New South Wales: Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW)

Mental Health and Cognitive Impairment Forensic Provisions Act 2020 No 12 An Act with respect to criminal proceedings involving persons with a mental health impairment or cognitive impairment and the care, treatment and control of those persons; and for other purposes. Part 1 Preliminary 1 Name of Act This Act is the Mental Health and Cognitive Impairment Forensic Provisions Act 2020. 2 Commencement This Act commences on a day or days to be appointed by proclamation. 3 Definitions (1) In this Act— cognitive impairment—see section 5. Commissioner of Victims Rights means the Commissioner of Victims Rights established under the Victims Rights and Support Act 2013. correctional centre has the same meaning as in the Crimes (Administration of Sentences) Act 1999. correctional patient—see section 73. defence of mental health impairment or cognitive impairment means the defence established under section 28(1). defendant includes an accused person and a person about whom a finding has been made at a special hearing. detention centre has the same meaning as in the Children (Detention Centres) Act 1987. extension order means an order for the extension of a person's status as a forensic patient under section 121. Forensic Division of the Tribunal means the Forensic Division of the Tribunal established under Division 1 of Part 7. forensic patient—see section 72. high risk offender detention order means a continuing detention order or an interim detention order under the Crimes (High Risk Offenders) Act 2006 or the Terrorism (High Risk Offenders) Act 2017. inmate has the same meaning as in the Crimes (Administration of Sentences) Act 1999. inquiry means an inquiry conducted under Division 2 of Part 4 in order to determine whether a person is unfit to be tried for an offence. interim extension order means an order for the interim extension of a person's status as a forensic patient under section 130. limiting term means a term nominated for a person under Division 3 of Part 4. Magistrate means a Magistrate or a Children's Magistrate. mental health impairment—see section 4. registered victim means a victim registered on the Victims Register. Secretary means the Secretary of the Ministry of Health. special hearing—see section 54. special verdict of act proven but not criminally responsible means a special verdict of act proven but not criminally responsible entered at a trial or following a special hearing if the defence of mental health impairment or cognitive impairment is established. Tribunal means the Mental Health Review Tribunal constituted under the Mental Health Act 2007. victim of a forensic patient means a primary victim, or a family victim, of an act of violence (within the meaning of the Victims Rights and Support Act 2013) committed by the forensic patient. Victims Register means the Register established under Part 8. Note— The Interpretation Act 1987 contains definitions and other provisions that affect the interpretation and application of this Act. (2) Words and expressions used in this Act have the same meanings as in the Mental Health Act 2007. (3) For the purposes of the application of this Act to a person detained in, or transferred to or from, a detention centre— (a) a reference to the Commissioner of Corrective Services is taken to be a reference to the Secretary of the Department of Communities and Justice, and (b) a reference to a sentence of imprisonment is taken to include a reference to a term of detention under a detention order within the meaning of the Children (Detention Centres) Act 1987. (4) Notes included in this Act do not form part of this Act. 4 Mental health impairment (1) For the purposes of this Act, a person has a mental health impairment if— (a) the person has a temporary or ongoing disturbance of thought, mood, volition, perception or memory, and (b) the disturbance would be regarded as significant for clinical diagnostic purposes, and (c) the disturbance impairs the emotional wellbeing, judgment or behaviour of the person. (2) A mental health impairment may arise from any of the following disorders but may also arise for other reasons— (a) an anxiety disorder, (b) an affective disorder, including clinical depression and bipolar disorder, (c) a psychotic disorder, (d) a substance induced mental disorder that is not temporary. (3) A person does not have a mental health impairment for the purposes of this Act if the person's impairment is caused solely by— (a) the temporary effect of ingesting a substance, or (b) a substance use disorder. 5 Cognitive impairment (1) For the purposes of this Act, a person has a cognitive impairment if— (a) the person has an ongoing impairment in adaptive functioning, and (b) the person has an ongoing impairment in comprehension, reason, judgment, learning or memory, and (c) the impairments result from damage to or dysfunction, developmental delay or deterioration of the person's brain or mind that may arise from a condition set out in subsection (2) or for other reasons. (2) A cognitive impairment may arise from any of the following conditions but may also arise for other reasons— (a) intellectual disability, (b) borderline intellectual functioning, (c) dementia, (d) an acquired brain injury, (e) drug or alcohol related brain damage, including foetal alcohol spectrum disorder, (f) autism spectrum disorder. 6 References to juries and matters determined by a judge alone In this Act (other than sections 29, 41, 56 and 58), a reference to a matter or question that is or is to be determined by a jury, or to another function of a jury, includes a reference to a judge in proceedings determined by a judge alone. Part 2 Summary proceedings Division 1 Preliminary 7 Interpretation (1) In this Part— authorised justice has the same meaning as in the Bail Act 2013. authorised officer has the same meaning as in the Criminal Procedure Act 1986. juvenile justice officer has the same meaning as in the Children (Detention Centres) Act 1987. treatment or support plan means a plan outlining programs, services or treatments or other support that may be required by a defendant to address the defendant's apparent mental health impairment or cognitive impairment. (2) A reference to an order in a Division of this Part is a reference to an order made under that Division. 8 Application of Part (1) This Part applies to the following criminal proceedings before a Magistrate— (a) summary proceedings for offences, (b) indictable offences triable summarily, (c) any related proceedings under the Bail Act 2013. (2) This Part does not apply to committal proceedings. 9 Magistrate may make order at any time (1) A Magistrate may make an order specified under this Part at the commencement of or at any other time during the course of proceedings before the Magistrate, whether or not the defendant has entered a plea. (2) (Repealed) 10 Means by which Magistrate may be informed For the purposes of this Part, a Magistrate may inform himself or herself as the Magistrate thinks fit, but not so as to require a defendant to incriminate himself or herself. 