Criminal Law Consolidation Act 1935


Part 7A—Goods contamination and comparable offences



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Part 7A—Goods contamination and comparable offences

259—Interpretation

In this Part—

act prejudicing public health or safety includes—

(a) interference with the provision of water, electricity, gas, sewerage, drainage, or waste disposal in a way that prejudices, or could prejudice, the health or safety of the public;

(b) interference with a transport or communication system in a way that prejudices, or could prejudice, the health or safety of the public;

(c) interference with any other facility, system or service on which the health or safety of the public is dependent in a way that prejudices, or could prejudice, the health or safety of the public;



benefit extends to non-material benefits (or what might be conceived to be benefits)—so that a person who (for example) engages in conduct out of anger or malice is taken to gain a benefit from that conduct by indulging that anger or malice;

consumer of goods means a purchaser of the goods or a person who consumes or uses the goods;

to contaminate goods means to contaminate or interfere with the goods;

goods means any article or substance offered for sale, or intended to be offered for sale, to the public;

public includes a section of the public (such as consumers of goods of a particular description);

threat includes—

(a) a threat to be implied from conduct;

(b) a conditional threat.

260—Unlawful acts of goods contamination or other acts prejudicing the health or safety of the public

(1) A person is guilty of an offence if the person commits an act to which this section applies intending—

(a) to cause prejudice, to create a risk of prejudice, or to create an apprehension of a risk of prejudice, to the health or safety of the public; and

(b) by doing so—

(i) to gain a benefit for himself, herself or another; or

(ii) to cause loss or harm to another; or

(iii) to cause public alarm or anxiety.

Maximum penalty: Imprisonment for 15 years.

(2) A person commits an act to which this section applies if the person—

(a) contaminates goods or commits some other act prejudicing public health or safety; or

(b) makes it appear that—

(i) goods have been, or are about to be, contaminated; or

(ii) some other act prejudicing public health or safety has been, or is about to be, committed; or

(c) makes a threat to contaminate goods or to commit some other act prejudicing public health or safety; or

(d) falsely claims that goods have been or are about to be contaminated, or some other act prejudicing public health or safety has been, or is about to be, committed.

(3) In this section, a reference to the contamination of goods is limited to contamination in a way that prejudices or could prejudice the health or safety of a consumer.

261—Goods contamination unrelated to issues of public health and safety

A person is guilty of an offence if the person—

(a) contaminates goods; or

(b) makes it appear that goods have been, or are about to be contaminated; or

(c) threatens to contaminate goods; or

(d) falsely claims that goods have been or are about to be contaminated,

intending—

(e) to influence the public against purchasing the goods or goods of the relevant class or to create an apprehension that the public will be so influenced; and

(f) by doing so—

(i) to gain a benefit for himself, herself or another; or

(ii) to cause loss or harm to another.

Maximum penalty: Imprisonment for 5 years.

Part 7B—Accessories

267—Aiding and abetting

A person who aids, abets, counsels or procures the commission of an offence is liable to be prosecuted and punished as a principal offender.

Part 8—Intoxication

267A—Definitions

(1) In this Part—

alleged offence means the offence with which the defendant is charged but also extends to any other offence of which the defendant could be found guilty on the charge;

consciousness includes—

(a) volition;

(b) intention;

(c) knowledge;

(d) any other mental state or function relevant to criminal liability;

consumption of a drug includes—

(a) injection of the drug (either by the person to whom the drug is administered or someone else); and

(b) inhalation of the drug; and

(c) any other means of introducing the drug into the body;



drug means alcohol or any other substance that is capable (either alone or in combination with other substances) of influencing mental functioning;

medical practitioner means a registered medical practitioner or registered dentist;

objective element of an offence means an element of the offence that is not a subjective element;

recreational use of a drug—consumption of a drug is to be regarded as recreational use of the drug unless—

(a) the drug is administered against the will, or without the knowledge, of the person who consumes it; or

(b) the consumption occurs accidentally; or

(c) the person who consumes the drug does so under duress, or as a result of fraud or reasonable mistake; or

(d) the consumption is therapeutic;

self-induced—see subsections (2) and (3);

serious harm means—

(a) serious mental or physical harm; or

(b) loss of, or damage to property, where the amount or value of the loss or damage exceeds $10 000;

subjective element of an offence means a mental element of the offence and includes voluntariness;

therapeutic—the consumption of a drug is to be regarded as therapeutic if—

(a) the drug is prescribed by, and consumed in accordance with the directions of, a medical practitioner; or

(b) the drug—

(i) is a drug of a kind available, without prescription, from registered pharmacists; and

(ii) is consumed for a purpose recommended by the manufacturer and in accordance with the manufacturer's instructions.

