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Legislative Assembly for the ACT: 2004 Week 2 Hansard (2 March) . . Page.. 484..

MR STANHOPE (continuing):

person must have had an order made by either of the courts pursuant to the relevant sections of the Crimes Act.

Once that has occurred the Mental Health Tribunal will be required to review the person's fitness to plead at least once every 12 months until the person is found fit to plead, or the Director of Public Prosecutions has notified the tribunal in writing that he does not intend to take further proceedings against the person in relation to the offence. In considering this matter the director would be required to apply his general prosecution guidelines, and matters such as the seriousness of the crime, strength of the prosecution case, wishes of the victims or victims' families, the length of time since its alleged commission and the time the accused person had spent in custody would all be relevant factors in the exercise of this discretion.

In my view this is a more appropriate balance between the public interest and that of the offender. Offenders will be liable to be held criminally responsible for crimes they committed whilst mentally healthy when and if they recover from the mental dysfunction or illness that has subsequently developed and prevented their trial. New South Wales, Tasmania and Western Australia allow for a person to be tried on indictment for the original crime if they become fit to plead at a subsequent time. The bill removes the bar to prosecution for serious offences only. To ensure that the principles relating to double jeopardy are not infringed, the bill provides that if a person who was not fit to plead is later convicted on indictment of the original charge any time spent in custody while unfit to plead would be taken into account when any penalty is ultimately imposed upon criminal conviction.

In the United Kingdom, Canada and New Zealand, a person detained following a finding of unfitness to plead may be tried when he or she becomes fit. It should be noted that all these jurisdictions also have human rights legislation. The amendments also provide for flexibility in the timing of the reviews and will require the tribunal to conduct a review regardless of whether the person is currently subject to a mental health order, or the type of that order.

Prior to 1994 a person found to be unfit to plead at the time of the trial would be held in strict custody until the pleasure of the Governor-General was known, regardless of the seriousness or otherwise of the offence and without the allegation against the person being tested at all. Section 317 of the Crimes Act sets out that the question for determination at a special hearing is whether the jury, or the judge in those hearings that are conducted by a judge alone, is satisfied beyond reasonable doubt that the accused committed the acts that constitute the offence charged. The ACT Supreme Court recently ruled that these words mean that the prosecution is required to prove all the essential elements of the offence, including the mental elements of the offence, though defences such as mental impairment or diminished responsibility could not be raised.

The court rejected the submission that the phrase "committed the acts which constituted the offence charged"referred only to the physical elements of the offence. It was not intended that all the elements of the offence, including the mental elements, would need to be established. If that were the case, the phrase "committed the offence"would have sufficed in section 317 of the Crimes Act. The bill amends provisions to clarify that on a special hearing the court is to decide whether the accused committed only the physical

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