11 Magistrate to state reasons for decisions (1) A Magistrate is to state the reasons for making a decision as to whether or not a defendant should be dealt with by an order under this Part. (2) A failure to comply with this section does not invalidate a decision of a Magistrate under this Part. Division 2 Defendants with mental health impairments or cognitive impairments 12 Defendants with mental health impairments or cognitive impairments (1) A Magistrate may make an order under this Division or adjourn proceedings if it appears to the Magistrate that the defendant has (or had at the time of the alleged commission of the offence to which the proceedings relate) a mental health impairment or a cognitive impairment, or both. (2) The Magistrate may take action under this Division only if it appears to the Magistrate, on an outline of the facts alleged in the proceedings or other evidence the Magistrate considers relevant, it would be more appropriate to deal with the defendant in accordance with this Division than otherwise in accordance with law. (3) This Division does not apply if the defendant is a mentally ill person or a mentally disordered person. 13 Adjournment of proceedings A Magistrate may, for the purposes of this Division— (a) adjourn proceedings to enable— (i) the defendant's apparent mental health impairment or cognitive impairment to be assessed or diagnosed, or (ii) the development of a treatment or support plan for the defendant for the purposes of an order, or (iii) a responsible person to be identified for the purposes of an order, or (iv) for any other reason the Magistrate considers appropriate in the circumstances, or (b) make other interim orders that the Magistrate considers appropriate. 14 Orders Magistrate may make (1) A Magistrate may make an order to dismiss a charge and discharge the defendant— (a) into the care of a responsible person, unconditionally or subject to conditions, or (b) on the condition that the defendant attend on a person or at a place specified by the Magistrate for assessment, treatment or the provision of support for the defendant's mental health impairment or cognitive impairment, or (c) unconditionally. (2) An order to dismiss a charge against a defendant does not constitute a finding that the charge against the defendant is proven or otherwise. 15 Considerations of Magistrate when making order In deciding whether it would be more appropriate to deal with a defendant in accordance with this Division, the Magistrate may consider the following— (a) the nature of the defendant's apparent mental health impairment or cognitive impairment, (b) the nature, seriousness and circumstances of the alleged offence, (c) the suitability of the sentencing options available if the defendant is found guilty of the offence, (d) relevant changes in the circumstances of the defendant since the alleged commission of the offence, (e) the defendant's criminal history, (f) whether the defendant has previously been the subject of an order under this Act or section 32 of the Mental Health (Forensic Provisions) Act 1990, (g) whether a treatment or support plan has been prepared in relation to the defendant and the content of that plan, (h) whether the defendant is likely to endanger the safety of the defendant, a victim of the defendant or any other member of the public, (i) other relevant factors. 16 Failure of defendant to comply with condition of order (1) If a Magistrate suspects that a defendant has failed to comply with a condition of an order under section 14, the Magistrate may, within 12 months of the order being made, order the defendant to appear before the Magistrate. (2) If the defendant fails to appear, the Magistrate may— (a) issue a warrant for the defendant's arrest, or (b) authorise an authorised officer to issue a warrant for the defendant's arrest. (3) If at the time the Magistrate proposes to make an order under subsection (1) the Magistrate is satisfied that the location of the defendant is unknown, the Magistrate may immediately— (a) issue a warrant for the defendant's arrest, or (b) authorise an authorised officer to issue a warrant for the defendant's arrest. (4) If a Magistrate discharges a defendant subject to a condition under an order, and the defendant fails to comply with the condition within 12 months of the discharge, the Magistrate may deal with the charge as if the defendant had not been discharged. 17 Reports from treatment providers (1) Despite any law, a person who is, in accordance with an order under section 14, to assess another person's mental condition or provide treatment to another person (a treatment provider) may report a failure to comply with a condition of the order by the other person to any of the following— (a) an officer of the Department of Communities and Justice, (b) another person or body prescribed by the regulations. (2) A treatment provider may include in the report information that the treatment provider considers is relevant to the making of a decision in relation to the failure to comply with the condition. (3) The report is to be in the form approved for the time being by the Secretary of the Department of Communities and Justice. Division 3 Mentally ill or mentally disordered persons 18 Mentally ill or mentally disordered persons (1) A Magistrate may make an order under this Division if it appears to the Magistrate that the defendant is a mentally ill person or a mentally disordered person. (2) A Magistrate may make an order under this Division without affecting any other order the Magistrate may make in relation to the defendant, whether by way of adjournment, the granting of bail in accordance with the Bail Act 2013 or otherwise. Note— Certain orders by a Magistrate or authorised justice under this Division in relation to an offence are taken to be a decision to dispense with bail for the offence (see section 24). 19 Orders Magistrate may make A Magistrate may make one or more of the following orders— (a) an order that the defendant be taken to, and detained in, a mental health facility for assessment, (b) an order that the defendant be taken to, and detained in, a mental health facility for assessment and that, if the defendant is found on assessment at the mental health facility not to be a mentally ill person or mentally disordered person, the defendant be brought back before a Magistrate or an authorised justice as soon as practicable unless granted bail by a police officer at that facility, (c) an order for the discharge of the defendant, unconditionally or subject to conditions, into the care of a responsible person. 20 Community treatment orders (1) Without limiting section 19(c), the Magistrate may make a community treatment order in accordance with the Mental Health Act 2007 for implementation by a declared mental health facility in relation to the defendant, if the Magistrate is satisfied that all of the requirements for the making of a community treatment order at a mental health inquiry under that Act (other than the holding of an inquiry) have been met in respect of the defendant. (2) The Mental Health Act 2007 (other than section 51(1) and (2)) applies to and in respect of the defendant and a community treatment order as if the order had been made by the Tribunal under that Act. 21 Proceedings before authorised justice (1) If, at the commencement of or at any time during the course of the hearing of proceedings under the Bail Act 2013 before an authorised justice, it appears to the authorised justice that the defendant is a mentally ill person or a mentally disordered person, the authorised justice may (without affecting any other order under the Bail Act 2013 that the officer may make in relation to the defendant)— (a) order that the defendant be taken to, and detained in, a mental health facility for assessment, or (b) order that the defendant be taken to, and detained in, a mental health facility for assessment and that, if the defendant is found on assessment at the mental health facility not to be a mentally ill person or mentally disordered person, the defendant be brought back before a Magistrate or an authorised justice as soon as practicable unless granted bail by a police officer at that facility. (2) An authorised justice is to state the reasons for making a decision as to whether or not a defendant should be dealt with by an order under subsection (1). (3) A failure to comply with subsection (2) does not invalidate a decision of an authorised justice under this section. 