limited off-ground leave has the meaning given in section 53; S. 3(1) def. of major review inserted by No. 7/2002 s. 3(1)(d). major review means a review under section 35; non-custodial supervision order means a supervision order referred to in section 26(2)(b); offence includes conduct that would, but for the perpetrator's mental impairment or unfitness to be tried, have constituted an offence; on-ground leave has the meaning given in section 51; s. 3 Panel means Forensic Leave Panel established by section 59; S. 3(1) def. of parent inserted by No. 7/2002 s. 3(1)(e). parent of a child includes a person who has day to day care and control of the child and with whom the child is ordinarily resident; S. 3(1) def. of police officer inserted by No. 37/2014 s. 10(Sch. item 39.1). police officer has the same meaning as in the Victoria Police Act 2013; President means President of the Panel; prison has the same meaning as in the Corrections Act 1986; S. 3(1) def. of registered medical practitioner substituted by Nos 97/2005 s. 182(Sch. 4 item 15(a)), 13/2010 s. 51(Sch. item 18). registered medical practitioner means a person registered under the Health Practitioner Regulation National Law to practise in the medical profession (other than as a student);
S. 3(1) def. of Secretary to the Department of Human Services inserted by No. 29/2010 s. 18(b). Secretary to the Department of Human Services means the Department Head (within the meaning of the Public Administration Act 2004) of the Department of Human Services; S. 3(1) def. of Secure Treatment Order inserted by No. 26/2014 s. 436(2). Secure Treatment Order means an Order within the meaning of section 175 of the Mental Health Act 2014; special hearing means a hearing under Part 3; special leave means leave of absence granted under section 50; S. 3(1) def. of spouse inserted by No. 72/2001 s. 3(Sch. item 5.1(a)). spouse of a person means a person to whom the person is married; s. 3 supervision order means an order made under section 26; surrounds has the meaning given in section 52; victim, in relation to an offence, means a person who suffered injury, loss or damage as a direct result of the offence. S. 3(2) inserted by No. 72/2001 s. 3(Sch. item 5.2), substituted by No. 12/2008 s. 73(1)(Sch. 1 item 15.2). (2) For the purposes of the definition of domestic partner in subsection (1)— (a) registered relationship has the same meaning as in the Relationships Act 2008; and
S. 8(1)(b) amended by No. 68/2009 s. 97(Sch. item 39.2(d)). (b) the accused must not be discharged only because the question has been raised; and S. 8(1)(c) amended by No. 68/2009 s. 97(Sch. item 39.2(d)). (c) if the accused is committed for trial, the question must be reserved for consideration by the trial judge. S. 8(2) amended by No. 68/2009 s. 97(Sch. item 39.3(a)). (2) Subject to subsection (3), if an accused is committed for trial and the question of his or her fitness to stand trial has been reserved under subsection (1)(c)— S. 8(2)(a) amended by No. 68/2009 s. 97(Sch. item 39.3(b)). (a) an indictment must be filed in respect of the offence; and S. 8(2)(b) amended by No. 68/2009 s. 97(Sch. item 39.3(c)). (b) the issue of whether there is a real and substantial question as to the fitness of the accused to stand trial must be determined by the trial judge; and (c) if the judge determines that there is a real and substantial question, an investigation must be held under this Part— within 3 months after the committal. S. 8(3) amended by No. 68/2009 s. 97(Sch. item 39.4). (3) The court before which the accused is to be tried may at any time, whether or not the period referred to in subsection (2) has expired, extend the period for a further period not exceeding 3 months. (4) The period referred to in subsection (2) may be extended under subsection (3) more than once. 9 Reservation of question of fitness to stand trial by court s. 9
S. 9(1) amended by No. 68/2009 s. 97(Sch. item (1) At any time after an indictment has been filed, if it appears to the court before which the accused is to be tried that there is a real and substantial question as to the fitness of the accused to stand trial, the court must reserve the question of the fitness of the accused to stand trial for investigation under this Part. S. 9(2) amended by No. 68/2009 s. 97(Sch. item 39.5(c)). (2) At any time during a trial, if it appears to the trial judge that there is a real and substantial question as to the fitness of the accused to stand trial, the judge must adjourn or discontinue the trial and proceed with an investigation under this Part. S. 9(3) amended by No. 68/2009 s. 97(Sch. item 39.5(d)). (3) Nothing in this Act prevents the question of the fitness of an accused to stand trial from being raised more than once in the same proceeding. S. 9(4) amended by Nos 7/2009 s. 425(a) (as amended by No. 68/2009 s. 54(k)), 68/2009 s. 97(Sch. item 39.5(e)). (4) For the purposes of sections 211 and 212 of the Criminal Procedure Act 2009, time ceases to run from the time that the question of the fitness of an accused to stand trial is reserved for investigation until the investigation has been completed. 10 Court may make orders pending investigation into fitness s. 10 S. 10(1) amended by No. 68/2009 s. 97(Sch. item 39.6(a)). (1) A court that reserves for investigation the question of the fitness of an accused to stand trial may make any one or more of the following orders— S. 10(1)(a) amended by No. 68/2009 s. 97(Sch. item 39.6(b)). (a) an order granting the accused bail; (c)).
