 2009 applies to a verdict of not guilty because of mental impairment recorded on or after the commencement of section 424 of that Act.
12Transitional provisions—Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009
(1)Section 19A as amended by item 39.17 of the Schedule to the Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 applies to an appeal under that section where the order to which the appeal relates is made on or after the commencement of that item.
(2)Section 24A as amended by item 39.24 of the Schedule to the Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 applies to an appeal under that section where the order to which the appeal relates is made on or after the commencement of that item.
(3)Section 28A as amended by item 39.25 of the Schedule to the Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 applies to an appeal under that section where the order to which the appeal relates is made on or after the commencement of that item.
(4)Section 34 as amended by item 39.28 of the Schedule to the Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 applies to an appeal under that section where the order to which the appeal relates is made on or after the commencement of that item.
(5)Section 34A as amended by item 39.31 of the Schedule to the Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 applies to an appeal against the revocation of a non-custodial supervision order where the order revoking the supervision order is made on or after the commencement of that item.
(6)Section 57B as amended by item 39.38 of the Schedule to the Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 applies to an appeal under that section where the application for extended leave is refused or granted, as the case may be, on or after the commencement of that item.
(7)Section 58A as amended by item 39.40 of the Schedule to the Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 applies to an appeal under that section where the extended leave is revoked or the application for revocation of extended leave is refused, as the case may be, on or after the commencement of that item.
(8)Section 73H as amended by item 39.44 of the Schedule to the Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 applies to an appeal under that section where the order to which the appeal relates is made on or after the commencement of that item.
(9)Section 73N as amended by item 39.46 of the Schedule to the Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009 applies to an appeal under that section where the order to which the appeal relates is made on or after the commencement of that item.
13Transitional provision—Health and Human Services Legislation Amendment Act 2010
Any act matter or thing of a continuing nature that was done by or in relation to, or any proceeding brought by or against, the Secretary to the Department of Human Services before the commencement of Division 1 of Part 5 of the Health and Human Services Legislation Amendment Act 2010 is to be taken to be done by or in relation to, and may be brought by or against, the Secretary to the Department of Health after that commencement if the act matter or thing or proceeding relates to—
(a)a forensic patient; or
(b)an approved mental health service.
15Transitional provision—Criminal Organisations Control and Other Acts Amendment Act 2014
This Act as amended by Division 1 of Part 5 of the Criminal Organisations Control and Other Acts Amendment Act 2014 applies to—
(a)a proceeding for an offence that is commenced on or after the commencement of Division 1 of Part 5 of that Act; and
(b)a proceeding for an offence that, on the commencement of Division 1 of Part 5 of that Act, is before the Children's Court, irrespective of when the proceeding was commenced.
16Transitional provision—Crimes Legislation Further Amendment Act 2017
This Act as amended by Part 3 of the Crimes Legislation Further Amendment Act 2017 applies to an investigation into the fitness of an accused to stand trial that commences on or after the day on which that Part comes into operation.
16ATransitional provision—COVID-19 Omnibus (Emergency Measures) Act 2020—investigations into fitness to stand trial
(1)Despite the repeal of Part 11, an investigation into the fitness of an accused—
(a)that, immediately before that repeal, was being conducted by the court, without a jury, in accordance with that Part; and
(b)in which the court had not yet made a finding—
is to continue, after that repeal, to be conducted by the court, without a jury, in accordance with that Part.
(2)For the purposes of an investigation that continues in accordance with subsection (1), Part 11 continues to have effect despite its repeal.
(3)After the conclusion of an investigation that was continued in accordance with subsection (1), sections 95, 96, 97 and 98 continue to apply in relation to that investigation despite their repeal.
(4)Subject to this section, on and after the repeal of Part 11, a finding of a court, on an investigation conducted in accordance with that Part, that an accused was or was not fit to stand trial has, for all purposes, the same effect as a finding of a jury.
16BTransitional provision—COVID-19 Omnibus (Emergency Measures) Act 2020—special hearings
(1)Despite the repeal of Part 11, a special hearing by judge alone in which judgment was not delivered before that repeal may continue to be held by judge alone, without a jury, after that repeal.
(2)For the purposes of a special hearing that continues in accordance with subsection (1), Part 11 continues to have effect despite its repeal.
(3)On and after the repeal of section 103, a finding of a judge at a special hearing by judge alone has, for all purposes, the same effect as a finding of a jury.