22 Orders may relate to transfer of defendants by certain persons (1) An order by a Magistrate or authorised justice may provide that a defendant— (a) in the case of a defendant who is under the age of 18 years, be taken to or from a place by a juvenile justice officer, or (b) in the case of any defendant, be taken to or from a place by a person of a kind prescribed by the regulations for the purposes of this section. (2) A function conferred on a juvenile justice officer under an order is taken to be a function under the Children (Detention Centres) Act 1987 and the juvenile justice officer has the same functions in respect of the defendant as the officer has in respect of a detainee under that Act and the regulations under that Act. (3) If a correctional officer has power under an order to take a defendant to or from a place, that power is taken to be a function under the Crimes (Administration of Sentences) Act 1999 and the correctional officer has the same functions in respect of the defendant as the officer has in respect of an inmate under that Act and the regulations under that Act. (4) In this section— correctional officer has the same meaning as in the Crimes (Administration of Sentences) Act 1999. 23 Dismissal of charges (1) If a defendant is dealt with by a Magistrate or authorised justice in accordance with this Division, the charge which gave rise to the proceedings, on the expiration of the period of 6 months after the date on which the defendant is so dealt with, is taken to have been dismissed unless, within that period, the defendant is brought before a Magistrate to be further dealt with in relation to the charge. (2) If a defendant is brought before a Magistrate to be further dealt with in relation to a charge, the Magistrate must, in dealing with the charge, take account of any period during which the defendant was detained in a mental health facility as a consequence of an order. (3) The fact that charges are taken to have been dismissed under subsection (1) does not constitute a finding that the charges against the defendant are proven or otherwise. 24 Bail (1) An order by a Magistrate or authorised justice under section 19(a) or (b) or 21(1)(a) or (b) in relation to an offence is, for the purposes of the Bail Act 2013, taken to be a decision to dispense with bail for the offence. (2) An order under section 19(b) or 21(1)(b) that a defendant be brought back before a Magistrate or authorised justice may be satisfied by taking the defendant to an appropriate police officer for the making of a bail decision in respect of the defendant. (3) An appropriate police officer may make a bail decision in respect of a defendant brought before the appropriate police officer under this section (despite section 43(3) of the Bail Act 2013). (4) In this section— appropriate police officer means a police officer who may make a bail decision under the Bail Act 2013 in respect of a person accused of an offence who is present at a police station. Division 4 General 25 Transfer from correctional centre or detention centre (1) This section applies to a person who is awaiting committal for trial or trial for an offence or summary disposal of the person's case. (2) If it appears to a Magistrate that it may be appropriate to transfer a person to whom this section applies from a correctional centre or detention centre to a mental health facility under section 86, the Magistrate may make an order directing— (a) that the defendant be examined by 2 medical practitioners, 1 of whom is a psychiatrist, and (b) that, if appropriate, the relevant certificates be given to the Secretary under section 86, and (c) that the Chief Executive, Justice Health or, in the case of a person who is under the age of 18 years, the Secretary of the Department of Communities and Justice to ensure that the Magistrate is notified of the action, if any, taken under section 86. 26 Regulations The regulations may prescribe the form of an order under this Part. Part 3 Defence of mental health impairment or cognitive impairment 27 Application of Part This Part applies to criminal proceedings in the Supreme Court (including criminal proceedings within the summary jurisdiction of the Supreme Court) and the District Court. 28 Defence of mental health impairment or cognitive impairment (1) A person is not criminally responsible for an offence if, at the time of carrying out the act constituting the offence, the person had a mental health impairment or a cognitive impairment, or both, that had the effect that the person— (a) did not know the nature and quality of the act, or (b) did not know that the act was wrong (that is, the person could not reason with a moderate degree of sense and composure about whether the act, as perceived by reasonable people, was wrong). (2) The question of whether a defendant had a mental health impairment or a cognitive impairment, or both, that had that effect is a question of fact and is to be determined by the jury on the balance of probabilities. (3) Until the contrary is proved, it is presumed that a defendant did not have a mental health impairment or cognitive impairment, or both, that had that effect. (4) In this Part, act includes— (a) an omission, and (b) a series of acts or omissions. 29 Explanation to jury The judge must explain the following matters to the jury if the question of whether the defendant had a mental health impairment or a cognitive impairment, or both, as referred to in section 28(1) is raised— (a) the findings which may be made on the trial, (b) the legal and practical consequences of those findings, (c) the composition of the Tribunal and its relevant functions with respect to forensic patients, (d) without limiting paragraph (b), that a defendant who is found to have committed the act constituting the offence but not to be criminally responsible because of a mental health impairment or cognitive impairment, or both, may be ordered to be released by the Tribunal only if the Tribunal is satisfied, on the evidence available to it, that the safety of the defendant or any member of the public will not be seriously endangered by the defendant's release, (e) that the jury should not be influenced by the consequences of a special verdict of act proven but not criminally responsible in deciding a verdict. 30 Effect of finding of act proven but not criminally responsible because of mental health impairment or cognitive impairment A jury must return a special verdict of act proven but not criminally responsible if the jury is satisfied that the defence of mental health impairment or cognitive impairment has been established. 31 Special verdict where defendant and prosecutor agree on impairment The court may enter a special verdict of act proven but not criminally responsible at any time in the proceedings (including before the jury is empanelled) if— (a) the defendant and the prosecutor agree that the proposed evidence in the proceedings establishes a defence of mental health impairment or cognitive impairment, and (b) the defendant is represented by an Australian legal practitioner, and (c) the court, after considering that evidence, is satisfied that the defence is so established. 