CRIMES (MENTAL IMPAIRMENT AND UNFITNESS TO BE TRIED) ACT 1997

Victorian Current Acts

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CRIMES (MENTAL IMPAIRMENT AND UNFITNESS TO BE TRIED) ACT 1997

TABLE OF PROVISIONS

PART 1--PRELIMINARY

1. Purposes
2. Commencement
3. Definitions
4. Application to courts and proceedings
5. Application to Magistrates' Court
5A. Application to Children's Court

PART 2--UNFITNESS TO STAND TRIAL

Division 1--Jury determination of unfitness to stand trial

5C. Application of this Division
6. When is a person unfit to stand trial?
7. Presumptions, standard of proof, etc.
8. Committals
9. Reservation of question of fitness to stand trial by court
10. Court may make orders pending investigation into fitness
11. Procedure on investigation
12. What happens after an investigation?
13. Abridgment of adjournment
14. What happens at the end of an adjournment?
14A. Appeal in relation to fitness to stand trial

Division 2--Determination of unfitness to stand trial by judge alone

14B. Application of this Division
14C. Question of a person's fitness to stand trial
14D. Procedure on investigation
14E. Findings of investigation into fitness to stand trial
14F. What happens after an investigation?
14G. Abridgment of adjournment
14H. What happens at the end of an adjournment?
14I. Appeal in relation to fitness to stand trial
14J. Application of Juries Act 2000
14K. Repeal of this Division

PART 3--SPECIAL HEARINGS

15. Purpose of special hearings
16. Procedure at special hearings
17. Findings at special hearings
18. Effect of findings
19. Court may make orders pending making of supervision order
19A. Appeal against unconditional release

PART 4--DEFENCE OF MENTAL IMPAIRMENT

20. Defence of mental impairment
21. Presumptions, standard of proof, etc.
22. When may the question of mental impairment be raised?
23. Effect of finding of not guilty because of mental impairment
24. Court may make orders pending making of supervision order
24AA. Appeal against mental impairment verdict
24A. Appeal against unconditional release
25. Abrogation of defence of insanity

PART 5--DISPOSITION OF PEOPLE DECLARED TO BE LIABLE TO SUPERVISION

26. Supervision orders
27. How long does a supervision order last?
28. Nominal term of supervision order
28A. Appeal against supervision order
29. Non-compliance with non-custodial supervision order
30. Emergency power of apprehension
30A. Warrant to arrest person breaching non-custodial supervision order who leaves Victoria
30B. Warrant to arrest person subject to custodial supervision order who leaves Victoria
31. Application for variation or revocation of supervision order
32. Variation of custodial supervision orders
33. Variation or revocation of non-custodial supervision orders
34. Appeal against confirmation or variation of supervision orders
34A. Appeal against revocation of non-custodial supervision orders
35. Major reviews
36. Person subject to supervision order has right to appear
37. Other parties may appear
38. Rules of evidence not to apply in certain hearings
38A. Notice of hearings to persons subject to supervision orders
38B. Notice of hearings to DPP, Attorney-General and Secretary to Department of Health and Human Services
38C. Notice of hearings to family members and victims
38D. Appointment of person to receive notice on behalf of child
38E. Provision of information to family members and victims
38F. List of family members

PART 5A--PROCEEDINGS IN THE CHILDREN'SCOURT AND APPEALS FROM THOSE PROCEEDINGS

Division 1--General

38G. Application of Part
38H. Definitions
38I. Constitution of Children's Court
38J. Remand in custody

Division 2--Unfitness to stand trial

38K. When is a child unfit to stand trial?
38L. Presumptions, standard of proof etc.
38M. Committals
38N. Reservation of question of fitness to stand trial by Children's Court
38O. Time limit for investigation into fitness
38P. Children's Court may make orders pending investigation into fitness
38Q. Procedure on investigation
38R. What happens after an investigation?
38S. Abridgment of adjournment
38T. What happens at the end of an adjournment?
38U. Appeal in relation to fitness to stand trial

Division 3--Special hearings

38V. Purpose of special hearings
38W. Procedure at special hearings
38X. Findings at special hearings
38Y. Effect of findings
38Z. Court may make orders pending making of supervision order
38ZAA. Appeal against unconditional release

Division 4--Defence of mental impairment

38ZA. Defence of mental impairment
38ZB. Presumptions, standard of proof etc.
38ZC. When may the question of mental impairment be raised?
38ZD. Effect of finding of not guilty because of mental impairment
38ZE. Appeal against mental impairment finding
38ZF. Appeal against unconditional release