(2) Intoxication resulting from the recreational use of a drug is to be regarded as self induced.

(3) If a person becomes intoxicated as a result of the combined effect of the therapeutic consumption of a drug and the recreational use of the same or another drug, the intoxication is to be regarded as self induced even though in part attributable to therapeutic consumption.

268—Mental element of offence to be presumed in certain cases

(1) If the objective elements of an alleged offence are established against a defendant but the defendant's consciousness was (or may have been) impaired by intoxication to the point of criminal irresponsibility at the time of the alleged offence, the defendant is nevertheless to be convicted of the offence if it is established that the defendant—

(a) formed an intention to commit the offence before becoming intoxicated; and

(b) consumed intoxicants in order to strengthen his or her resolve to commit the offence.

(2) If the objective elements of an alleged offence are established against a defendant but the defendant's consciousness was (or may have been) impaired by self-induced intoxication to the point of criminal irresponsibility at the time of the alleged offence, the defendant is nevertheless to be convicted of the offence if the defendant would, if his or her conduct had been voluntary and intended, have been guilty of the offence.

(3) However, subsection (2) does not extend to—

(a) a case in which it is necessary to establish that the defendant foresaw the consequences of his or her conduct; or

(b) except where the alleged offence is an offence against section 48 (rape)—a case in which it is necessary to establish that the defendant was aware of the circumstances surrounding his or her conduct.

Example—

A, whose consciousness is impaired by self-induced intoxication to the point of criminal irresponsibility at the time of the alleged offence, beats B up and B dies of the injuries. In this case, A could be convicted of manslaughter but not of murder (because A is taken to have intended to do the act that results in death but not the death).

(4) If—

(a) the objective elements of an alleged offence are established against a defendant but the defendant's consciousness was (or may have been) impaired by self-induced intoxication to the point of criminal irresponsibility at the time of the alleged offence; and

(b) the defendant's conduct resulted in death; and

(c) the defendant is not liable to be convicted of the offence under subsection (1) or (2); and

(d) the defendant's conduct, if judged by the standard appropriate to a reasonable and sober person in the defendant's position, falls so short of that standard that it amounts to criminal negligence,

the defendant may be convicted of manslaughter and liable to imprisonment for life.

(5) If—

(a) the objective elements of an alleged offence are established against a defendant but the defendant's consciousness was (or may have been) impaired by self induced intoxication to the point of criminal irresponsibility at the time of the alleged offence; and

(b) the defendant's conduct resulted in serious harm (but not death); and

(c) the defendant is not liable to be convicted of the offence under subsection (1) or (2); and

(d) the defendant's conduct, if judged by the standard appropriate to a reasonable and sober person in the defendant's position, falls so short of that standard that it amounts to criminal negligence,

the defendant may be convicted of causing serious harm by criminal negligence.

Maximum penalty: Imprisonment for 4 years.

(6) A defendant's consciousness is taken to have been impaired to the point of criminal irresponsibility at the time of the alleged offence if it is impaired to the extent necessary at common law for an acquittal by reason only of the defendant's intoxication.

269—Question of intoxication must be specifically raised

(1) On the trial of a defendant who was (or may have been) intoxicated at the time of the alleged offence, the question whether the defendant's consciousness was, or may have been, impaired by intoxication to the point of criminal irresponsibility—

(a) is not to be put to the jury by the judge, the prosecutor or the defendant; and

(b) if raised by the jury itself, is to be withdrawn from the jury's consideration,

unless the defendant or the prosecutor specifically asks the judge to address the jury on that question.

(2) A defendant's consciousness is taken to have been impaired to the point of criminal irresponsibility at the time of an alleged offence if, because of impairment of consciousness, a subjective element of the alleged offence cannot be established against the defendant.