32 Special verdict not available for alternative offence The fact that a court enters a special verdict of act proven but not criminally responsible in respect of an offence does not result in a requirement for the court to also enter a special verdict in respect of an offence available as an alternative to the offence. 33 Effect of special verdict (1) On the return of a special verdict of act proven but not criminally responsible, the court may make one or more of the following orders— (a) an order that the defendant be remanded in custody until a further order is made under this section, (b) an order that the defendant be detained in the place and manner that the court thinks fit until released by due process of law, (c) an order for the unconditional or conditional release of the defendant from custody, (d) other orders that the court thinks appropriate. (2) Before making an order for the release of a defendant, the court may request a report by a forensic psychiatrist or other person of a class prescribed by the regulations, who is not currently involved in treating the defendant, as to the condition of the defendant and whether the release of the defendant is likely to seriously endanger the safety of the defendant or any member of the public. (3) The court must not make an order for the release of a defendant unless it is satisfied, on the balance of probabilities, that the safety of the defendant or any member of the public will not be seriously endangered by the defendant's release. Note— A person for whom a special verdict of act proven but not criminally responsible is entered is a forensic patient unless unconditionally released and is to be dealt with under Part 5. 34 Referral of defendant to Tribunal The court must refer the defendant to the Tribunal if a special verdict of act proven but not criminally responsible is returned or entered and an order is not made for the unconditional release of the defendant. Part 4 Fitness to stand trial Division 1 Preliminary 35 Application of Part This Part applies to criminal proceedings in the Supreme Court (including criminal proceedings within the summary jurisdiction of the Supreme Court) and the District Court. 36 Fitness test (1) For the purposes of proceedings to which this Part applies, a person is taken to be unfit to be tried for an offence if the person, because the person has a mental health impairment or cognitive impairment, or both, or for another reason, cannot do one or more of the following— (a) understand the offence the subject of the proceedings, (b) plead to the charge, (c) exercise the right to challenge jurors, (d) understand generally the nature of the proceedings as an inquiry into whether the person committed the offence with which the person is charged, (e) follow the course of the proceedings so as to understand what is going on in a general sense, (f) understand the substantial effect of any evidence given against the person, (g) make a defence or answer to the charge, (h) instruct the person's legal representative so as to mount a defence and provide the person's version of the facts to that legal representative and to the court if necessary, (i) decide what defence the person will rely on and make that decision known to the person's legal representative and the court. (2) This section does not limit the grounds on which a court may consider a person to be unfit to be tried for an offence. 37 When question of unfitness may be raised (1) The question of a defendant's unfitness to be tried for an offence is, so far as practicable, to be raised before the defendant is arraigned on a charge in respect of the offence but may be raised at any time during the course of the hearing of the proceedings in respect of the offence. (2) The question of a defendant's unfitness to be tried for an offence may be raised on more than one occasion in the same proceedings. 38 Question of unfitness to be determined on balance of probabilities The question of a defendant's unfitness to be tried for an offence is to be determined on the balance of probabilities. 39 Court and other persons may raise question of unfitness The court, the defendant or the prosecutor may raise the question of a defendant's unfitness to be tried for an offence. Division 2 Procedure when question of unfitness to be tried raised 40 Procedure where question of unfitness raised before arraignment (1) If the question of a defendant's unfitness to be tried is raised before the defendant is arraigned on a charge in respect of the offence, the court must determine whether an inquiry should be conducted before the hearing of the proceedings in respect of the offence. (2) The court may, at any time before an inquiry is commenced, determine that there is no longer a need for the inquiry to be held. 41 Procedure where question of unfitness raised after arraignment If the question of a defendant's unfitness to be tried is raised after the person is arraigned on a charge in respect of the offence, the court must hear any submissions relating to holding an inquiry in the absence of a jury which has been constituted for the purposes of the proceedings relating to the offence. 42 When an inquiry is required or may not be held (1) The court must conduct an inquiry to determine whether a defendant is unfit to be tried for an offence if— (a) the court determines that an inquiry should be conducted before the defendant is arraigned on a charge in respect of the offence and does not subsequently determine that the inquiry is not needed, or (b) the question of the defendant's unfitness to be tried is raised after the defendant is arraigned on a charge in respect of the offence. (2) The inquiry is to be held as soon as practicable after the court makes the determination or the question is raised after arraignment. (3) Despite subsection (1), the court is not required to hold an inquiry unless it appears to the court that the question of the defendant's unfitness to be tried for the offence has been raised in good faith. (4) Despite subsection (1), the court may determine not to hold an inquiry, dismiss the charge and order that the defendant be released if it is of the opinion, having regard to any of the following, that it is inappropriate to inflict any punishment— (a) the trivial nature of the charge or offence, (b) the nature of the defendant's mental health impairment or cognitive impairment, (c) any other matter the court thinks proper to consider. 43 Actions pending inquiry The court may do one or more of the following before holding an inquiry— (a) adjourn the proceedings, (b) grant the defendant bail in accordance with the Bail Act 2013, (c) order the defendant to be remanded in custody for a period not exceeding 28 days, (d) order the defendant to undergo a psychiatric examination or other examination, (e) order that a psychiatric report or other report relating to the defendant be obtained, (f) discharge a jury constituted for the purpose of the proceedings, (g) make other orders the court thinks appropriate. 44 Inquiry procedures (1) The question of a defendant's unfitness to be tried for an offence is to be determined by the judge alone. (2) At an inquiry, the defendant is to be represented by an Australian legal practitioner, unless the court otherwise allows. (3) An inquiry is not to be conducted in an adversarial manner. (4) The onus of proof of the question of a defendant's unfitness to be tried for an offence does not rest on any particular party to the proceedings. (5) In addition to any other matter the court may consider in determining whether the defendant is unfit to be tried for an offence, the court is to consider the following— (a) whether the trial process can be modified, or assistance provided, to facilitate the defendant's understanding and effective participation in the trial, (b) the likely length and complexity of the trial, (c) whether the defendant is represented by an Australian legal practitioner, or can obtain representation by an Australian legal practitioner. Note— The test for determining whether or not a person is unfit to be tried for an offence is set out in section 36. (6) A determination by the judge must include the principles of law applied by the judge and the findings of fact on which the judge relied. 