1: Title
This Act is the Criminal Procedure (Mentally Impaired Persons) Act 2003.
1: Preliminary provisions
2: Commencement
1: This Act comes into force on a date to be appointed by the Governor-General by Order in Council.
2: Despite subsection (1), if the date appointed under that subsection is prior to the commencement of section 4A section 50
3: An order under this section is secondary legislation ( see Part 3 The following table is small in size and has 3 columns that are grouped under the heading Legislation Act 2019 requirements for secondary legislation made under this section. Legislation Act 2019 requirements for secondary legislation made under this section Publication PCO must publish it on the legislation website and notify it in the Gazette LA19 s 69(1)(c) Presentation The Minister must present it to the House of Representatives LA19 s 114 cl 32(1)(a) Disallowance It may be disallowed by the House of Representatives LA19 ss 115 116 This note is not part of the Act. Section 2(1) brought into force 1 September 2004 clause 2 Criminal Procedure (Mentally Impaired Persons) Act Commencement Order 2004 Section 2(3) inserted 28 October 2021 section 3 Secondary Legislation Act 2021
3: Purpose
The purpose of this Act is to restate the law formerly set out in Part 7
a: provide the courts with appropriate options for the detention, assessment, and care of defendants and offenders with an intellectual disability:
b: provide that a defendant found unfit to stand trial for an offence must be the subject of an inquiry to determine whether the evidence against the defendant is sufficient to establish that the defendant caused the act or omission that forms the basis of the offence:
c: provide for a number of related matters. Section 3(b) replaced 14 November 2018 section 121 Courts Matters Act 2018
4: Interpretation
1: In this Act, unless the context otherwise requires,— act proven but not criminally responsible on account of insanity
a: the defendant is found to have caused the act or omission that forms the basis of the offence with which the defendant is charged; and
b: the defendant was insane at the time that the defendant caused that act or omission care recipient Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003 compulsory care order Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003 compulsory treatment order Part 2 co-ordinator Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003 counsel court facility secure facility Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003 guardian section 12 health assessor
a: a practising psychiatrist who is registered as a medical practitioner; or
b: a psychologist; or
c: a specialist assessor under the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003 hospital Mental Health (Compulsory Assessment and Treatment) Act 1992 imprisonable offence intellectual disability Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003 medical practitioner section 114(1)(a) psychologist section 114(1)(a) special care recipient Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003 unfit to stand trial
a: means a defendant who is unable, due to mental impairment, to conduct a defence or to instruct counsel to do so; and
b: includes a defendant who, due to mental impairment, is unable—
i: to plead:
ii: to adequately understand the nature or purpose or possible consequences of the proceedings:
iii: to communicate adequately with counsel for the purposes of conducting a defence victim section 2(1)
2: If this Act comes into force before the commencement of section 114(1) medical practitioner psychologist medical practitioner Medical Practitioners Act 1995 psychologist Psychologists Act 1981 1985 No 120 ss 2(1), (2) 108 Section 4(1) acquittal on account of insanity repealed 1 July 2013 section 4 Criminal Procedure (Mentally Impaired Persons) Amendment Act 2011 Section 4(1) act proven but not criminally responsible on account of insanity inserted 13 December 2022 section 4 Rights for Victims of Insane Offenders Act 2021 Section 4(1) victim inserted 13 December 2022 section 4 Rights for Victims of Insane Offenders Act 2021
5: Application
1: This Act applies only to criminal proceedings in which a defendant is charged with an imprisonable offence.
2: This Act does not apply to proceedings under the Armed Forces Discipline Act 1971 1985 No 120 s 3(2)
5A: Transitional, savings, and related provisions
The transitional, savings, and related provisions set out in Schedule 1AA Section 5A inserted 14 November 2018 section 122 Courts Matters Act 2018
6: Act binds the Crown
This Act binds the Crown.
2: Substantive provisions
1: Findings of unfitness to stand trial and involvement in offence
Heading replaced 14 November 2018 section 123 Courts Matters Act 2018
7: When finding of unfitness to stand trial may be made
1: A court may make a finding under this subpart that a defendant is unfit to stand trial at any stage after the commencement of the proceedings and until all the evidence is concluded.
2: 1985 No 120 s 109 Section 7(2) repealed 14 November 2018 section 124 Courts Matters Act 2018
8: Postponement of finding
1: A court may, if it thinks it is in the interests of the defendant to do so, postpone the determination of the question whether a defendant is unfit to stand trial.
2: However, at a
3: When a court postpones the determination of the question whether a defendant is unfit to stand trial, the court may not determine the question if—
a: the defendant is acquitted; or
b: the charge is dismissed. 1985 No 120 s 110 Section 8(2) amended 1 July 2013 section 4 Criminal Procedure (Mentally Impaired Persons) Amendment Act 2011 Section 8(3)(b) replaced 1 July 2013 section 4 Criminal Procedure (Mentally Impaired Persons) Amendment Act 2011
8A: Determining if defendant unfit to stand trial
1: The court must receive the evidence of 2 health assessors as to whether the defendant is mentally impaired.