(4)Subsection (3) has effect despite the repeal of section 103.
(5)In this section—
special hearing by judge alone means a special hearing held in accordance with an order under section 101 as in force immediately before its repeal.
16CTransitional provision—COVID-19 Omnibus (Emergency Measures) Act 2020—special hearings
On and after the repeal of section 121, that section continues to apply, despite its repeal, in relation to any issue, application or review that a court—
(a)has determined to decide or determine entirely on the basis of written submissions and without the appearance of the parties; and
(b)has not yet so decided or determined.
16DTransitional provision—Justice Legislation Amendment (Trial by Judge Alone and Other Matters) Act 2022
(1)If an application for an order under section 94 is made before the repeal of Part 11, and is not determined before that repeal, then despite that repeal—
(a)the application may be heard and determined as if Part 11 had not been repealed; and
(b)for the purposes of the application, and any order made on the application, and any special hearing to which that order relates, Part 11 as in force immediately before its repeal continues to have effect.
(2)If, immediately before the repeal of Part 11, there was in force an order under section 94 and judgment had not yet been delivered in the special hearing to which that order relates, then despite that repeal—
(a)the order continues to have effect as if Part 11 had not been repealed; and
(b)for the purposes of the order and the special hearing to which it relates, Part 11 as in force immediately before its repeal continues to have effect.
(3)Subsection (2) applies in relation to an order whether or not the special hearing to which the order relates commenced before the repeal of Part 11.
(4)On and after the repeal of section 96, a finding of a judge at a special hearing by judge alone has, for all purposes, the same effect as a finding of a jury.
(5)Subsection (4) has effect despite the repeal of section 96.
(6)Nothing in this section limits section 14 of the Interpretation of Legislation Act 1984.
(7)In this section—
special hearing by judge alone means a special hearing held in accordance with an order under section 94 as in force before its repeal.
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ENDNOTES
1 General information
See for Victorian Bills, Acts and current Versions of legislation and up-to-date legislative information.
Minister's second reading speech—
Legislative Assembly: 18 September 1997
Legislative Council: 15 October 1997
The long title for the Bill for this Act was "A Bill to reform the law relating to fitness to stand trial for criminal offences and to the defence of insanity, to amend the Corrections Act 1986, the Crimes Act 1958, the Intellectually Disabled Persons' Services Act 1986 and the Mental Health Act 1986 and for other purposes."
Constitution Act 1975:
Section 85(5) statement:
Legislative Assembly: 18 September 1997
Legislative Council: 15 October 1997
Absolute majorities:
Legislative Assembly: 8 October 1997 and 11 November 1997
Legislative Council: 28 October 1997
The Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 was assented to on 18 November 1997 and came into operation as follows: Part 1 (sections 1–5) on 18 November 1997: section 2(1); rest of Act on 18 April 1998: section 2(3).
INTERPRETATION OF LEGISLATION ACT 1984 (ILA)
Style changes
Section 54A of the ILA authorises the making of the style changes set out in Schedule 1 to that Act.
References to ILA s. 39B
Sidenotes which cite ILA s. 39B refer to section 39B of the ILA which provides that where an undivided section or clause of a Schedule is amended by the insertion of one or more subsections or subclauses, the original section or clause becomes subsection or subclause (1) and is amended by the insertion of the expression "(1)" at the beginning of the original section or clause.
Interpretation
As from 1 January 2001, amendments to section 36 of the ILA have the following effects:
• Headings
All headings included in an Act which is passed on or after 1 January 2001 form part of that Act. Any heading inserted in an Act which was passed before 1 January 2001, by an Act passed on or after 1 January 2001, forms part of that Act. This includes headings to Parts, Divisions or Subdivisions in a Schedule; sections; clauses; items; tables; columns; examples; diagrams; notes or forms. See section 36(1A)(2A).
• Examples, diagrams or notes
All examples, diagrams or notes included in an Act which is passed on or after 1 January 2001 form part of that Act. Any examples, diagrams or notes inserted in an Act which was passed before 1 January 2001, by an Act passed on or after 1 January 2001, form part of that Act. See section 36(3A).
• Punctuation
All punctuation included in an Act which is passed on or after 1 January 2001 forms part of that Act. Any punctuation inserted in an Act which was passed before 1 January 2001, by an Act passed on or after 1 January 2001, forms part of that Act. See section 36(3B).