Part 8A—Mental impairment

Division 1—Preliminary

269A—Interpretation

(1) In this Part—



authorised person means a person authorised by the Minister to exercise the powers of an authorised person under this Part;

defence—a defence exists if, even though the objective elements of an offence are found to exist, the defendant is entitled to the benefit of an exclusion, limitation or reduction of criminal liability at common law or by statute;

defensible—a defendant's conduct is to be regarded as defensible in proceedings under this Part if, on the trial of the offence to which the proceedings relate, a defence might be found to exist;

intoxication means a temporary disorder, abnormality or impairment of the mind that results from the consumption or administration of intoxicants and will pass on metabolism or elimination of intoxicants from the body;

judge includes magistrate;

mental illness means a pathological infirmity of the mind (including a temporary one of short duration)1;

mental impairment includes—

(a) a mental illness; or

(b) an intellectual disability; or

(c) a disability or impairment of the mind resulting from senility,

but does not include intoxication;

Minister means the Minister responsible for the administration of the Mental Health Act 1993;

next of kin of a person means a person's spouse, domestic partner, parents and children;

objective element of an offence means an element of an offence that is not a subjective element;

psychiatrist means a person registered under the Health Practitioner Regulation National Law as a specialist in psychiatry;

subjective element of an offence means voluntariness, intention, knowledge or some other mental state that is an element of the offence;

supervision order — see section 269O;

victim, in relation to an offence or conduct that would, but for the perpetrator's mental impairment, have constituted an offence, means a person who suffered significant mental or physical injury as a direct consequence of the offence or the conduct.

(2) For the purposes of this Part—

(a) the question whether a person was mentally competent to commit an offence is a question of fact;

(b) the question whether a person is mentally unfit to stand trial on a charge of an offence is a question of fact.



Note—

1 A condition that results from the reaction of a healthy mind to extraordinary external stimuli is not a mental illness, although such a condition may be evidence of mental illness if it involves some abnormality and is prone to recur (see R v Falconer (1990) 171 CLR 30).

269B—Distribution of judicial functions between judge and jury

(1) An investigation under this Part by the Supreme Court or the District Court into—

(a) a defendant's mental competence to commit an offence or a defendant's mental fitness to stand trial; or

(b) whether elements of the offence have been established,

is to be conducted before a jury unless the defendant has elected to have the matter dealt with by a judge sitting alone.

(2) The same jury may deal with issues arising under this Part about a defendant's mental competence to commit an offence, or fitness to stand trial, and the issues on which the defendant is to be tried, unless the trial judge thinks there are special reasons to have separate juries.

(3) Any other powers or functions conferred on a court by this Part are to be exercised by the court constituted of a judge sitting alone.

(4) The defendant's right to elect to have an investigation under this Part conducted by a judge sitting alone is not subject to any statutory qualification.1



Note—

1 The intention is to ensure that the right to elect for trial by judge alone is unfettered by the statutory qualifications on that right imposed by the Juries Act 1927 (thus preserving the principle enunciated in R v T [1999] SASC 429 on this point).

269BA—Charges on which alternative verdicts are possible

(1) A person charged with an offence is taken, for the purposes of this Part, to be charged in the alternative with any lesser offence for which a conviction is possible on that charge.

(2) It follows that a trial of a charge on which an alternative verdict for a lesser offence is possible is taken to be a trial of a charge of each of the offences for which a conviction is possible.


Division 2—Mental competence to commit offences

269C—Mental competence

A person is mentally incompetent to commit an offence if, at the time of the conduct alleged to give rise to the offence, the person is suffering from a mental impairment and, in consequence of the mental impairment—

(a) does not know the nature and quality of the conduct; or

(b) does not know that the conduct is wrong; or

(c) is unable to control the conduct.

269D—Presumption of mental competence

A person's mental competence to commit an offence is to be presumed unless the person is found, on an investigation under this Division, to have been mentally incompetent to commit the offence.

269E—Reservation of question of mental competence

(1) If, on the trial of a person for an offence—

(a) the defendant raises a defence of mental incompetence; or

(b) the court decides, on application by the prosecution or on its own initiative, that the defendant's mental competence to commit the offence should be investigated in the interests of the proper administration of justice,

the question of the defendant's mental competence to commit the offence must be separated from the remainder of the trial.

(2) The trial judge has a discretion to proceed first with the trial of the objective elements of the offence or with the trial of the mental competence of the defendant.

(3) If, at the preliminary examination of a charge of an indictable offence, the question of the defendant's mental competence to commit the offence arises, the question must be reserved for consideration by the court of trial.

269F—What happens if trial judge decides to proceed first with trial of defendant's mental competence to commit offence

If the trial judge decides that the defendant's mental competence to commit the offence is to be tried first, the court proceeds as follows.

A—Trial of defendant's mental competence

(1) The court—

(a) must hear relevant evidence and representations put to the court by the prosecution and the defence on the question of the defendant's mental competence to commit the offence; and

(b) may require the defendant to undergo an examination by a psychiatrist or other appropriate expert and require the results of the examination to be reported to the court.