2: If the court is satisfied on the evidence given under subsection (1) that the defendant is mentally impaired, the court must record a finding to that effect and—
a: give each party an opportunity to be heard and to present evidence as to whether the defendant is unfit to stand trial; and
b: find whether or not the defendant is unfit to stand trial; and
c: record the finding made under paragraph (b).
3: The standard of proof required for a finding under subsection (2) is the balance of probabilities.
4: If the court records a finding under subsection (2) that the defendant is fit to stand trial, the court must continue the proceedings.
5: If the court records a finding under subsection (2) that the defendant is unfit to stand trial, the court must inquire into the defendant’s involvement in the offence under section 10 11 12 Section 8A inserted 14 November 2018 section 125 Courts Matters Act 2018
9: Court must be satisfied of defendant's involvement in offence
Section 9 repealed 14 November 2018 section 126 Courts Matters Act 2018
10: Inquiry before trial into defendant's involvement in the offence
1: This section applies if, before trial, the defendant is found unfit to stand trial.
2: The court must decide whether the court is satisfied, on the balance of probabilities, that the evidence against the defendant is sufficient to establish that the defendant caused the act or omission that forms the basis of the offence with which the defendant is charged.
3: For the purposes of subsection (2), the court may consider—
a: any formal statements that have been filed under section 85
b: any oral evidence that has been taken in accordance with an order made under section 92
c: any other evidence that is submitted by the prosecutor or defendant. Section 10 replaced 1 July 2013 section 4 Criminal Procedure (Mentally Impaired Persons) Amendment Act 2011 Section 10(1) replaced 14 November 2018 section 127 Courts Matters Act 2018 Section 10(2) replaced 14 November 2018 section 127 Courts Matters Act 2018
11: Inquiry during Judge-alone trial into defendant's involvement
in offence
1: This section applies if, during a Judge-alone trial, the defendant is found unfit to stand trial.
2: The court must decide whether the court is satisfied, on the balance of probabilities, that the evidence against the defendant is sufficient to establish that the defendant caused the act or omission that forms the basis of the offence with which the defendant is charged.
3: For the purposes of subsection (2), the court may (whether on the application of a party or on the court's own initiative) do either or both of the following:
a: consider any evidence presented at the trial:
b: hear any new evidence. Section 11 replaced 1 July 2013 section 4 Criminal Procedure (Mentally Impaired Persons) Amendment Act 2011 Section 11 heading amended 14 November 2018 section 128(1) Courts Matters Act 2018 Section 11(1) replaced 14 November 2018 section 128(2) Courts Matters Act 2018 Section 11(2) replaced 14 November 2018 section 128(2) Courts Matters Act 2018
12: Inquiry during jury trial into defendant's involvement
in offence
1: This section applies if, during a jury trial, the defendant is found unfit to stand trial.
2: The court must decide whether the court is satisfied, on the balance of probabilities, that the evidence against the defendant is sufficient to establish that the defendant caused the act or omission that forms the basis of the offence with which the defendant is charged.
3: For the purposes of subsection (2), the court may do 1 or more of the following:
a: consider any formal statements that have been filed under section 85
b: consider any oral evidence that has been taken in accordance with an order made under section 92
c: consider any evidence presented at the trial:
d: hear any new evidence at any stage before the commencement of the closing addresses. Section 12 replaced 1 July 2013 section 4 Criminal Procedure (Mentally Impaired Persons) Amendment Act 2011 Section 12 heading amended 14 November 2018 section 129(1) Courts Matters Act 2018 Section 12(1) replaced 14 November 2018 section 129(2) Courts Matters Act 2018 Section 12(2) replaced 14 November 2018 section 129(2) Courts Matters Act 2018
13: Outcome of consideration of defendant's involvement
in offence
1: When the court has ascertained, in accordance with any of sections 10 to 12 section 10(2) 11(2) 12(2)
2: If the court is not satisfied of the matter specified in section 10(2) 11(2) 12(2)
a: the court must dismiss the charge against the defendant under section 147
b: the finding that the defendant is unfit to stand trial is deemed, for all legal purposes, to have been quashed; and
c: the court must not deal with the defendant under subpart 3
3:
4: If the court is satisfied of the matter specified in section 10(2) 11(2) 12(2) subpart 3 Section 13 heading amended 14 November 2018 section 130(1) Courts Matters Act 2018 Section 13(1) amended 14 November 2018 section 130(2) Courts Matters Act 2018 Section 13(2) replaced 14 November 2018 section 130(3) Courts Matters Act 2018 Section 13(3) repealed 1 July 2013 section 4 Criminal Procedure (Mentally Impaired Persons) Amendment Act 2011 Section 13(4) replaced 14 November 2018 section 130(4) Courts Matters Act 2018
14: Determining if defendant unfit to stand trial
Section 14 repealed 14 November 2018 section 131 Courts Matters Act 2018
15: Jurisdiction may be exercised in absence of defendant
The jurisdiction under any of sections 8A 10 to 13 1985 No 120 s 111(3) Section 15 amended 14 November 2018 section 132 Courts Matters Act 2018
16: Appeal by defendant against finding relating to fitness to stand trial
or sufficiency of evidence
1: A defendant may appeal against the finding under section 8A(2)(b)
1A: A defendant may appeal against a finding under section 10(2) 11(2) 12(2)
2: For the purposes of an appeal under this section,—
a: the finding appealed against is to be regarded as a conviction; and
b: the provisions of Part 6 1985 No 120 s 112(1) Section 16 heading amended 14 November 2018 section 133(1) Courts Matters Act 2018 Section 16(1) replaced 14 November 2018 section 133(2) Courts Matters Act 2018 Section 16(1A) inserted 14 November 2018 section 133(2) Courts Matters Act 2018 Section 16(2)(b) amended 1 July 2013 section 4 Criminal Procedure (Mentally Impaired Persons) Amendment Act 2011
17: Matters for appellate court on appeal under section 16
1: If, on an appeal under section 16(1A) dismiss the charge against the appellant
2:
3: In the case of an appeal under section 16(1) charge against the appellant has been dismissed
4: If the court is satisfied that the appellant is mentally impaired, the court must—
a: give the appellant and the respondent an opportunity to be heard and to present evidence as to whether the appellant is unfit to stand trial; and
b: confirm or quash the finding relating to the appellant's fitness to stand trial.