45 Presumptions as to findings about unfitness It is presumed— (a) that a person who has, in accordance with this Part or on a review under Part 5, been found to be unfit to be tried for an offence continues to be unfit to be tried for the offence until the contrary is, on the balance of probabilities, determined to be the case, and (b) that a person who has, in accordance with this Part or on a review under Part 5, been found fit to be tried for an offence continues to be fit to be tried for the offence until the contrary is, on the balance of probabilities, determined to be the case. 46 Finding after inquiry that defendant is fit to be tried If a defendant is found fit to be tried following an inquiry, the proceedings brought against the person in respect of the offence are to recommence or to continue in accordance with the appropriate criminal procedures. 47 Finding after inquiry that defendant is unfit to be tried (1) If a defendant is found unfit to be tried for an offence following an inquiry, the court must also determine whether, on the balance of probabilities, during the period of 12 months after the finding of unfitness, the defendant— (a) may become fit to be tried for the offence, or (b) will not become fit to be tried for the offence. (2) The court may do one or more of the following after a finding that a defendant is unfit to be tried for an offence— (a) make an order discharging a jury constituted for the purpose of the proceedings, (b) adjourn the proceedings, (c) grant the defendant bail in accordance with the Bail Act 2013, (d) make an order remanding the defendant in custody, (e) make other orders that the court thinks appropriate. 48 Finding after inquiry that defendant will not become fit to be tried within 12 months (1) If the court determines that a defendant will not, during the period of 12 months after a finding by a court that the person is unfit to be tried for an offence, become fit to be tried for the offence, the defendant is to be dealt with under Division 3. (2) This section does not apply if the court is required to order the release of the defendant because of advice under section 53 that further proceedings will not be taken against the defendant in respect of the offence. 49 Tribunal review and court orders after finding that defendant may be fit to be tried within 12 months (1) The court must refer the defendant to the Tribunal for review if the court determines that the defendant is unfit to be tried for an offence and may become fit to be tried for the offence during the period of 12 months after the finding. (2) The court may grant the defendant bail in accordance with the Bail Act 2013 for a period not exceeding 12 months on being notified of a determination by the Tribunal under section 80 that the defendant has become fit to be tried for the offence. (3) As soon as practicable after an order is made or bail is granted under this section, the registrar of the court is to notify the Tribunal of the terms of the order or the grant of bail. 50 Finding by Tribunal that defendant is fit to be tried (1) If the court is notified by the Tribunal following a review that a defendant has become fit to be tried for an offence, the proceedings brought against the defendant in respect of the offence are to recommence or to continue in accordance with the appropriate criminal procedures. (2) A court is not to hold a further inquiry into the fitness of a defendant to be tried for an offence merely because the Tribunal notifies the court that the defendant has become fit to be tried for an offence. (3) Subsection (1) does not apply if the court is required to order the release of the defendant because of advice under section 53 that further proceedings will not be taken against the defendant in respect of the offence. 51 Finding by Tribunal that defendant will not become fit to be tried within 12 months (1) If the court is notified by the Tribunal following a review that a defendant has not and will not, during the period of 12 months after a finding by a court that the defendant is unfit to be tried for an offence, become fit to be tried for the offence, the defendant is to be dealt with under Division 3. (2) This section does not apply if the court is required to order the release of the defendant because of advice under section 53 that further proceedings will not be taken against the defendant in respect of the offence. 52 Committal proceedings following finding of fit to be tried (1) This section applies to a defendant who was committed for trial for an offence under Division 7 of Part 2 of Chapter 3 of the Criminal Procedure Act 1986. (2) The court may, on the application of the defendant or on its own motion, make an order remitting the matter to a Magistrate for the holding of a case conference under Division 5 of Part 2 of Chapter 3 of the Criminal Procedure Act 1986, if the defendant has, following an inquiry, been found fit to be tried for an offence. (3) The court must make the order on the application of the defendant unless it is satisfied that it is not in the interests of justice to do so or that the offence is not an offence in relation to which a case conference is required to be held under that Division. (4) The court may, on its own motion, make an order remitting the matter to a Magistrate for the holding of a case conference under Division 5 of Part 2 of Chapter 3 of the Criminal Procedure Act 1986 at any time, if it is satisfied that the question of the defendant's unfitness to be tried for an offence is not going to be raised in proceedings for the offence. (5) If a matter is remitted to a Magistrate, the matter is to be dealt with as if the defendant had not been committed for trial and the proceedings are taken to be a continuation of the original committal proceedings. (6) If no application is made or the matter is not remitted to a Magistrate, the matter is to be dealt with in accordance with section 50. 53 Advice as to whether further proceedings are to be taken (1) This section applies if— (a) the court determines that a defendant will not, during the period of 12 months after a finding by a court that the person is unfit to be tried for an offence, become fit to be tried for an offence, or (b) the Tribunal determines that a defendant has not become fit to be tried for an offence and will not become fit to be tried for an offence during the period of 12 months after a finding by a court that the person is unfit to be tried for an offence, or (c) the Tribunal determines that a defendant or a forensic patient has become fit to be tried for an offence after a finding by a court that the person is unfit to be tried for an offence or a special hearing has been held for an offence. (2) The court must obtain advice from the Director of Public Prosecutions as to whether or not further proceedings will be taken by the Director in respect of the offence. (3) The court must order the release of the defendant if the Director of Public Prosecutions advises that further proceedings will not be taken by the Director in respect of the offence. Note— This does not prevent the admission of the defendant as a voluntary or an involuntary patient under the Mental Health Act 2007. (4) The Director of Public Prosecutions must notify the Minister for Police and Emergency Services and the Minister for Health of a decision by the Director that no further proceedings will be taken by the Director in respect of the offences. Division 3 Special hearings 54 Nature of special hearings In this Act, a special hearing is a hearing for the purpose of ensuring, despite the unfitness of the defendant to be tried in accordance with the normal procedures, that the defendant is acquitted unless it can be proved to the required criminal standard of proof that, on the limited evidence available, the defendant committed the offence charged, or another offence available as an alternative to the offence charged. 