(2) The power to require an examination and report under subsection (1)(b) may be exercised—

(a) on the application of the prosecution or the defence; or

(b) if the judge considers the examination and report necessary to prevent a possible miscarriage of justice—on the judge's own initiative.

(3) At the conclusion of the trial of the defendant's mental competence, the court must decide whether it has been established, on the balance of probabilities, that the defendant was at the time of the alleged offence mentally incompetent to commit the offence and—

(a) if so—must record a finding to that effect;

(b) if not—must record a finding that the presumption of mental competence has not been displaced and proceed with the trial in the normal way.

(5) The court may, if the prosecution and the defence agree—

(a) dispense with, or terminate, an investigation into a defendant's mental competence to commit an offence; and

(b) record a finding that the defendant was mentally incompetent to commit the offence.

B—Trial of objective elements of offence

(1) If the court records a finding that the defendant was mentally incompetent to commit the offence, the court must hear evidence and representations put to the court by the prosecution and the defence relevant to the question whether the court should find that the objective elements of the offence are established.

(2) If the court is satisfied that the objective elements of the offence are established beyond reasonable doubt, the court must record a finding that the objective elements of the offence are established.

(3) If the court finds that the objective elements of the offence are established, the court must find the defendant not guilty of the offence but declare the defendant to be liable to supervision under this Part; but otherwise the court must find the defendant not guilty of the offence and discharge the defendant.

(4) On the trial of the objective elements of an offence, the court is to exclude from consideration any question of whether the defendant's conduct is defensible.

269G—What happens if trial judge decides to proceed first with trial of objective elements of offence

If the trial judge decides to proceed first with the trial of the objective elements of the offence, the court proceeds as follows.

A—Trial of objective elements of offence

(1) The court must first hear evidence and representations put to the court by the prosecution and the defence relevant to the question whether the court should find that the objective elements of the offence are established against the defendant.

(2) If the court is satisfied that the objective elements of the offence are established beyond reasonable doubt, the court must record a finding that the objective elements of the offence are established; but otherwise the court must find the defendant not guilty of the offence and discharge the defendant.

(3) On the trial of the objective elements of an offence, the court is to exclude from consideration any question of whether the defendant's conduct is defensible.



B—Trial of defendant's mental competence

(1) If the court records a finding that the objective elements of the offence are established, the court—

(a) must hear relevant evidence and representations put to the court by the prosecution and the defence on the question of the defendant's mental competence to commit the offence; and

(b) may require the defendant to undergo an examination by a psychiatrist or other appropriate expert and require the results of the examination to be reported to the court.

(2) The power to require an examination and report under subsection (1)(b) may be exercised—

(a) on the application of the prosecution or the defence; or

(b) if the judge considers the examination and report necessary to prevent a possible miscarriage of justice—on the judge's own initiative.

(3) At the conclusion of the trial of the defendant's mental competence, the court must decide whether it has been established, on the balance of probabilities, that the defendant was at the time of the alleged offence mentally incompetent to commit the offence and—

(a) if so—must declare that the defendant was mentally incompetent to commit the offence, find the defendant not guilty of the offence and declare the defendant to be liable to supervision under this Part;

(b) if not—must record a finding that the presumption of mental competence has not been displaced and proceed with the trial in the normal way.

(4) If the trial is to proceed under subsection B(3)(b), the objective elements of the offence are to be accepted as established.

(5) The court may, if the prosecution and the defence agree—

(a) dispense with, or terminate, an investigation into a defendant's mental competence to commit an offence; and

(b) declare that the defendant was mentally incompetent to commit the offence, find the defendant not guilty of the offence, and declare the defendant to be liable to supervision under this Part.



Division 3—Mental unfitness to stand trial

269H—Mental unfitness to stand trial

A person is mentally unfit to stand trial on a charge of an offence if the person's mental processes are so disordered or impaired that the person is—

(a) unable to understand, or to respond rationally to, the charge or the allegations on which the charge is based; or

(b) unable to exercise (or to give rational instructions about the exercise of) procedural rights (such as, for example, the right to challenge jurors); or

(c) unable to understand the nature of the proceedings, or to follow the evidence or the course of the proceedings.

269I—Presumption of mental fitness to stand trial

A person's mental fitness to stand trial is to be presumed unless it is established, on an investigation under this Division, that the person is mentally unfit to stand trial.