5: If the result of the appeal is that the appellant is fit to stand trial, the court must remit the case to the High Court or the District Court, as the case may require. 1985 No 120 s 112(2)–(4) Section 17(1) amended 14 November 2018 section 134(1) Courts Matters Act 2018 Section 17(1) amended 1 July 2013 section 4 Criminal Procedure (Mentally Impaired Persons) Amendment Act 2011 Section 17(2) repealed 1 July 2013 section 4 Criminal Procedure (Mentally Impaired Persons) Amendment Act 2011 Section 17(3) amended 14 November 2018 section 134(2) Courts Matters Act 2018 Section 17(3) amended 1 July 2013 section 4 Criminal Procedure (Mentally Impaired Persons) Amendment Act 2011
18: Release on bail or detention of appellant pending appeal
1: An appellant under section 16 sections 23 24 25
2: If the appellant is not released on bail, the appellant must be detained in accordance with the order of detention while his or her appeal is pending.
3: A Judge of the High Court, or the District Court Judge who presided over the court whose decision is appealed against, may make any other order that may be thought fit for the custody of the appellant if the appellant is not released on bail while his or her appeal is pending. 1985 No 120 s 112(5)–(7)
19: Appeals by prosecution
1: The prosecution may appeal on a question of law against 1 or more of the following findings under this subpart:
a: that the evidence against the defendant is not sufficient to establish that the defendant caused the act or omission that forms the basis of the offence with which the defendant is charged:
b: that the defendant is mentally impaired:
c: that the defendant is unfit to stand trial.
2: The provisions of Part 6 Section 19(2) amended 1 July 2013 section 4 Criminal Procedure (Mentally Impaired Persons) Amendment Act 2011
2: Acquittals on account of insanity
20: Finding of act proven but not criminally responsible on account of insanity
1: If, at a trial, the defendant gives evidence as to the defendant’s insanity and the jury or (if there is no jury) the Judge makes a finding of act proven but not criminally responsible on account of insanity, the Judge must—
a: record a finding of act proven but not criminally responsible on account of insanity; and
b: explain the meaning of that finding to the defendant; and
c: acquit the defendant on account of the defendant’s insanity.
2: Before or at a trial, the Judge must do the things specified in subsection (1)
a: the defendant indicates an intention to raise the defence of insanity; and
b: the prosecution agrees that the only reasonable verdict is a finding of act proven but not criminally responsible on account of insanity; and
c: the Judge is satisfied, on the basis of expert evidence, that the defendant was insane within the meaning of section 23
3: If, at a trial before a jury, the defendant gives evidence as to the defendant’s insanity and the jury finds the defendant not guilty, the Judge must ask the jury whether it has acquitted the defendant on account of the defendant’s insanity.
4: The Judge must do the things specified in subsection (1)
a: the Judge asks the jury under subsection (3)
b: the jury responds that it has acquitted the defendant on that basis.
5: If it appears from the evidence that the defendant may have been insane at the time of the act or omission that forms the basis of the offence with which the defendant is charged, the Judge may ask the jury to find whether the defendant was insane within the meaning of section 23 1985 No 120 s 113 Section 20 replaced 13 December 2022 section 5 Rights for Victims of Insane Offenders Act 2021
21: Appeal against acquittal on account of insanity
1: A defendant who is acquitted on account of his or her insanity may appeal against the verdict or decision, and, for the purposes of such an appeal,—
a: the verdict or decision is to be regarded as a conviction; and
b: the provisions of Part 6
2: On such an appeal, the court may—
a: allow the appeal, and direct that a verdict of acquittal or a decision to dismiss the charge
b: dismiss the appeal:
c: exercise a power, whether to direct a new trial
3: If the court thinks that (except for the appellant's insanity) the proper verdict or decision would have been that the appellant was guilty of an offence other than the offence charged, the court—
a: may not allow the appeal merely because the appellant ought to have been acquitted of the offence charged; and
b: may direct that the other offence be substituted for the offence charged.
