Review of certain people found unfit to plead
176 Review of certain people found unfit to plead
This section applies if—
the Supreme Court or the Magistrates Court makes a decision under the Crimes Act, section 315A (3) or section 315D (7) that a person is unfit to plead to a charge; and
the charge is for an offence punishable by imprisonment for 5 years or longer; and
an order is made in relation to the charge under any of the following provisions of the Crimes Act:
section 318 (2) (Non-acquittal at special hearing—non-serious offence);
section 319 (2) or (3) (Non-acquittal at special hearing—serious offence);
section 335 (2), (3) or (4) (Fitness to plead—Magistrates Court).
The ACAT may (on application or on its own initiative) review the person’s fitness to plead at any time.
However, the ACAT must review the person’s fitness to plead—
as soon as practicable (but within 3 months) after the end of 12 months after the day the order is made; and
at least once every 12 months after each review.
Subsection (3) does not apply if—
the person has already been found fit to plead; or
the director of public prosecutions has told the ACAT, in writing, of the director’s intention not to take further proceedings against the person in relation to the offence.
On a review, the ACAT must decide on the balance of probabilities whether the person is unfit to plead.
The ACAT must decide that the person is unfit to plead if satisfied that the person’s mental processes are disordered or impaired to the extent that the person cannot—
understand the nature of the charge; or
enter a plea to the charge and exercise the right to challenge jurors or the jury; or
understand that the proceeding is an inquiry about whether the person committed the offence; or
follow the course of the proceeding; or
understand the substantial effect of any evidence that may be given in support of the prosecution; or
give instructions to the person’s lawyer.
The person is not unfit to plead only because the person is suffering from memory loss.
To remove any doubt, this section applies even if the person is no longer in custody or under a mental health order or forensic mental health order.
A person who is the subject of a proceeding may be subpoenaed to appear at the proceeding (see ACT Civil and Administrative Tribunal Act 2008, s 41).
This Act’s bill:Explanatory statementSecond reading speech
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