• Provision numbers
All provision numbers included in an Act form part of that Act, whether inserted in the Act before, on or after 1 January 2001. Provision numbers include section numbers, subsection numbers, paragraphs and subparagraphs. See section 36(3C).
• Location of "legislative items"
A "legislative item" is a penalty, an example or a note. As from 13 October 2004, a legislative item relating to a provision of an Act is taken to be at the foot of that provision even if it is preceded or followed by another legislative item that relates to that provision. For example, if a penalty at the foot of a provision is followed by a note, both of these legislative items will be regarded as being at the foot of that provision. See section 36B.
• Other material
Any explanatory memorandum, table of provisions, endnotes, index and other material printed after the Endnotes does not form part of an Act.
See section 36(3)(3D)(3E).2 Table of Amendments
This publication incorporates amendments made to the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 by Acts and subordinate instruments.
–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––
Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, No. 65/1997
Assent Date: 18.11.97 Commencement Date: S. 122 inserted on 25.4.20 by No. 11/2020 s. 30: s. 2 (as amended by No. 27/2020 s. 12); new s. 120 inserted on 30.3.22 by No. 11/2022 s. 6: s. 2 Note: S. 122 repealed Pt 11 (ss 91–122) on 26.4.21; new s. 120 repealed new Pt 11 (new ss 91–120) on 30.3.23 Current State: This information relates only to the provision/s amending the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997
Miscellaneous Acts (Omnibus No. 1) Act 1998, No. 43/1998
Assent Date: 26.5.98 Commencement Date: S. 40 on 18.4.98: s. 2(3) CurrentState: This information relates only to the provision/s amending the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997
Public Sector Reform (Miscellaneous Amendments) Act 1998, No. 46/1998
Assent Date: 26.5.98 Commencement Date: S. 7(Sch. 1) on 1.7.98: s. 2(2) CurrentState: This information relates only to the provision/s amending the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997
Psychologists Registration Act 2000, No. 41/2000
Assent Date: 6.6.00 Commencement Date: S. 102(Sch. item 2) on 1.6.01: s. 2(2) CurrentState: This information relates only to the provision/s amending the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997
Juries Act 2000, No. 53/2000
Assent Date: 12.9.00 Commencement Date: S. 95 on 1.8.01: s. 2(3) CurrentState: This information relates only to the provision/s amending the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997
Statute Law Further Amendment (Relationships) Act 2001, No. 72/2001
Assent Date: 7.11.01 Commencement Date: S. 3(Sch. item 5) on 20.12.01: Government Gazette 20.12.01 p. 3127 CurrentState: This information relates only to the provision/s amending the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997
Forensic Health Legislation (Amendment) Act 2002, No. 7/2002
Assent Date: 9.4.02 Commencement Date: S. 50 on 10.4.02: s. 2(1); ss 3–33 on 1.7.02: s. 2(3) CurrentState: This information relates only to the provision/s amending the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997
Mental Health Legislation (Commonwealth Detainees) Act 2004, No. 44/2004
Assent Date: 16.6.04 Commencement Date: Ss 6–10 on 17.6.04: s. 2 CurrentState: This information relates only to the provision/s amending the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997
Public Administration Act 2004, No. 108/2004
Assent Date: 21.12.04 Commencement Date: S. 117(1)(Sch. 3 item 50) on 5.4.05: Government Gazette 31.3.05 p. 602 CurrentState: This information relates only to the provision/s amending the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997
Statute Law Revision Act 2005, No. 10/2005
Assent Date: 27.4.05 Commencement Date: S. 3(Sch. 1 item 7) on 28.4.05: s. 2 CurrentState: This information relates only to the provision/s amending the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997
Legal Profession (Consequential Amendments) Act 2005, No. 18/2005
Assent Date: 24.5.05 Commencement Date: S. 18(Sch. 1 item 30) on 12.12.05: Government Gazette 1.12.05 p. 2781 CurrentState: This information relates only to the provision/s amending the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997
Sentencing and Mental Health Acts (Amendment) Act 2005, No. 69/2005
Assent Date: 11.10.05 Commencement Date: S. 27 on 1.10.06: s. 2(3) CurrentState: This information relates only to the provision/s amending the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997
Crimes (Homicide) Act 2005, No. 77/2005
Assent Date: 22.11.05 Commencement Date: S. 10 on 23.11.05: s. 2 CurrentState: This information relates only to the provision/s amending the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997