4: If, on such an appeal, the appellate court is satisfied that the finding of insanity ought not to stand, and is satisfied that, in the absence of such a finding, the proper verdict or decision would have been that the appellant was guilty of an offence (whether of the offence charged or any other offence of which the appellant could have been found guilty at the trial
a: must substitute for the verdict or decision given a verdict of guilty of the offence or a conviction for the offence; and
b: may exercise a power in relation to the appellant (such as sentencing the appellant) that is available to the court where the verdict or decision appealed against was given.
5: Unless the appellate court otherwise directs, the term of any sentence of imprisonment passed by it under subsection (4) begins to run as if passed on the date on which the verdict or decision appealed against was given. 1985 No 120 s 114(1)–(5) Section 21(1)(b) amended 1 July 2013 section 4 Criminal Procedure (Mentally Impaired Persons) Amendment Act 2011 Section 21(2)(a) amended 1 July 2013 section 4 Criminal Procedure (Mentally Impaired Persons) Amendment Act 2011 Section 21(2)(c) amended 1 July 2013 section 4 Criminal Procedure (Mentally Impaired Persons) Amendment Act 2011 Section 21(4) amended 1 July 2013 section 4 Criminal Procedure (Mentally Impaired Persons) Amendment Act 2011
22: Release on bail or detention of appellant pending appeal
1: An appellant under section 21 sections 23 24 25
2: If the appellant is not released on bail, the appellant must be detained in accordance with the order of detention while his or her appeal is pending.
3: The court hearing the appeal, or the Judge who presided at the trial 1985 No 120 s 114(6)–(8) Section 22(3) amended 1 July 2013 section 4 Criminal Procedure (Mentally Impaired Persons) Amendment Act 2011
3: Detention, treatment, and care of persons found unfit to stand trial or acquitted on account of insanity
Court orders
23: Inquiries about persons found unfit to stand trial or insane
1: When a person is found unfit to stand trial or is acquitted on account of his or her insanity, the court must order that inquiries be made to determine the most suitable method of dealing with the person under section 24 section 25
2: For the purposes of the inquiries under subsection (1), the court must either—
a: make it a condition of a grant of bail that the person go to a place approved by the court for the purpose of the inquiries; or
b: remand the person to a hospital or a secure facility.
3: Despite any provision in the Bail Act 2000
4: The inquiries under subsection (1) must be completed as quickly as practicable and, in any event, within 30 days after the date of the order under which the inquiries are made.
5: A person who has an intellectual disability must, during the period in which the inquiries are made under subsection (1), be assessed under Part 3 1985 No 120 s 115(4)
24: Detention of defendant found unfit to stand trial or insane as special patient or special care recipient
1: When the court has sufficient information on the condition of a defendant found unfit to stand trial or acquitted on account of his or her insanity, the court must—
a: consider all the circumstances of the case; and
b: consider the evidence of 1 or more health assessors as to whether the detention of the defendant in accordance with one of the orders specified in subsection (2) is necessary; and
c: make one of the orders referred to in paragraph (b) if it is satisfied that the making of the order is necessary in the interests of the public or any person or class of person who may be affected by the court's decision.
2: The orders referred to in subsection (1) are that the defendant be detained—
a: in a hospital as a special patient under the Mental Health (Compulsory Assessment and Treatment) Act 1992
b: in a secure facility as a special care recipient under the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003
3: Before the court makes an order specified in subsection (2)(a), the court must have received evidence, under subsection (1)(b), about the defendant from at least 1 health assessor who is a psychiatrist. 1985 No 120 s 115(1)
25: Alternative decisions in respect of defendant unfit to stand trial or insane
1: If, after considering the matters specified in section 24(1)(a) and (b)
a: by ordering that the defendant be treated as a patient under the Mental Health (Compulsory Assessment and Treatment) Act 1992
b: by ordering that the defendant be cared for as a care recipient under the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003
c: if the person is liable to be detained under a sentence of imprisonment, by deciding not to make an order; or
d: by ordering the immediate release of the defendant.
2: Before the court makes an order under subsection (1)(a), the court must be satisfied on the evidence of 1 or more health assessors (at least 1 of whom must be a psychiatrist) that the defendant is mentally disordered.
3: Before the court makes an order under subsection (1)(b), the court must be satisfied on the evidence of 1 or more health assessors that the defendant—
a: has an intellectual disability; and
b: has been assessed under Part 3
c: is to receive care under a care programme completed under section 26
4: In the exercise of its powers under subsection (1), the court may take into account any undertaking given by, or on behalf of, the defendant that the defendant will undergo or continue to undergo a particular programme or course of treatment. 1985 No 120 s 115(2), (3)
26: Effect of alternative orders
1: An order made under section 25(1)(a) Mental Health (Compulsory Assessment and Treatment) Act 1992
2: An order made under section 25(1)(b) Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003
a: direct whether the defendant is to be detained in a secure facility; and
b: specify the term of the order in accordance with section 46 1985 No 120 s 115(4A)
27: Court may stay proceedings when alternative decision made in respect of defendant unfit to stand trial
1: When the court makes an order under section 25
2: While a stay of proceedings ordered under subsection (1) is in force, the defendant in the proceedings may not be charged again with an offence with which he or she was charged in those proceedings. 1985 No 120 s 115(5)
28: Effect of orders under section 24 on prison sentences
1: When a sentence of imprisonment is imposed on an offender who is, or subsequently becomes, subject to an order of detention under section 24
2: Subsection (1) does not apply while the offender is absent without authority from the hospital or facility in which he or she is required to be detained.
