In bail applications involving accused persons with mental illness in a show cause situation, the court may properly consider the likelihood of a custodial versus non-custodial supervision order if a mental impairment defence succeeds, particularly where the applicant's submissions invite that consideration. Proposed bail conditions that delegate compliance monitoring to mental health practitioners are unlikely to be regarded as adequate protective measures, as it is the function of police and the court, not treating clinicians, to supervise bail compliance. An advance statement under the Mental Health Act 2014 (Vic) authorising notification to police of non-compliance may not fall within the statutory definition of an advance statement and, in any event, can be revoked at any time.
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