55 When special hearings are held (1) A court must hold a special hearing as soon as practicable after the court or the Tribunal determines that a defendant will not, during the period of 12 months after a finding that the person is unfit to be tried for an offence, become fit to be tried for the offence. (2) This section does not apply if the court is required to order the release of the defendant because of advice under section 53 that further proceedings will not be taken against the defendant in respect of the offence. Note— This does not prevent the admission of the defendant as a voluntary or an involuntary patient under the Mental Health Act 2007. 56 Procedure for special hearings (1) Trial procedure A special hearing is to be conducted as nearly as possible as if it were a trial of criminal proceedings. (2) The court may, if it thinks it appropriate in the circumstances of the case, modify court processes to facilitate the effective participation by the defendant in the special hearing. (3) Representation At a special hearing, the defendant must, unless the court otherwise allows, be represented by an Australian legal practitioner. (4) The fact that the defendant has been found unfit to be tried for an offence is to be presumed not to be an impediment to the person's representation. (5) Plea of not guilty The defendant is taken to have pleaded not guilty in respect of the offence charged. (6) Defences The defendant may raise any defence that could properly be raised if the special hearing were an ordinary trial of criminal proceedings. (7) Evidence and participation by defendant The defendant is entitled to give evidence. (8) The court may permit the defendant not to appear, or exclude the defendant from appearing, at a special hearing if the court thinks it appropriate in the circumstances and the defendant or the defendant's Australian legal practitioner agrees. (9) Judge to try proceedings, unless jury election The question of whether the defendant at a special hearing has committed an offence charged or another offence available as an alternative is to be determined by the judge alone unless an election to have the matter determined by a jury is made by— (a) the defendant and the court is satisfied that the defendant sought and received advice about the election from an Australian legal practitioner and the defendant understood the advice, or (b) an Australian legal practitioner representing the defendant, or (c) the prosecutor. (10) Right to challenge jurors If a jury is to be constituted, the Australian legal practitioner (if any) representing the defendant may exercise the defendant's rights to challenge the jurors or jury. (11) Explanation to jury The court must explain the following matters to a jury constituted for the purposes of a special hearing— (a) the fact that the defendant is unfit to be tried in accordance with the normal procedures, (b) the meaning of unfitness to be tried, (c) the purpose of the special hearing, (d) the verdicts that are available to the jury, (e) the legal and practical consequences of the verdicts. 57 Amendment of indictment (1) The Director of Public Prosecutions may, with the leave of the court or the consent of an Australian legal practitioner representing the defendant, amend an indictment to which a special hearing relates. (2) The provisions of the Criminal Procedure Act 1986 apply to the amendment of an indictment under this section in the same way as they apply to the amendment of an indictment in ordinary criminal proceedings, subject to any modifications that the court considers appropriate in the circumstances. 58 Juries at special hearings (1) An election to have a special hearing determined by a jury must be made— (a) on a day before the day fixed for the special hearing, if the election is made by the defendant, or (b) at least 7 days before the day fixed for the special hearing, if the election is made by the prosecutor. (2) The defendant, or an Australian legal practitioner for the defendant, may subsequently elect to have the special hearing determined by a judge instead of a jury. (3) The Jury Act 1977 applies to the constitution of a jury, and to a jury constituted, for a special hearing in the same way as it applies to the constitution of a jury, and to a jury constituted, for a trial of criminal proceedings. (4) A member of a jury otherwise constituted for the purpose of a proceeding related to the same defendant and the same offence is not eligible to be a member of a jury constituted for the purposes of a special hearing. (5) Rules of court may be made with respect to elections to have a special hearing determined by a jury. 59 Verdicts at special hearings (1) The verdicts available at a special hearing include the following— (a) not guilty of the offence charged, (b) a special verdict of act proven but not criminally responsible, (c) that on the limited evidence available, the defendant committed the offence charged, (d) that on the limited evidence available, the defendant committed an offence available as an alternative to the offence charged. (2) A judge who determines a special hearing must include in the determination the principles of law applied by the judge and the findings of fact on which the judge relied. (3) A special verdict of act proven but not criminally responsible may only be entered under this section if the judge is satisfied that the requirements of section 28(1) and (2) are met. 60 Verdict of not guilty A defendant who is found not guilty of an offence at a special hearing is to be dealt with as if the defendant had been found not guilty of the offence at an ordinary trial of criminal proceedings. 61 Special verdict of act proven but not criminally responsible because of mental health impairment or cognitive impairment (1) A special verdict of act proven but not criminally responsible at a special hearing is taken for all purposes to be a verdict reached at an ordinary trial of criminal proceedings. (2) Without limiting subsection (1), the court may make any order or take any action in respect of the defendant that a court could make on reaching the same verdict under Part 3. 62 Verdict of offence committed on limited evidence available A verdict at a special hearing that on the limited evidence available the defendant committed the offence charged or an offence available as an alternative to the offence charged— (a) constitutes a qualified finding of guilt and does not constitute a basis in law for a conviction for the offence to which the finding relates, and (b) is subject to appeal in the same manner as a verdict in an ordinary trial of criminal proceedings, and (c) is taken to be a conviction for the purpose of enabling a victim of the offence to make a claim for compensation. 