3: If the offender is still liable to be detained under a sentence of imprisonment when the offender is discharged from the hospital or facility in which the offender is detained in accordance with an order under section 24 prison 1985 No 120 s 115(6) Section 28(3) amended 1 June 2005 section 206 Corrections Act 2004
29: Appeals against orders under section 24 or section 25 or section 27
1: If the court makes an order or a decision under section 24 section 25 section 27
2: The provisions of Part 6
3: On such an appeal, the court may—
a: dismiss the appeal:
b: vary the order appealed against:
c: cancel the order or decision appealed against and substitute another order or decision under section 24 section 25 section 27 Section 29(2) amended 1 July 2013 section 4 Criminal Procedure (Mentally Impaired Persons) Amendment Act 2011 Change of status, and discharge, of persons detained as special patients or special care recipients
30: Duration of detention as special patient or special care recipient where person unfit to stand trial
1: The maximum period for which a defendant who has been found unfit to stand trial can be detained under section 24
a: 10 years from the date of the making of the order under section 24
b: if paragraph (a) does not apply, a period from the date of the order under section 24
2: If the defendant was charged with more than 1 offence, the relevant offence for the purposes of subsection (1)(b) is the offence punishable by the longest term of imprisonment.
3: An order under section 24
a: the defendant is brought before a court in accordance with a direction given under section 31
b: a direction is given, under section 31
4: Subsection (3) sections 84 128 section 105
5: An order under section 24 1985 No 120 s 116(1)–(3)
31: Change of status from special patient to patient or special care recipient to care recipient where person unfit to stand trial
1: This section applies to a defendant who has been found unfit to stand trial and who is detained as a special patient or as a special care recipient in accordance with an order under section 24 defendant
2: If, before or on the expiry of the relevant maximum period specified in section 30 Mental Health (Compulsory Assessment and Treatment) Act 1992 Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003
a: direct that the defendant be brought before the appropriate court; or
b: direct that the defendant be held as a patient or, as the case requires, as a care recipient.
3: If, at any time before the expiry of the relevant maximum period specified in section 30 Mental Health (Compulsory Assessment and Treatment) Act 1992 Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003 section 24
a: consider whether, in the Minister’s opinion, the continued detention of the defendant under that section is no longer necessary to safeguard those interests; and
b: direct that the defendant be held as a patient or, as the case requires, as a care recipient if, in the Minister’s opinion, that detention is no longer necessary to safeguard those interests.
3A: The interests referred to in subsection (3) are—
a: the defendant’s own interests; and
b: the safety of the public or the safety of a person or class of person.
3B: In reaching a decision under subsection (3)(a), the Minister must have regard to any report from the Director of Mental Health made under section 33A
4: The Attorney-General must direct that the defendant be held as a patient or, as the case requires, as a care recipient if—
a: the defendant is still detained as a special patient or as a special care recipient when the maximum period specified in section 30
b: no direction under subsection (2) or subsection (3) has been given in respect of the defendant; and
c: no certificate of the kind referred to in subsection (2) has been given in respect of the defendant.
5: A direction under this section—
a: that the defendant be held as a patient is to be regarded as a compulsory treatment order for the purposes of the Mental Health (Compulsory Assessment and Treatment) Act 1992
b: that the defendant be held as a care recipient is to be regarded as a compulsory care order for the purposes of the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003
6: The powers and duties conferred and imposed on the Attorney-General by this section are not capable of being exercised or performed by the Solicitor-General. 1985 No 120 s 116(4)–(6A), (8) Section 31(3) replaced 13 December 2022 section 6 Rights for Victims of Insane Offenders Act 2021 Section 31(3A) inserted 13 December 2022 section 6 Rights for Victims of Insane Offenders Act 2021 Section 31(3B) inserted 13 December 2022 section 6 Rights for Victims of Insane Offenders Act 2021
32: Proceedings stayed following certain directions under section 31
When a direction is given under section 31
a: the proceedings in which the defendant was ordered to be detained are stayed; and
b: the defendant may not be charged again with an offence with which he or she was charged in those proceedings. 1985 No 120 s 116(7)
33: Duration of order for detention as special patient or special care recipient if person acquitted on account of insanity
1: This section applies to a defendant who has been acquitted on account of his or her insanity and who is detained as a special patient or a special care recipient in accordance with an order under section 24 defendant
2: The order under which the defendant is detained continues in force until—
a: a direction is given under this section that the defendant is to be held as a patient or as a care recipient; or
b: the defendant is discharged in accordance with a direction given under this section.
3: If, at any time while the order continues in force, a certificate is given under the Mental Health (Compulsory Assessment and Treatment) Act 1992 Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003
a: consider whether, in the Minister's opinion, the defendant's continued detention is no longer necessary to safeguard those interests; and
b: if, in the Minister's opinion, that detention is no longer necessary to safeguard those interests, direct—
i: that the defendant be held as a patient or, as the case requires, as a care recipient; or
ii: that the defendant be discharged.