S. 10(1)(b) amended by No. 68/2009 s. 97(Sch. item 39.6(b)). (b) subject to subsection (2), an order remanding the accused in custody in an appropriate place for a specified period; S. 10(1)(c) amended by No. 68/2009 s. 97(Sch. item 39.6(b)). (c) subject to subsection (3), an order remanding the accused in custody in a prison for a specified period; (d) if it is of the opinion that it is in the interests of justice to do so, an order— S. 10(1)(d)(i) amended by No. 68/2009 s. 97(Sch. item 39.6(b)). (i) that the accused undergo an examination by a registered medical practitioner or registered psychologist; and (ii) that the results of the examination be put before the court; (e) any other order the court thinks appropriate. S. 10(2) amended by No. 68/2009 s. 97(Sch. item 39.6(c)). (2) The court must not make an order remanding an accused in custody in an appropriate place unless it has received a certificate under section 47 stating that the facilities or services necessary for that order are available. S. 10(3) amended by No. 68/2009 s. 97(Sch. item 39.6(c)). (3) The court must not make an order remanding an accused in custody in a prison unless satisfied that there is no practicable alternative in the circumstances. 11 Procedure on investigation s. 11 S. 11(1) amended by No. 68/2009 s. 97(Sch. item 39.7(a)). (1) On an investigation into the fitness of an accused to stand trial— (a) the court must hear any relevant evidence and submissions put to the court by the prosecution or the defence; (b) if of the opinion that it is in the interests of justice to do so, the trial judge may—
(i) call evidence on his or her own initiative; S. 11(1)(b)(ii) amended by No. 68/2009 s. 97(Sch. item 39.7(b)). (ii) require the accused to undergo an examination by a registered medical practitioner or registered psychologist; (iii) require the results of any such examination to be put before the court. S. 11(1A) inserted by No. 69/2009 s. 54(Sch. Pt 1 item 13.1). (1A) Nothing in subsection (1) prevents the application of Part 3.10 of the Evidence Act 2008 to an investigation, and for the purposes of the application of Part 3.10 the investigation is taken to be a criminal proceeding. S. 11(2) substituted by No. 53/2000 s. 95(1). (2) The Juries Act 2000 applies to an investigation as if the investigation were a criminal trial. (3) At the commencement of the investigation, the judge must explain to the jury— (a) the reason for the investigation; and (b) the findings which may be made; and S. 11(3)(c) amended by No. 68/2009 s. 97(Sch. item 39.7(c)). (c) that the standard of proof required in relation to the fitness of the accused to stand trial is the balance of probabilities. S. 11(4) amended by No. 68/2009 s. 97(Sch. item 39.7(b)). (4) If the jury finds that the accused is unfit to stand trial, the judge must— s. 12 S. 11(4)(a) amended by No. 68/2009 s. 97(Sch. item 39.7(b)). (a) determine, by reference to any relevant evidence and on the balance of probabilities, whether or not the accused is likely to become fit to stand trial within the next 12 months; and
(b) the meaning of being unfit to stand trial; and (c) the purpose of the special hearing; and (d) the findings that are available; and (e) the standard of proof required for those findings. 17 Findings at special hearings s. 17 (1) The following findings are available to the jury at a special hearing— (a) not guilty of the offence charged; (b) not guilty of the offence because of mental impairment; S. 17(1)(c) amended by No. 68/2009 s. 97(Sch. item 39.13). (c) the accused committed the offence charged or an offence available as an alternative. S. 17(2) amended by No. 68/2009 s. 97(Sch. item 39.13). (2) To make a finding under subsection (1)(c) the jury must be satisfied beyond reasonable doubt, on the evidence available, that the accused committed the offence charged or an offence available as an alternative. 18 Effect of findings s. 18 S. 18(1) amended by No. 68/2009 s. 97(Sch. item 39.14). (1) If a jury makes a finding under section 17(1)(a), the person is to be taken for all purposes to have been found not guilty at a criminal trial. (2) A finding under section 17(1)(b) is to be taken for all purposes to be a finding at a criminal trial of not guilty because of mental impairment.