63 Penalties after finding of guilt (1) Application of section This section applies if a court finds at a special hearing that on the limited evidence available the defendant committed the offence charged or an offence available as an alternative to the offence charged. (2) Limiting terms If the court would have imposed a sentence of imprisonment for the offence if the special hearing had been an ordinary trial of criminal proceedings and the person had been fit to be tried for the offence, the court must nominate a term (a limiting term) that is the best estimate of the sentence that the court would have imposed on the defendant in those circumstances. (3) Other penalties and orders If the court determines that it would not have imposed a sentence of imprisonment, the court may impose any other penalty or make any order it might have imposed or made if the defendant had been found guilty of the offence in an ordinary trial of criminal proceedings. (4) The penalty or order is to be subject to appeal in the same manner as a penalty or order in an ordinary trial of criminal proceedings. (5) Factors for consideration in determining penalty Without limiting subsection (2) or (3), in determining a limiting term or other penalty, the court— (a) must take into account that, because of the defendant's mental health impairment or cognitive impairment, or both, the person may not be able to demonstrate mitigating factors for sentencing or make a guilty plea for the purposes of obtaining a sentencing discount, and (b) may apply a discount of a kind that represents part or all of the sentencing discounts that are capable of applying to a sentence because of those factors or a guilty plea, and (c) must take into account periods of the defendant's custody or detention before, during and after the special hearing that related to the offence. (6) Notice to Tribunal where no limiting term imposed If the court indicates that it would not have imposed a sentence of imprisonment in respect of a defendant, the court must notify the Tribunal that a limiting term is not to be nominated in respect of the person. 64 Commencement of limiting terms (1) A limiting term takes effect from when it is nominated unless— (a) the court determines it is taken to have effect from an earlier time, after taking into account periods of the defendant's custody or detention before, during and after the special hearing that related to the offence, or (b) the court directs that the term commence at a later time so as to be served consecutively with (or partly concurrently and partly consecutively with) some other limiting term nominated for the person or sentence of imprisonment imposed on the person. (2) Before making a direction that the term commence at a later time, the court is to take into account the following— (a) a sentence of imprisonment imposed in an ordinary trial of criminal proceedings may be subject to a non-parole period but a limiting term is not, (b) in an ordinary trial of criminal proceedings, consecutive sentences of imprisonment are to be imposed with regard to non-parole periods. 65 Referral to Tribunal after limiting term imposed (1) The court must refer the defendant to the Tribunal if it nominates a limiting term for the defendant and must notify the Tribunal of orders it makes under this section. (2) The court may order that the defendant be detained in a mental health facility, correctional centre, detention centre or other place pending the review of the defendant by the Tribunal. 66 Reports about defendant (1) The court may, following a verdict being reached at a special hearing and on its own motion, request a report by a forensic psychiatrist or other person of a class prescribed by the regulations, who is not currently involved in treating the defendant, as to the condition of the defendant and whether the release of the defendant is likely to seriously endanger the safety of the defendant or any member of the public. (2) The court may consider the report, and any other report of an expert that is tendered to the court for the purposes of this section, before determining what orders to make about the defendant. 67 Referral of defendant to Tribunal following special verdict The court must refer the defendant to the Tribunal if there is a special verdict of act proven but not criminally responsible at a special hearing and an order is not made for the unconditional release of the defendant. 68 Effect of finding that offence was committed on other proceedings for the offence (1) A verdict at a special hearing that on the limited evidence available the defendant committed the offence charged or an offence available as an alternative to the offence charged constitutes a bar to any other criminal proceedings for the same offence or substantially the same offence. (2) Despite subsection (1), criminal proceedings for the same offence or substantially the same offence may be commenced against a defendant if— (a) a limiting term has been nominated at the special hearing for the defendant, and (b) the limiting term has not expired, and (c) the defendant has not been released from custody as an inmate or discharged from detention as a forensic patient. (3) Despite subsection (1), criminal proceedings for the same offence or substantially the same offence may be commenced against a defendant if the defendant is subject to an extension order or interim extension order. (4) A defendant who has been released from custody under a conditional release order or leave order made by the Tribunal is not a person who has been released from custody for the purposes of subsection (2)(c). (5) A court must, in sentencing a defendant found guilty in ordinary criminal proceedings of the same offence or substantially the same offence, fully take into account periods of the defendant's custody or detention before, during and after the special hearing that related to the offence. Part 5 Forensic patients and correctional patients Division 1 General principles and concepts 69 Objects (1) The objects of this Part are as follows— (a) to protect the safety of members of the public, (b) to provide for the care, treatment and control of persons subject to criminal proceedings who have a mental health impairment or cognitive impairment, (c) to facilitate the care, treatment and control of any of those persons in correctional centres or detention centres through community treatment orders, (d) to facilitate the provision of hospital care or care in the community through community treatment orders for any of those persons who require involuntary treatment, (e) to give an opportunity for those persons to have access to appropriate care, (f) to protect the safety of victims of forensic patients and acknowledge the harm done to victims. (2) The objects of this Part extend to the provisions of Part 6. 70 Treatment, care and detention of patients (1) The principles set out in section 68 of the Mental Health Act 2007 apply to the administration of this Act with respect to forensic patients and correctional patients. (2) A forensic patient who is ordered to be detained in a mental health facility should, so far as practicable, be detained in a mental health facility or other facility that is appropriate to the patient's needs and appropriate having regard to the safety of the patient and other persons. 71 Application of provisions of Mental Health Act 2007 to forensic patients and correctional patients The following provisions of the Mental Health Act 2007 apply with respect to forensic patients and correctional patients— (a1) section 69A prohibiting the use of spit hoods, (a) section 70 for a medical examination of a person for the purposes of this Part, (b) sections 71–72A relating to carers, (c) section 73 if the patient is detained in a mental health facility. 