4: The interests referred to in subsection (3) are—
a: the defendant's own interests; and
b: the safety of the public or the safety of a person or class of person.
4A: In reaching a decision under subsection (3)(a), the Minister must have regard to any report from the Director of Mental Health made under section 33A
5: A direction under this section—
a: that the defendant be held as a patient is to be regarded as a compulsory treatment order for the purposes of the Mental Health (Compulsory Assessment and Treatment) Act 1992
b: that the defendant be held as a care recipient is to be regarded as a compulsory care order for the purposes of the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003 1985 No 120 s 117 Section 33(4A) inserted 13 December 2022 section 7 Rights for Victims of Insane Offenders Act 2021
33A: Report by Director of Mental Health on defendant’s continued detention
The Director of Mental Health may report to the Minister of Health about the continued detention under section 24 section 31(1) 33(1) Section 33A inserted 13 December 2022 section 8 Rights for Victims of Insane Offenders Act 2021
33B: When victims must be notified of impending decision under section 31 or 33
1: This section applies if the Director of Mental Health intends to report to the Minister of Health under section 33A
2: The Director must take all reasonable steps to—
a: give notice to a victim that the Director intends to report to the Minister of Health under section 33A
b: explain to the victim—
i: the process under section 31(3) 33(3)
ii: how the victim may participate in that process. Section 33B inserted 13 December 2022 section 8 Rights for Victims of Insane Offenders Act 2021
33C: Right of victims to make submissions on proposed change of status
1: This section applies to a person notified under section 33B
2: The person may write to the Director of Mental Health, making submissions on the decision of whether to change the defendant’s status under section 31(3) 33(3)
3: The person’s submissions may address—
a: any concerns that the person has, on reasonable grounds, about any risk that the defendant presents to—
i: the person’s physical safety or security; or
ii: the physical safety or security of 1 or more members of the person’s immediate family; and
b: any other information that the person considers relevant to the decision of whether to change the defendant’s status under section 31(3) 33(3)
4: The person must send the submission to the Director by the date specified by the Director.
5: The Director must have regard to any written submissions made by a victim under this section or section 33D
6: In this section, immediate family section 4 Section 33C inserted 13 December 2022 section 8 Rights for Victims of Insane Offenders Act 2021
33D: Submissions from certain victims
1: This section applies to a person who—
a: is not a victim as defined in section 4
b: is a victim as defined in section 4
2: The person may make written submissions to the Director of Mental Health about the decision of whether to change the defendant’s status under section 31(3) 33(3)
3: If the person seeks information from the Director for the purpose of making submissions under subsection (2)
a: advise the person of the date on which the Director intends to report to the Minister of Health about the continued detention of the defendant; and
b: give the person any other information that is reasonably necessary to enable the person to make submissions.
4: Section 33C
5: Neither the Director nor any other person has any liability for any act done in pursuance, or intended pursuance, of the Director’s functions under this section or section 33E(1)(b) Section 33D inserted 13 December 2022 section 8 Rights for Victims of Insane Offenders Act 2021
33E: Victims must be notified of decisions made under sections 31 and 33
1: The Director of Mental Health must advise the following persons of the matters specified in subsection (2):
a: a person notified under section 33B
b: a person who makes a submission under section 33D(2)
2: The specified matters are—
a: whether the Director’s report to the Minister of Health concludes that the defendant’s continued detention under section 24
i: continues to be necessary; or
ii: is no longer necessary; and
b: what decision the Minister has reached under section 31(3) 33(3) Section 33E inserted 13 December 2022 section 8 Rights for Victims of Insane Offenders Act 2021
33F: Information about victims not to be disclosed
1: This section applies to sections 33A to 33E
2: No person may, directly or indirectly, disclose to the defendant the current address or contact details of any victim of the defendant. Section 33F inserted 13 December 2022 section 8 Rights for Victims of Insane Offenders Act 2021
4: Detention, treatment, and care of defendants who are convicted
34: Power of court to commit offender to hospital or facility on conviction
1: If the court is satisfied of the matters specified in subsection (2), the court may deal with an offender who is convicted of an imprisonable offence—
a: by sentencing the offender to a term of imprisonment and also ordering that the offender—
i: be detained in a hospital as a special patient under the Mental Health (Compulsory Assessment and Treatment) Act 1992
ii: be detained in a secure facility as a special care recipient under the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003
b: instead of passing sentence, by ordering that the offender—
i: be treated as a patient under the Mental Health (Compulsory Assessment and Treatment) Act 1992
ii: be cared for as a care recipient under the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003
2: For the purposes of subsection (1), the court must be satisfied, on the evidence of 1 or more health assessors, that the offender's mental impairment requires the compulsory treatment or compulsory care of the offender either in the offender's interest, or for the safety of the public or for the safety of a person or class of person.
3: Before the court makes an order under subsection (1)(a)(i) or (b)(i), the court must be satisfied on the evidence of 1 or more health assessors (at least 1 of whom must be a psychiatrist) that the defendant is mentally disordered.