Health Professions Registration Act 2005, No. 97/2005
Assent Date: 7.12.05 Commencement Date: S. 182(Sch. 4 item 15) on 1.7.07: s. 2(3) CurrentState: This information relates only to the provision/s amending the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997
Disability Act 2006, No. 23/2006
Assent Date: 16.5.06 Commencement Date: S. 237 on 1.7.07: s. 2(3) CurrentState: This information relates only to the provision/s amending the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997
Public Sector Acts (Further Workplace Protection and Other Matters) Act 2006, No. 80/2006
Assent Date: 10.10.06 Commencement Date: S. 26(Sch. item 22) on 11.10.06: s. 2(1) CurrentState: This information relates only to the provision/s amending the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997
Relationships Act 2008, No. 12/2008
Assent Date: 15.4.08 Commencement Date: S. 73(1)(Sch. 1 item 15) on 1.12.08: s. 2(2) CurrentState: This information relates only to the provision/s amending the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997
Criminal Procedure Act 2009, No. 7/2009 (as amended by No. 68/2009)
Assent Date: 10.3.09 Commencement Date: Ss 423–425 on 1.1.10: Government Gazette 10.12.09 p. 3215 CurrentState: This information relates only to the provision/s amending the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997
Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009, No. 68/2009
Assent Date: 24.11.09 Commencement Date: S. 97(Sch. item 39) on 1.1.10: Government Gazette 10.12.09 p. 3215 CurrentState: This information relates only to the provision/s amending the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997
Statute Law Amendment (Evidence Consequential Provisions) Act 2009, No. 69/2009
Assent Date: 24.11.09 Commencement Date: S. 54(Sch. Pt 1 item 13), (Sch. Pt 2 item 17) on 1.1.10: s. 2(2) CurrentState: This information relates only to the provision/s amending the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997
Statute Law Amendment (National Health Practitioner Regulation) Act 2010, No. 13/2010
Assent Date: 30.3.10 Commencement Date: S. 51(Sch. item 18) on 1.7.10: s. 2(2) CurrentState: This information relates only to the provision/s amending the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997
Health and Human Services Legislation Amendment Act 2010, No. 29/2010
Assent Date: 8.6.10 Commencement Date: Ss 18–36 on 1.7.10: Special Gazette (No. 235) 23.6.10 p. 1 CurrentState: This information relates only to the provision/s amending the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997
Courts Legislation Miscellaneous Amendments Act 2010, No. 34/2010
Assent Date: 15.6.10 Commencement Date: S. 48 on 1.1.11: s. 2(5) CurrentState: This information relates only to the provision/s amending the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997
Statute Law Revision Act 2011, No. 29/2011
Assent Date: 21.6.11 Commencement Date: S. 3(Sch. 1 item 23) on 22.6.11: s. 2(1) CurrentState: This information relates only to the provision/s amending the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997
Criminal Procedure Amendment (Double Jeopardy and Other Matters) Act 2011, No. 81/2011
Assent Date: 21.12.11 Commencement Date: S. 22(4) on 21.12.11: s. 2(1) CurrentState: This information relates only to the provision/s amending the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997
Statute Law Revision Act 2012, No. 43/2012
Assent Date: 27.6.12 Commencement Date: S. 3(Sch. item 10) on 28.6.12: s. 2(1) CurrentState: This information relates only to the provision/s amending the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997
Legal Profession Uniform Law Application Act 2014, No. 17/2014
Assent Date: 25.3.14 Commencement Date: S. 160(Sch. 2 item 29) on 1.7.15: Special Gazette (No. 151) 16.6.15 p. 1 Current State: This information relates only to the provision/s amending the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997
Mental Health Act 2014, No. 26/2014
Assent Date: 8.4.14 Commencement Date: Ss 436–454 on 1.7.14: s. 2(1) Current State: This information relates only to the provision/s amending the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997
Victoria Police Amendment (Consequential and Other Matters) Act 2014, No. 37/2014
Assent Date: 3.6.14 Commencement Date: S. 10(Sch. item 39) on 1.7.14: Special Gazette (No. 200) 24.6.14 p. 2 Current State: This information relates only to the provision/s amending the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997
Criminal Organisations Control and Other Acts Amendment Act 2014, No. 55/2014 (as amended by No. 79/2014)