S. 19A(3) amended by No. 68/2009 s. 97(Sch. item 39.16(b)). (3) If the Court of Appeal declares a person liable to supervision, the Court of Appeal may— (a) remit the matter, with or without directions, to the court that made the order for unconditional release; or S. 19A(3)(b) amended by No. 68/2009 s. 97(Sch. item 39.16(b)). (b) make a supervision order in respect of the person. S. 19A(4) amended by No. 68/2009 s. 97(Sch. item 39.16(b)). (4) If the Court of Appeal remits a matter to a court under subsection (3)(a), that court must make a supervision order in respect of the person in accordance with this Act and any directions given by the Court of Appeal. S. 19A(5) amended by No. 68/2009 s. 97(Sch. item 39.16(b)). (5) The Court of Appeal may make any order that the judge could have made under section 19 pending the making of a supervision order in respect of the person. s. 19A _______________ 20 Defence of mental impairment s. 20 (1) The defence of mental impairment is established for a person charged with an offence if, at the time of engaging in conduct constituting the offence, the person was suffering from a mental impairment that had the effect that— (a) he or she did not know the nature and quality of the conduct; or (b) he or she did not know that the conduct was wrong (that is, he or she could not reason with a moderate degree of sense and composure about whether the conduct, as perceived by reasonable people, was wrong).
following orders pending the making of a supervision order— S. 24(1)(a) amended by No. 68/2009 s. 97(Sch. item 39.22). (a) an order granting the person bail; S. 24(1)(b) amended by No. 68/2009 s. 97(Sch. item 39.22). (b) subject to subsection (2), an order remanding the person in custody in an appropriate place; S. 24(1)(c) amended by No. 68/2009 s. 97(Sch. item 39.22). (c) subject to subsection (3), an order remanding the person in custody in a prison; (d) if it is of the opinion that it is in the interests of justice to do so, an order— S. 24(1)(d)(i) amended by No. 68/2009 s. 97(Sch. item 39.22). (i) that the person undergo an examination by a registered medical practitioner or registered psychologist; and (ii) that the results of the examination be put before the court; (e) any other order the court thinks appropriate. S. 24(2) amended by No. 68/2009 s. 97(Sch. item 39.22). (2) The court must not make an order remanding a person in custody in an appropriate place unless the court has received a certificate under section 47 stating that the facilities or services necessary for that order are available. S. 24(3) amended by No. 68/2009 s. 97(Sch. item 39.22). (3) The court must not make an order remanding a person in custody in a prison unless satisfied that there is no practicable alternative in the circumstances.
S. 28A(3)(d) amended by No. 68/2009 s. 97(Sch. item 39.26). s. 28A (d) set aside the supervision order and order the person who was subject to the supervision order to be released unconditionally. (4) If the Court of Appeal remits a matter to a court under subsection (3)(c), that court must make another supervision order in accordance with this Act and any directions given by the Court of Appeal. S. 28A(5) amended by No. 68/2009 s. 97(Sch. item 39.27(a)). (5) The Court of Appeal may make any one or more of the following orders pending the making of a supervision order in respect of a person under this section— S. 28A(5)(a) amended by No. 68/2009 s. 97(Sch. item 39.27(b)). (a) an order granting the person bail; S. 28A(5)(b) amended by No. 68/2009 s. 97(Sch. item 39.27(b)). (b) subject to subsection (6), an order remanding the person in custody in an appropriate place; S. 28A(5)(c) amended by No. 68/2009 s. 97(Sch. item 39.27(b)). (c) subject to subsection (7), an order remanding the person in custody in a prison; (d) if it is of the opinion that it is in the interests of justice to do so, an order— S. 28A(5)(d)(i) amended by No. 68/2009 s. 97(Sch. item 39.27(b)). (i) that the person undergo an examination by a registered medical practitioner or registered psychologist; and (ii) that the results of the examination be put before the court that is to make the supervision order; (e) any other order the court thinks appropriate.