4: Before the court makes an order under subsection (1)(a)(ii) or (b)(ii), the court must be satisfied on the evidence of 1 or more health assessors that the defendant—
a: has an intellectual disability; and
b: has been assessed under Part 3
c: is to receive care under a care programme completed under section 26
5: No order may be made under this section in respect of an offender who is, at the time of the conviction, subject to a sentence of imprisonment. 1985 No 120 s 118(1), (2)
35: Inquiries about persons for whom orders under section 34 proposed
1: When a court proposes to make an order under section 34
2: For the purposes of the inquiries under subsection (1), the court must either—
a: make it a condition of a grant of bail that the person go to a place approved by the court for the purpose of the inquiries; or
b: remand the person to a hospital or a secure facility.
3: The inquiries under subsection (1) must be completed as quickly as practicable and, in any event, within 30 days after the date of the order under which the inquiries are made.
4: A person who has an intellectual disability must, during the period in which the inquiries are made under subsection (1), be assessed under Part 3
36: Offenders detained as patients
An order under section 34(1)(b)(i) Mental Health (Compulsory Assessment and Treatment) Act 1992 1985 No 120 s 118(3)
37: Offenders detained as care recipients
An order under section 34(1)(b)(ii) Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003
a: direct whether the offender is to be detained in a secure facility within the meaning of that Act; and
b: specify the term of the order in accordance with section 46
5: Assessment of defendants
38: Power of court to require assessment report
1: When a person is in custody at any stage of a proceeding against the person, whether before or during the hearing or trial, or while awaiting sentence or the determination of an appeal, a court may, on the application of the prosecution or the defence or on its own initiative, order that a health assessor prepare an assessment report on the person for the purpose of assisting the court to determine 1 or more of the following matters:
a: whether the person is unfit to stand trial:
b: whether the person is insane within the meaning of section 23
c: the type and length of sentence that might be imposed on the person:
d: the nature of a requirement that the court may impose on the person as part of, or as a condition of, a sentence or order.
2: If a court orders that an assessment report on a person be prepared under subsection (1), the court may—
a: make it a condition of a grant of bail that the person go to a place approved by the court for the purpose of the assessment; or
b: order that the person be detained in a prison
c: order that the person be detained in a hospital or secure facility for the purpose of the assessment for any period not exceeding 14 days as the court thinks fit, if—
i: a remand to a prison
ii: a health assessor has expressed the opinion, in a certificate or in evidence, that it would be desirable if an assessment, or a further assessment, take place in a hospital or in a secure facility.
3: No order may be made under subsection (2)(b) or (c) in respect of a person if—
a: the person is bailable as of right; or
b: the person would have been released on bail but for the need for an assessment report.
4: If the court makes an order under subsection (2)(c) for a person's detention and assessment in a hospital or secure facility, it must record the reasons why it would have been inappropriate to order the detention of the person in a prison
5: Subsection (1)—
a: has effect despite other enactments; but
b: is subject, in the case of a defendant who is under 20 years, to sections 171 to 175 section 15 1985 No 120 s 121(1)–(4) Section 38(2)(b) amended 1 June 2005 section 206 Corrections Act 2004 Section 38(2)(c)(i) amended 1 June 2005 section 206 Corrections Act 2004 Section 38(4) amended 1 June 2005 section 206 Corrections Act 2004 Section 38(5)(b) amended 1 July 2013 section 4 Criminal Procedure (Mentally Impaired Persons) Amendment Act 2011
39: Directions as to assessments
1: On making an order under section 38(1) subject
2: Unless the court otherwise directs, every order under section 38(1)
a: any caregiver of the subject:
b: any welfare guardian of the subject:
c: if the subject is a child or young person, each parent or guardian of the child or young person:
d: the subject's family or whanau.
40: Period of detention may be extended
1: The period for which a person may be detained under an order made under section 38(2)(b) or (c)
2: It is not necessary for a person subject to detention to be present when the period of detention is extended under subsection (1), as long as the person is represented by counsel. 1985 No 120 s 121(5), (6)
41: Attendance at hospitals, etc, by persons detained in
prisons
1: A person who is detained in a prison section 38(2)(b) manager prison manager
2: A person who is taken to a hospital, facility, or place under subsection (1) may not stay in the hospital, facility, or place overnight.
3: A person who is being examined in a hospital, facility, or place continues to be in legal custody under the Corrections Act 2004 1985 No 120 s 121(7) Section 41 heading amended 1 June 2005 section 206 Corrections Act 2004 Section 41(1) amended 1 June 2005 section 206 Corrections Act 2004 Section 41(3) amended 1 June 2005 section 206 Corrections Act 2004
42: Transfer of persons from hospitals, etc, to court, penal, or Police custody
1: Even though a person has not yet been detained in a hospital or secure facility for the full period specified in an order under section 38(2)(c) subsection (3)
2: If the assessment report on a person is sent to the court before the expiry of the period for which a person has been ordered to be detained in a hospital or secure facility under section 38(2)(c)
3: The purposes for transferring a person to court or penal or Police custody, referred to in subsection (1) or subsection (2), are—
a: any hearing or the trial in respect of a charge against the person:
b: the sentencing of the person:
c: an appeal against the conviction of the person or against a sentence or order imposed on the person.