Assent Date: 26.8.14 Commencement Date: Ss 119–131 on 31.10.14: Special Gazette (No. 330) 23.9.14 p. 1; s. 155 on 31.10.14: s. 2(2) Current State: This information relates only to the provision/s amending the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997
Mental Health Amendment Act 2015, No. 15/2015
Assent Date: 12.5.15 Commencement Date: Ss 34, 37, 38 on 25.11.15: Special Gazette (No. 363) 24.11.15 p. 1 Current State: This information relates only to the provision/s amending the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997
Justice Legislation Amendment Act 2015, No. 20/2015[5]
Assent Date: 16.6.15 Commencement Date: Ss 33–37 on 17.6.15: s. 2(3) Current State: This information relates only to the provision/s amending the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997
Justice Legislation Further Amendment Act 2016, No. 3/2016
Assent Date: 16.2.16 Commencement Date: Ss 101–105, 107 on 1.5.16: Special Gazette (No. 114) 26.4.16 p. 1 Current State: This information relates only to the provision/s amending the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997
Crimes Legislation Further Amendment Act 2017, No. 6/2017
Assent Date: 15.3.17 Commencement Date: Ss 10–12 on 1.4.17: s. 2(2) Current State: This information relates only to the provision/s amending the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997
Oaths and Affirmations Act 2018, No. 6/2018
Assent Date: 27.2.18 Commencement Date: S. 68(Sch. 2 item 36) on 1.3.19: s. 2(2) Current State: This information relates only to the provision/s amending the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997
Disability (National Disability Insurance Scheme Transition) Amendment Act 2019, No. 19/2019
Assent Date: 25.6.19 Commencement Date: Ss 240–247 on 1.7.20: s. 2(4) Current State: This information relates only to the provision/s amending the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997
COVID-19 Omnibus (Emergency Measures) Act 2020, No. 11/2020
Assent Date: 24.4.20 Commencement Date: Ss 30, 31 on 25.4.20: s. 2 Current State: This information relates only to the provision/s amending the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997
COVID-19 Omnibus (Emergency Measures) and Other Acts Amendment Act 2020, No. 27/2020
Assent Date: 20.10.20 Commencement Date: Ss 11, 12 on 21.10.20: s. 2 Current State: This information relates only to the provision/s amending the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997
Justice Legislation Amendment (System Enhancements and Other Matters) Act 2021, No. 11/2021
Assent Date: 23.3.21 Commencement Date: Ss 121–123 on 26.4.21: s. 2(2) Current State: This information relates only to the provision/s amending the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997
Justice Legislation Amendment (Criminal Procedure Disclosure and Other Matters) Act 2022, No. 1/2022
Assent Date: 15.2.22 Commencement Date: Ss 82–86 on 29.3.22: Special Gazette (No. 157) 29.3.22 p. 1 Current State: This information relates only to the provision/s amending the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997
Justice Legislation Amendment (Trial by Judge Alone and Other Matters) Act 2022, No. 11/2022
Assent Date: 29.3.22 Commencement Date: Ss 6, 7 on 30.3.22: s. 2 Current State: This information relates only to the provision/s amending the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997
Mental Health and Wellbeing Act 2022, No. 39/2022 (as amended by No. 20/2023)
Assent Date: 6.9.22 Commencement Date: Ss 815−819 on 1.9.23: s. 2(2) Current State: This information relates only to the provision/s amending the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997
Youth Justice Act 2024, No. 32/2024
Assent Date: 10.9.24 Commencement Date: Ss 792–795 on 30.9.25: s. 2(2) Current State: This information relates only to the provision/s amending the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997
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3 Explanatory details
[1] S. 18(4): Section 23 provides similarly to this subsection in relation to a finding of not guilty because of mental impairment under section 17(1)(b).
[2] S. 18(4)(b): Section 40(2) applies to an order under this section.
[3] S. 23(b): See note 2.
[4] S. 26(1): Part 6 applies to a supervision order.
Guide to Children's Court Process – CMIA
[5] Table of Amendments: The amendment proposed by section 34 of the Justice Legislation Amendment Act 2015, No. 20/2015 (repealed) is not included in this publication because the words "Unless the court revokes the order, the court" do not appear in section 38ZO(3).
Section 34 reads as follows:
34Variation of custodial supervision orders on application or review
In section 38ZO(3) of the Crimes (Mental Impairment and Unfitness to
be Tried) Act 1997, for "Unless the court revokes the order, the court" substitute "The court".
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