S. 34(3C) inserted by No. 68/2009 s. 97(Sch. item 39.28), amended by No. 29/2010 s. 24(2). (3C) If the appeal is commenced by the Secretary to the Department of Human Services, the Secretary to the Department of Health, the Director of Public Prosecutions or the Attorney-General— (a) the notice of appeal must be signed by that person personally; and (b) a copy of the notice of appeal must be served personally on the respondent in accordance with section 391 of the Criminal Procedure Act 2009 within 7 days after the day on which the notice of appeal is filed; and (c) that person must provide a copy of the notice of appeal to the legal practitioner who last represented the respondent in the proceeding when the supervision order was made, if that legal practitioner can reasonably be identified. (4) On an appeal against a confirmation of a supervision order, the Court of Appeal may— (a) confirm the supervision order; or s. 34 S. 34(4)(b) amended by No. 68/2009 s. 97(Sch. item 39.29). (b) set aside the supervision order and make any order that the court could have made under section 29, 32, 33 or 35 (as the case requires); or S. 34(4)(c) amended by No. 68/2009 s. 97(Sch. item 39.29). (c) set aside the supervision order and remit the matter, with or without directions, to the court that made it. (5) On an appeal against a variation of a supervision order, the Court of Appeal may— (a) confirm the order for variation; or S. 34(5)(b) amended by No. 68/2009 s. 97(Sch. item 39.29). (b) set aside the order for variation and make any order that the court could have made under section 29, 32, 33 or 35 (as the case requires); or
treatment of the person (as the case requires); and s. 47 (b) if there are, give an outline of those facilities or services. S. 47(3) substituted by No. 29/2010 s. 29(2). (3) If there are no facilities or services available, the certificate may contain any other options that either the Secretary to the Department of Human Services or the Secretary to the Department of Health considers appropriate for the court to consider in making the proposed order. S. 47(4) amended by No. 29/2010 s. 29(3). (4) The Secretary to the Department of Human Services or the Secretary to the Department of Health must provide a certificate to the court within 7 days after receiving a request under subsection (1) or within such longer period as the court allows. S. 47(5) amended by No. 29/2010 s. 29(4). (5) The court may require the Secretary to the Department of Human Services or the Secretary to the Department of Health to give evidence or to provide the court with a further certificate to clarify or expand on the matters dealt with in a certificate under this section. s. 47 _______________ Division 1—Leave of absence S. 48 amended by No. 44/2004 s. 8 (ILA s. 39B(1)). 48 Application of Division S. 48(1) amended by No. 69/2005 s. 27(1)(a)(i)(ii). s. 48 (1) This Division applies in relation to forensic patients and forensic residents.
Department of Human Services or the Panel may specify. 51 What is on-ground leave? s. 51 On-ground leave allows a forensic patient or forensic resident to be absent from the place of custody but within the surrounds. 52 What are the surrounds? S. 52(1) amended by Nos 29/2010 s. 30(1), 26/2014 s. 442(1). (1) The surrounds, in relation to a designated mental health service, a residential treatment facility or a residential institution, is the area declared under subsection (2) to be the surrounds in relation to that service. S. 52(2) amended by Nos 29/2010 s. 30, 26/2014 s. 442(2). (2) The Governor-in-Council, by notice published in the Government Gazette, may declare an area surrounding or adjacent to a designated mental health service, a residential treatment facility or a residential institution to be the surrounds in relation to that designated mental health service, residential treatment facility or residential institution. 53 What is limited off-ground leave? Limited off-ground leave allows a forensic patient or forensic resident to be absent from the place of custody— S. 53(a) substituted by No. 7/2002 s. 24(a). (a) between the hours of 6.00 am and 9.00 pm; and S. 53(b) amended by No. 7/2002 s. 24(b). (b) outside those hours on a maximum of 3 days in any 7 day period. S. 54 substituted by No. 7/2002 s. 25. 54 Granting of on-ground or limited off-ground leave s. 54 (1) An application may be made to the Panel for onground leave or limited off-ground leave for a
person was first made subject to the interstate supervision order. (5) If the nominal term of the supervision order has expired, the first major review must be undertaken within 12 months after the review under section 73F. S. 73H inserted by No. 7/2002 s. 30. 73H Appeal against unconditional release s. 73H (1) The Attorney-General may appeal to the Court of Appeal against an order for unconditional release under section 73F(4)(b) if he or she considers that— (a) the order should not have been made; and (b) an appeal should be brought in the public interest. S. 73H(1A) inserted by No. 68/2009 s. 97(Sch. item 39.44). (1A) An appeal under subsection (1) is commenced by filing a notice of appeal in accordance with the rules of court within 28 days after the day on which the order is made or any extension of that period granted under section 76C. S. 73H(1B) inserted by No. 68/2009 s. 97(Sch. item 39.44). (1B) A notice of appeal under subsection (1A) must be signed by the Attorney-General personally. S. 73H(1C) inserted by No. 68/2009 s. 97(Sch. item 39.44). (1C) A copy of the notice of appeal must be served personally on the respondent in accordance with section 391 of the Criminal Procedure Act 2009 within 7 days after the day on which the notice of appeal is filed. S. 73H(1D) inserted by No. 68/2009 s. 97(Sch. item 39.44). (1D) The Attorney-General must provide a copy of the notice of appeal to the legal practitioner who last represented the respondent in the review under section 73F, if that legal practitioner can reasonably be identified.