269J—Order for investigation of mental fitness to stand trial

(1) If there are reasonable grounds to suppose that a person is mentally unfit to stand trial, the court before which the person is to be tried may order an investigation under this Division of the defendant's mental fitness to stand trial.

(2) The court's power to order an investigation into the defendant's mental fitness to stand trial may be exercised—

(a) on the application of the prosecution or the defence; or

(b) if the judge considers the investigation necessary to prevent a possible miscarriage of justice—on the judge's own initiative.

(3) If a court orders an investigation into the defendant's mental fitness to stand trial after the trial begins, the court may adjourn or discontinue the trial to allow for the investigation.

(4) If a court before which a preliminary examination of an indictable offence is conducted is of the opinion that the defendant may be mentally unfit to stand trial, the preliminary examination may continue, but the court must raise for consideration by the court of trial the question whether there should be an investigation under this Division of the defendant's mental fitness to stand trial.

269K—Preliminary prognosis of defendant's condition

(1) Before formally embarking on an investigation under this Division of a defendant's mental fitness to stand trial, a court may require production of psychiatric or other expert reports that may exist on the defendant's mental condition and may, if it thinks fit, itself have a report prepared on the defendant's mental condition.

(2) If it appears from a report that the defendant is mentally unfit to stand trial but there is a reasonable prospect that the defendant will regain the necessary mental capacity over the next 12 months, the court may adjourn the defendant's trial for not more than 12 months.

(3) If after the adjournment the court is of the opinion that the grounds on which the investigation was thought to be necessary no longer exist, the court may revoke the order for the investigation and the trial will then proceed in the normal way.

269L—Trial judge's discretion about course of trial

If the court orders an investigation into a defendant's mental fitness to stand trial, the question of the defendant's mental fitness to stand trial may, at the discretion of the trial judge, be separately tried before any other issue that is to be tried or after a trial of the objective elements of the alleged offence.

269M—What happens if trial judge decides to proceed first with trial of defendant's mental fitness to stand trial

If the trial judge decides that the defendant's mental fitness to stand trial is to be tried first, the court proceeds as follows.

A—Trial of defendant's mental fitness to stand trial

(1) The court—

(a) must hear relevant evidence and representations put to the court by the prosecution and the defence on the question of the defendant's mental fitness to stand trial; and

(b) may require the defendant to undergo an examination by a psychiatrist or other appropriate expert and require the results of the examination to be reported to the court.

(2) The power to require an examination and report under subsection (1)(b) may be exercised—

(a) on the application of the prosecution or the defence; or

(b) if the judge considers the examination and report necessary to prevent a possible miscarriage of justice—on the judge's own initiative.

(3) At the conclusion of the trial of the defendant's mental fitness to stand trial, the court must decide whether it has been established, on the balance of probabilities, that the defendant is mentally unfit to stand trial and—

(a) if so—must record a finding to that effect;

(b) if not—must proceed with the trial in the normal way.

(5) The court may, if the prosecution and the defence agree—

(a) dispense with, or terminate, an investigation into a defendant's fitness to stand trial; and

(b) record a finding that the defendant is mentally unfit to stand trial.

B—Trial of objective elements of offence

(1) If the court records a finding that the defendant is mentally unfit to stand trial, the court must hear evidence and representations put to the court by the prosecution and the defence relevant to the question whether a finding should be recorded under this section that the objective elements of the offence are established.

(2) If the court is satisfied beyond reasonable doubt that the objective elements of the offence are established, the court must record a finding to that effect and declare the defendant to be liable to supervision under this Part; but otherwise the court must find the defendant not guilty of the offence and discharge the defendant.

(3) On the trial of the objective elements of an offence under this section, the court is to exclude from consideration any question of whether the defendant's conduct is defensible.

269N—What happens if trial judge decides to proceed first with trial of objective elements of offence

If the trial judge decides to proceed first with the trial of the objective elements of the offence, the court proceeds as follows.



A—Trial of objective elements of offence

(1) The court must first hear evidence and representations put to the court by the prosecution and the defence relevant to the question whether the court should find that the objective elements of the offence are established.

(2) If the court is satisfied beyond reasonable doubt that the objective elements of the offence are established, the court must record a finding to that effect; but otherwise the court must find the defendant not guilty of the offence and discharge the defendant.

(3) On the trial of the objective elements of an offence under this section, the court is to exclude from consideration any question of whether the defendant's conduct is defensible.



