Page 3944 - Week 13 - Wednesday, 1 December 2021
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I would certainly encourage the government to be consistent in its approach to having a consistent and comprehensive body of law.
MR RATTENBURY (Kurrajong—Attorney-General, Minister for Consumer Affairs, Minister for Gaming and Minister for Water, Energy and Emissions Reduction) (12.02), in reply: I thank Mr Cain for his support for these amendments. As I alluded to in my earlier remarks, these amendments are addressing a recent decision of the Supreme Court and are consistent with the purpose of the Justice and Community Safety Legislation Amendment Bill. They will further clarify legislation administered by the directorate.
They will clarify that an accused claiming the defence of mental impairment has the burden of proving, on the balance of probabilities, that they had a mental impairment which had one of the effects listed in section 28(1) of the Criminal Code 2002. Specifically, the amendment substitutes existing subsections 28(4) and (5) of the Criminal Code with new subsections (4) and (5). Instead of referring to a mental impairment, the new subsections use the phrase, “a mental impairment which has one of the effects mentioned in subsection (1)”.
This amendment ensures it is clear that there is a presumption that the accused did not have a mental impairment with a relevant effect, and this presumption can be displaced on the balance of probabilities. Where the accused seeks to displace this presumption by raising the defence of mental impairment, the accused will bear both the legal and evidential burden of displacing the presumption, in accordance with sections 58 and 59 of the Criminal Code.
The cumulative impact of these amendments is to ensure that the defence of mental impairment continues to operate in the ACT in line with the Model Criminal Code, and that the evidential and legal burden is on the defendant to displace the presumption that they were not relevantly affected by a mental impairment when they committed the act constituting the offence.
I commend the amendments to the Assembly.
Amendments agreed to.
Bill, as a whole, as amended, agreed to.
Bill, as amended, agreed to.
Sitting suspended from 12.04 to 2.00 pm.
Questions without notice
ACT Policing—resources
MS LEE: My question is to the minister for police. Minister, I refer to reports that “victims of burglary may not get a visit from police, with officers focusing their attention on more serious crimes”. The Chief Police Officer went on to say:
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