Miscellaneous Acts (Omnibus No. 1) Act 1998, No. 43/1998 Assent Date: 26.5.98 Commencement Date: S. 40 on 18.4.98: s. 2(3) : This information relates only to the provision/s amending the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 Public Sector Reform (Miscellaneous Amendments) Act 1998, No. 46/1998 Assent Date: 26.5.98 Commencement Date: S. 7(Sch. 1) on 1.7.98: s. 2(2) : This information relates only to the provision/s amending the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 Psychologists Registration Act 2000, No. 41/2000 Assent Date: 6.6.00 Commencement Date: S. 102(Sch. item 2) on 1.6.01: s. 2(2) : This information relates only to the provision/s amending the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 Juries Act 2000, No. 53/2000 Assent Date: 12.9.00 Commencement Date: S. 95 on 1.8.01: s. 2(3) : This information relates only to the provision/s amending the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 Statute Law Further Amendment (Relationships) Act 2001, No. 72/2001 Assent Date: 7.11.01 Commencement Date: S. 3(Sch. item 5) on 20.12.01: Government Gazette 20.12.01 p. 3127 : This information relates only to the provision/s amending the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 Forensic Health Legislation (Amendment) Act 2002, No. 7/2002 Assent Date: 9.4.02 Commencement Date: S. 50 on 10.4.02: s. 2(1); ss 3–33 on 1.7.02: s. 2(3) : This information relates only to the provision/s amending the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 Mental Health Legislation (Commonwealth Detainees) Act 2004, No. 44/2004 Endnotes
Disability Act 2006, No. 23/2006 Assent Date: 16.5.06 Commencement Date: S. 237 on 1.7.07: s. 2(3) : This information relates only to the provision/s amending the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 Endnotes Public Sector Acts (Further Workplace Protection and Other Matters) Act 2006, No. 80/2006 Assent Date: 10.10.06 Commencement Date: S. 26(Sch. item 22) on 11.10.06: s. 2(1) : This information relates only to the provision/s amending the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 Relationships Act 2008, No. 12/2008 Assent Date: 15.4.08 Commencement Date: S. 73(1)(Sch. 1 item 15) on 1.12.08: s. 2(2) : This information relates only to the provision/s amending the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 Criminal Procedure Act 2009, No. 7/2009 (as amended by No. 68/2009) Assent Date: 10.3.09 Commencement Date: Ss 423–425 on 1.1.10: Government Gazette 10.12.09 p. 3215 : This information relates only to the provision/s amending the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009, No. 68/2009 Assent Date: 24.11.09 Commencement Date: S. 97(Sch. item 39) on 1.1.10: Government Gazette 10.12.09 p. 3215 : This information relates only to the provision/s amending the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 Statute Law Amendment (Evidence Consequential Provisions) Act 2009, No. 69/2009 Assent Date: 24.11.09 Commencement Date: S. 54(Sch. Pt 1 item 13), (Sch. Pt 2 item 17) on 1.1.10: s. 2(2) : This information relates only to the provision/s amending the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997
Victoria Police Amendment (Consequential and Other Matters) Act 2014, No. 37/2014 Assent Date: 3.6.14 Commencement Date: S. 10(Sch. item 39) on 1.7.14: Special Gazette (No. 200) 24.6.14 p. 2 Current State: This information relates only to the provision/s amending the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 ––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––– Endnotes Explanatory Details Endnotes