B—Trial of defendant's mental fitness to stand trial

(1) If the court records a finding that the objective elements of the offence are established, the court—

(a) must hear relevant evidence and representations put to the court by the prosecution and the defence on the question of the defendant's mental fitness to stand trial; and

(b) may require the defendant to undergo an examination by a psychiatrist or other appropriate expert and require the results of the examination to be reported to the court.

(2) The power to require an examination and report under subsection (1)(b) may be exercised—

(a) on the application of the prosecution or the defence; or

(b) if the judge considers the examination and report necessary to prevent a possible miscarriage of justice—on the judge's own initiative.

(3) If the court is satisfied on the balance of probabilities that the defendant is mentally unfit to stand trial, the court must record a finding to that effect and declare the defendant to be liable to supervision under this Part.

(4) If the court is not satisfied on the balance of probabilities that the defendant is mentally unfit to stand trial, the court must proceed with the trial of the remaining issues (or may, at its discretion, re-start the trial).

(5) The court may, if the prosecution and the defence agree—

(a) dispense with, or terminate, an investigation into a defendant's mental fitness to stand trial; and

(b) declare that the defendant is mentally unfit to stand trial, and declare the defendant to be liable to supervision under this Part.



Division 4—Disposition of persons declared to be liable to supervision under this Part

269O—Supervision

(1) The court by which a defendant is declared to be liable to supervision under this Part may—

(a) release the defendant unconditionally; or

(b) make an order (a supervision order)—

(i) committing the defendant to detention under this Part; or

(ii) releasing the defendant on licence on conditions decided by the court and specified in the licence.

(2) If a court makes a supervision order, the court must fix a term (a limiting term) equivalent to the period of imprisonment or supervision (or the aggregate period of imprisonment and supervision) that would, in the court's opinion, have been appropriate if the defendant had been convicted of the offence of which the objective elements have been established1.

(3) At the end of the limiting term, a supervision order in force against the defendant under this Division lapses.

Note—

1 The court should fix a limiting term by reference to the sentence that would have been imposed if the defendant had been found guilty of the relevant offence and without taking account of the defendant's mental impairment.

269P—Variation or revocation of supervision order

(1) At any time during the limiting term, the court may, on the application of the Crown, the defendant, Parole Board, the Public Advocate or another person with a proper interest in the matter, vary or revoke a supervision order and, if the order is revoked, make, in substitution for the order, any other order that the court might have made under this Division in the first instance.

(2) If the court refuses an application by or on behalf of a defendant for variation or revocation of a supervision order, a later application for variation or revocation of the order cannot be made by or on behalf of the defendant for six months or such greater or lesser period as the court may direct on refusing the application.

269Q—Report on mental condition of the defendant

(1) If a defendant is declared to be liable to supervision under this Part, the Minister must, within 30 days after the date of the declaration, prepare and submit to the court by which the declaration was made a report, prepared by a psychiatrist or other appropriate expert, on the mental condition of the defendant containing—

(a) a diagnosis and prognosis of the condition; and

(b) a suggested treatment plan for managing the defendant's condition.

(2) If a supervision order is made against the defendant, the Minister must arrange to have prepared and submitted to the court, at intervals of not more than 12 months during the limiting term, a report containing—

(a) a statement of any treatment that the defendant has undergone since the last report; and

(b) any changes to the prognosis of the defendant's condition and the treatment plan for managing the condition.

269R—Reports and statements to be provided to court

(1) For the purpose of assisting the court to determine proceedings under this Division, the Crown must provide the court with a report setting out, so far as reasonably ascertainable, the views of—

(a) the next of kin of the defendant; and

(b) the victim (if any) of the defendant's conduct; and

(c) if a victim was killed as a result of the defendant's conduct—the next of kin of the victim.

(2) A report is not, however, required under subsection (1) if the purpose of the proceeding is—

(a) to determine whether a defendant who has been released on licence should be detained or subjected to a more rigorous form of supervision; or

(b) to vary, in minor respects, the conditions on which a defendant is released on licence.

(3) If a court is fixing a limiting term in proceedings under this Division relating to an alleged indictable offence or prescribed summary offence, a person who has suffered injury, loss or damage resulting from the defendant's conduct may furnish the court with a statement of a kind referred to in section 7A of the Criminal Law (Sentencing) Act 1988 (a victim impact statement), as if the defendant had been convicted of the offence and the court was determining sentence (and the court must deal with the statement in all respects as if it were a statement furnished under that section).