4: The transfer of a person under subsection (1) or subsection (2) to court or penal or Police custody is sufficient authority for the detention of the person in that custody until the expiry of the period for which the person has been ordered to be detained in a hospital or secure facility under section 38(2)(c) 1985 No 120 s 121(8), (10) Section 42(3)(a) replaced 1 July 2013 section 4 Criminal Procedure (Mentally Impaired Persons) Amendment Act 2011
43: Medical treatment of persons detained in hospitals, etc
1: An order under section 23 section 35 section 38(2)(c)
2: If the person is incapable of giving consent, the Director of Area Mental Health Services for the hospital or the co-ordinator for the secure facility may authorise any medical treatment or procedure that, in the opinion of that Director or co-ordinator, is immediately necessary to prevent—
a: the physical or mental deterioration of the person; or
b: serious suffering by the person; or
c: the person causing harm to himself or herself or to others.
3: This section does not limit an enactment or a rule of law that authorises the administration of a medical treatment or procedure. 1985 No 120 s 121(9)
44: Detention pending hearing or trial
1: If a defendant is brought before a court following an assessment of the defendant conducted under section 38(2)(b) or (c)
2: If an order is made under subsection (1), any subsisting order under section 38(2)(b) or (c)
3: The court may not make an order under subsection (1) without the consent of the following persons:
a: the defendant or, if the defendant is incapable of giving consent, the defendant's guardian:
b: the Director of Area Mental Health Services for the hospital, or the co-ordinator for the secure facility, in which the defendant is to be detained.
4: An order made under subsection (1)—
a: does not prevent the defendant from being brought before the court for the purposes of the hearing or trial:
b: does not operate to delay the hearing or trial:
c: is cancelled on the conclusion of the hearing or trial.
5: The court must, on the application of a party, cancel an order made under subsection (1) if,—
a: in a case where the defendant is capable of giving consent, the defendant does not wish the order to continue; or
b: in a case where the defendant is not capable of giving consent, the defendant's guardian does not wish the order to continue; or
c: the Director of Area Mental Health Services for the hospital, or the co-ordinator for the secure facility, in which the defendant is detained does not wish the order to continue; or
d: the court considers that detention of the defendant in a hospital or secure facility pending the hearing or trial is no longer necessary or appropriate. 1985 No 120 s 121(11)–(13)
45: Disclosure of assessment reports
1: In this section and in section 46 section 38 subject
2: When a report prepared under section 38
3: Despite subsection (2), the court may order that 1 or more parts of the report not be disclosed to the subject if the court considers that disclosure of those parts would be likely—
a: to prejudice the physical or mental health of the subject; or
b: to endanger the safety of any individual.
4: If the subject is represented when an order under subsection (3) is made, the entire report must be shown to the subject's counsel.
5: The subject or his or her counsel may give evidence on 1 or more matters referred to in the report.
6: A failure to comply with this section does not affect the validity of any proceedings, order, or sentence. 1985 No 120 s 122
46: Access to assessment reports
1: The following persons have access to a report submitted to a court under section 38
a: the prosecutor:
b: the manager prison
c: a Director of Area Mental Health Services or a staff member of a hospital who requires access to the report for the purposes of his or her official duties:
d: a co-ordinator or a staff member of a facility who requires access to the report for the purposes of his or her official duties:
e: an officer or employee of the Department of Corrections or of the Ministry of Justice or of the Ministry of Health who requires access to the report for the purposes of his or her official duties:
f: a health assessor who, in accordance with a direction under section 39(1)
2: If, because of an order under section 45(3) Official Information Act 1982 Privacy Act 2020 1985 No 120 s 123 Section 46(1)(b) amended 1 June 2005 section 206 Corrections Act 2004 Section 46(2) amended 1 December 2020 section 217 Privacy Act 2020
3: Transitional and consequential provisions
Transitional provisions
47: Transitional provisions
1: This Act applies to all proceedings described in section 5
2: Despite subsection (1)
a: section 34(1)(a)
b: section 39(2) section 121
3: Nothing in this Act affects the validity of—
a: an order or decision under Part 7
b: a step taken in any proceedings before the commencement of this Act.
4: Every finding under Part 7
5: An order made or deemed to have been made under section 115(1) section 24(2)(a)
6: An order made or deemed to have been made under section 115(2)(a) section 25(1)(a)
7: For the purposes of the continuation or completion of any proceedings commenced before the commencement of this Act,—
a: an order made under section 121(2)(b)(i) section 38(2)(b)
b: an order made under section 121(2)(b)(ii) section 38(2)(c)
c: an order made under section 121(11) section 44(1) Amendments to other enactments
48: Repeal of Part 7 of Criminal Justice Act 1985
Amendment(s) incorporated in the Act(s)
49: Amendment to Courts Martial Appeals Act 1953
1: Amendment(s) incorporated in the Act(s)
2: Despite subsection (1), any appeal against a finding under section 188(1A)
50: Amendments to Criminal Investigations (Bodily Samples) Act 1995
1: In this section, the Criminal Investigations (Bodily Samples) Act 1995 the Act
(2)–(4): Amendment(s) incorporated in the Act(s)
51: Consequential amendments to other enactments
The Acts specified in the Schedule