72 Forensic patients (1) The following persons are forensic patients for the purposes of this Act— (a) a person who is found unfit to be tried for an offence and who is detained in a mental health facility, correctional centre, detention centre or other place, (b) a person for whom a limiting term has been nominated after a special hearing (including a person who is subsequently subject to an extension order or an interim extension order) and who is detained in a mental health facility, correctional centre, detention centre or other place or who is released from custody subject to conditions under an order made by the Tribunal, (c) a person who is the subject of a special verdict of act proven but not criminally responsible and who is detained in a mental health facility, correctional centre, detention centre or other place or who is released from custody subject to conditions under an order made by a court or the Tribunal, (d) a person who is a member of a class of persons prescribed by the regulations for the purposes of this section. (2) To avoid doubt, a person is not a forensic patient if the person has been found unfit to be tried for an offence and has been released on bail. 73 Correctional patients A person is a correctional patient for the purposes of this Act if— (a) the person has been transferred from a correctional centre or detention centre to a mental health facility while— (i) serving a sentence of imprisonment, or (ii) on remand, or (iii) subject to a high risk offender detention order, and (b) the person is not a forensic patient and has not ceased to be a correctional patient under section 104 or been classified as an involuntary patient under this Part. 74 Role of objects and principles provisions The provisions of sections 69 and 70 are intended to give guidance in the administration of this Act and do not create, or confer on any person, any right or entitlement enforceable at law. Division 2 General provisions relating to reviews by Tribunal 75 Matters Tribunal must consider that apply to all orders On a review or other proceedings under this Act relating to a person, the Tribunal must have regard to the following matters when determining what order to make about the person— (a) whether the person has a mental health impairment or cognitive impairment, (b) whether there are reasonable grounds for believing that care, treatment or control of the person is necessary for the person's own protection from serious harm or the protection of others from serious harm, (c) the continuing condition of the person, including any likely deterioration in the person's condition and the likely effects of that deterioration. 76 Unlawful absence from mental health facility or other place The Tribunal is not required to review the case of a person during a period in which the person is unlawfully absent from a mental health facility or other place in which the person has been detained under this Act. 77 Extension of mandatory review period (1) The period within which the following reviews must be held may, on the motion of the Tribunal or on the application of the forensic patient or correctional patient or a designated carer or the principal care provider of the patient, be extended by the Tribunal to a maximum of 12 months— (a) a mandatory review of a forensic patient under section 78(d), (e), (f) or (g), (b) a mandatory review of a correctional patient under section 91(b), (c) a review under section 100 of a person in custody who is subject to a community treatment order. (2) The Tribunal may grant an application to extend the review period if it is satisfied that— (a) there are reasonable grounds to grant the application, or (b) an earlier review is not required because— (i) there has been no change since the last review in the patient's condition and there is no apparent need for any change in existing orders relating to the patient, or (ii) there has been no change since the last review in the patient's condition and an earlier review may be detrimental to the condition of the patient. (3) This section does not apply to the first review of a forensic patient or to a review of a forensic patient who is subject to an extension order. Division 3 Reviews of forensic patients by Tribunal 78 Mandatory reviews of forensic patients The Tribunal must carry out reviews of forensic patients at the following times— (a) as soon as practicable after a limiting term is nominated by a court for a forensic patient, (b) as soon as practicable after a court finds at an inquiry that a defendant is unfit to be tried for an offence and may become fit to be tried for an offence within 12 months and the proceedings are adjourned, (c) in the case of a person for whom a court enters a special verdict of act proven but not criminally responsible, as soon as practicable after the court enters the verdict, (d) at intervals of 6 months during the period that a person is a forensic patient, (e) if a forensic patient is detained in a correctional centre or detention centre and is subject to a community treatment order, no later than 3 months after the community treatment order is made and at least once every 6 months during the term of the order, (f) as soon as practicable after being requested to carry out a review of a forensic patient by the Minister for Health, the Attorney General and Minister for the Prevention of Domestic Violence, the Minister for Counter Terrorism and Corrections or the Secretary, (g) as soon as practicable after being requested to carry out a review of a forensic patient by the medical superintendent of the mental health facility in which the patient is detained. 79 Tribunal may review patient at any time The Tribunal may carry out a review of a forensic patient at any time. 80 Reviews of persons found unfit to be tried for an offence (1) On a review of a person who has been found unfit to be tried for an offence, the Tribunal must determine whether the person has become fit to be tried for an offence. (2) The Tribunal must notify the court that made the finding of unfitness, the Director of Public Prosecutions and the person's legal representative if, on a review, it is of the opinion that the person reviewed— (a) has become fit to be tried for an offence, or (b) has not become fit to be tried for an offence and will not, during the period of 12 months after the finding of unfitness by the court, become fit to be tried for the offence. (3) The Tribunal must make a determination as to the fitness of a person to be tried for an offence on the balance of probabilities. Note— The presumptions in section 45 apply to the person. 81 Orders that may be made on reviews generally On a review of a forensic patient under this Act, the Tribunal may make an order as to— (a) the patient's detention, care or treatment in a mental health facility, correctional centre, detention centre or other place, or (b) the patient's release (either unconditionally or subject to conditions). 82 Orders for transfer of forensic patients On a review under this Part, the Tribunal may make an order for the transfer of a forensic patient to a mental health facility, correctional centre, detention centre or other place. 83 Orders for release of forensic patients (1) An order for release of a forensic patient under this Division may be made despite any other provision of this Act or any order of a court under this Act. (2) Despite subsection (1), the Tribun