(4) However, the court need not comply with section 7A(3b) and (3c) of the Criminal Law (Sentencing) Act 1988 if the court is satisfied that—

(a) the defendant is incapable of understanding the victim impact statement; or

(b) having regard to the nature of the defendant's mental impairment, it would be inappropriate for the defendant to be present.

(5) If a court is fixing a limiting term in proceedings under this Division, the Crown or the Commissioner for Victim's Rights may furnish the court with a statement of a kind referred to in section 7B of the Criminal Law (Sentencing) Act 1988 (a neighbourhood impact statement or a social impact statement) as if the court were determining sentence for an offence (and the court must deal with the statement in all respects as if it were a statement furnished under that section).

(6) In this section—



prescribed summary offence has the same meaning as in section 7A of the Criminal Law (Sentencing) Act 1988.

269S—Principle on which court is to act

In deciding whether to release a defendant under this Division, or the conditions of a licence, the court must apply the principle that restrictions on the defendant's freedom and personal autonomy should be kept to the minimum consistent with the safety of the community.

269T—Matters to which court is to have regard

(1) In deciding proceedings under this Division, the court should have regard to—

(a) the nature of the defendant's mental impairment; and

(b) whether the defendant is, or would if released be, likely to endanger another person, or other persons generally; and

(c) whether there are adequate resources available for the treatment and support of the defendant in the community; and

(d) whether the defendant is likely to comply with the conditions of a licence; and

(e) other matters that the court thinks relevant.

(2) The court cannot release a defendant under this Division, or significantly reduce the degree of supervision to which a defendant is subject unless the court—

(a) has considered at least three reports (expert reports) each prepared by a different psychiatrist or other appropriate expert who has personally examined the defendant, on—

(i) the mental condition of the defendant; and

(ii) the possible effects of the proposed action on the behaviour of the defendant; and

(b) has considered the report most recently submitted to the court by the Minister under this Division; and

(c) has considered the report on the attitudes of victims and next of kin prepared under this Division; and

(d) is satisfied that—

(i) the defendant's next of kin; and

(ii) the victim (if any) of the defendant's conduct; and

(iii) if a victim was killed as a result of the defendant's conduct—the next of kin of the victim,

have been given reasonable notice of the proceedings.

(2a) However, the court may act on the basis of one or two expert reports if—

(a) the supervision order arose from proceedings based on a charge of a summary (rather than an indictable) offence; and

(b) satisfied that, in the circumstances of the case, the report or reports adequately cover the matters on which the court needs expert advice.

(3) Notice need not be given under subsection (2)(d) to a person whose whereabouts have not, after reasonable inquiry, been ascertained.

269U—Revision of supervision order

(1) If a person who has been released on licence under this Division contravenes or is likely to contravene a condition of the licence, the court by which the supervision order was made may, on application by the Crown (which may be made, in a case of urgency, by telephone), review the supervision order.

(2) After allowing the Crown and the person subject to the order a reasonable opportunity to be heard on the application for review, the court may—

(a) confirm the present terms of the supervision order; or

(b) amend the order so that it ceases to provide for release on licence and provides instead for detention; or

(c) amend the order by varying the conditions of the licence,

and make any further order or direction that may be appropriate in the circumstances.

(3) When an application for review of a supervision order is made, the court may issue a warrant to have the person subject to the order arrested and brought before the court and may, if appropriate, make orders for detention of that person until the application is determined.

269V—Custody, supervision and care

(1) If a defendant is committed to detention under this Part, the defendant is in the custody of the Minister and the Minister may give directions for the custody, supervision and care of the defendant the Minister considers appropriate.

(2) The Minister may—

(a) place the defendant under the custody, supervision and care of another; and

(b) if there is no practicable alternative—direct that a defendant be kept in custody in a prison.

(3) Supervisory responsibilities arising from conditions on which a person is released on licence are to be divided between the Parole Board and the Minister in the following way:

(a) the supervisory responsibilities are to be exercised by the Minister insofar as they relate to treating or monitoring the mental condition of the person; and

(b) the supervisory responsibilities are in all other respects to be exercised by the Parole Board.

(4) The Minister or the Parole Board (as the case may be) may delegate a power or function under this section—

(a) to a person for the time being performing particular duties or holding or acting in a particular position; or

(b) to any other person or body that, in the delegator's opinion, is competent to perform or exercise the relevant functions or powers.

(5) A delegation under subsection (4)—

(a) must be by instrument in writing; and

(b) may be absolute or conditional; and

(c) does not derogate from the ability of the delegator to act in any matter; and

(d) is revocable at will by the delegator.

269VA—Effect of supervening imprisonment

(1) If a person who has been released on licence under this Division commits an offence while subject to the licence and is sentenced to imprisonment for the offence, the supervision order is suspended for the period the person is in prison serving the term of imprisonment.

(2) In determining when the term of a supervision order comes to an end, the period of a suspension under subsection (1) is not to be taken into account.



Division 5—Miscellaneous

269W—Counsel to have independent discretion

(1) If the defendant is unable to instruct counsel on questions relevant to an investigation under this Part, the counsel may act, in the exercise of an independent discretion, in what he or she genuinely believes to be the defendant's best interests.

(2) If the counsel for the defendant in criminal proceedings (apart from proceedings under this Part) has reason to believe that the defendant is unable, because of mental impairment, to give rational instructions on questions relevant to the proceedings (including whether to be tried by judge alone), the counsel may act, in the exercise of an independent discretion, in what the counsel genuinely believes to be the defendant's best interests.

269WA—Power to order examination etc in pre-trial proceedings

(1) If in pre-trial proceedings it appears to the court that it might expedite the trial to order the examination of the defendant under this section in anticipation of trial, the court may, by order—

(a) require the defendant to undergo an examination by a psychiatrist or other appropriate expert; and

(b) require that the results of the examination be reported to the court.

(2) The prosecution and the defence are entitled to access to the report.

269X—Power of court to deal with defendant before proceedings completed

(1) If there is to be an investigation into a defendant's mental competence to commit an offence, or mental fitness to stand trial, or a court conducting a preliminary examination reserves the question whether there should be such an investigation for consideration by the court of trial, the court by which the investigation is to be conducted, or the court reserving the question for consideration, may—

(a) release the defendant on bail to appear later for the purposes of the investigation; or

(b) commit the defendant to an appropriate form of custody (but not a prison unless the court is satisfied that there is, in the circumstances, no practicable alternative) until the conclusion of the investigation.

(2) If a court declares a defendant to be liable to supervision under this Part, but unresolved questions remain about how the court is to deal with the defendant, the court may—

(a) release the defendant on bail to appear subsequently to be dealt with by the court; or

(b) commit the defendant to some appropriate form of custody (but not a prison unless the court is satisfied that there is, in the circumstances of the case, no practicable alternative) until some subsequent date when the defendant is to be brought again before the court.

269Y—Appeals

(1) An appeal lies to the appropriate appellate court against a declaration that a defendant is liable to supervision under this Part in the same way as an appeal against a conviction.

(2) An appeal lies to the appropriate appellate court against a supervision order in the same way as an appeal against sentence.

(3) An appeal lies with the permission of the court of trial or the appropriate appellate court against a key decision by the court of trial.

(4) A key decision is—

(a) a decision that the defendant was, or was not, mentally competent to commit the offence charged against the defendant; or

(b) a decision that the defendant is, or is not, mentally unfit to stand trial; or

(c) a decision that the objective elements of an offence are established against the defendant.

(5) On an appeal, the appellate court may exercise one or more of the following powers:

(a) confirm, set aside, vary or reverse a decision of the court of trial;

(b) direct a retrial of the case or an issue arising in the case;

(c) make any finding or exercise any power that could have been made or exercised by the court of trial;

(d) make ancillary orders and directions.

269Z—Counselling of next of kin and victims

(1) If an application is made under Division 4 that might result in a defendant being released from detention, the Minister must ensure that counselling services in respect of the application are made available to—

(a) the defendant's next of kin; and

(b) the victim (if any) of the defendant's conduct; and

(c) if a victim was killed as a result of the defendant's conduct—the next of kin of the victim.

(2) A person does not, in disclosing information about the defendant during the course of providing counselling under this section, breach any code or rule of professional ethics.

269ZA—Exclusion of evidence

A finding made on an investigation into a defendant's fitness to stand trial does not establish an issue estoppel against the defendant in any later (civil or criminal) proceedings, and evidence of such a finding is not admissible against the defendant in criminal proceedings against the defendant.

269ZB—Arrest of person who escapes from detention etc

(1) If a person who is committed to detention under this Part—

(a) escapes from the detention; or

(b) is absent, without proper authority, from the place of detention,

the person may be arrested without warrant, and returned to the place of detention, by a member of the police force or an authorised person.

(2) A Judge or other proper officer of a court by which a person is released on licence under this Part may, if satisfied that there are proper grounds to suspect that the person may have contravened or failed to comply with a condition of the licence, issue a warrant to have the person arrested and brought before the court.





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