Division 5--Disposition of children declared to be liable to supervision

38ZG. Application of Division
38ZH. Supervision orders
38ZI. How long does a supervision order last?
38ZJ. Appeal against supervision order
38ZK. Non-compliance with non-custodial supervision order
38ZL. Emergency power of apprehension
38ZM. Warrant to arrest child breaching non-custodial supervision order who leaves Victoria
38ZN. Application for variation or revocation of supervision order
38ZO. Variation of custodial supervision orders on application or review
38ZP. Variation or revocation of non-custodial supervision orders on application or review
38ZQ. Transfer of supervision order for review by County Court

Division 6--Reports as to supervision and victim impact statements

38ZR. Court must order report as to supervision
38ZS. Report to be prepared and filed
38ZT. Contents of report
38ZU. Report to be filed with court
38ZV. Access to reports
38ZW. Victim impact statements

PART 6--PRINCIPLES ON WHICH COURT IS TO ACT, REPORTS AND CERTIFICATES

39. Principle to be applied
40. Matters to which the court is to have regard
41. Reports on mental condition of persons declared liable to supervision
42. Reports of family members and victims
43. When and how is a report to be made?
44. Distribution of report
45. Admissibility of report
46. Examination of victim or family member
47. Certificate of available services

PART 7--LEAVE OF ABSENCE

Division 1--Leave of absence

48. Application of Division
49. What types of leave may be granted?
50. Special leave
51. What is on-ground leave?
52. What are the surrounds?
53. What is limited off-ground leave?
54. Granting of on-ground or limited off-ground leave
54A. Applicant profile
54B. Leave plan or statement
55. Suspension of special leave, on-ground leave or limited off‑ground leave
56. What is extended leave?
57. Granting of extended leave
57A. Leave plan for extended leave
57B. Appeals regarding extended leave
58. Suspension and revocation of extended leave
58A. Appeals regarding revocation of extended leave

Division 2--Forensic Leave Panel

59. Establishment of Panel
60. Functions of the Panel
61. Staff
62. Secrecy
63. Annual Report

Division 3--Procedure of Panel

64. Procedure of the Panel
65. Evidence
66. Reasons
67. Appointment of people to assist the Panel
68. Notice of hearings
69. Hearing not invalidated due to lack of notice
70. Appearance and representation at Panel hearings
71. Proceedings to be closed to public
72. Protection of members etc.
73. Offences

PART 7A--INTERSTATE TRANSFER OF PERSONS SUBJECT TO SUPERVISION ORDERS

73A. Definitions
73B. Corresponding laws and orders
73C. Informed consent
73D. Transfer of persons from Victoria to a participating State
73E. Transfer of persons from a participating State to Victoria
73F. Review of persons transferred to Victoria
73G. Nominal term of supervision order
73H. Appeal against unconditional release

PART 7B--PERSONS ABSCONDING TO VICTORIA FROM INTERSTATE

73I. Definitions
73J. Warrant to arrest person who absconds to Victoria
73K. Interim disposition order
73L. Review of interim disposition order
73M. Nominal term of supervision order
73N. Appeal against unconditional release

PART 7C--INTERNATIONAL FORENSIC PATIENTS

73O. Definition
73P. Review of international forensic patients
73Q. Nominal term of supervision order
73R. Appeal against unconditional release

PART 8--GENERAL

74. Service of notices of hearings to family members and victims
75. Suppression orders
76. Inadmissibility of evidence in other proceedings
76A. Directions
76B. Rules of court
76C. Extension of time for filing notice of appeal
76D. Powers which may be exercised by a single Judge of Appeal
78. Abolition of Governor's pleasure orders
79. Supreme Court—limitation of jurisdiction
80. Regulations

PART 10--SAVINGS AND TRANSITIONAL PROVISIONS

89. Savings and transitional provisions
90. International forensic patient—transitional provision
90A. Transitional provisions—Justice Legislation Amendment (System Enhancements and Other Matters) Act 2021

PART 11--TEMPORARY ARRANGEMENTS FOR SPECIAL HEARING BY JUDGE ALONE

Division 1--Preliminary

91. Purposes and effect of Part
92. Definition

Division 2--Special hearing by judge alone

93. Definition
94. Court may order special hearing by judge alone
95. Procedure at special hearing by judge alone
96. Findings at special hearing by judge alone
97. Judgment in special hearing by judge alone
98. Effect of finding that accused committed offence charged or alternative offence
99. Mental impairment
100. Application of Juries Act 2000
101. Application of Jury Directions Act 2015

Division 3--Appeal from decision regarding special hearing by judge alone

102. Meaning of decision regarding special hearing by judge alone
103. Right of appeal against decision regarding special hearing by judge alone
104. When leave to appeal may be given
105. How appeal against decision regarding special hearing by judge alone is commenced
106. Adjournment of special hearing if leave to appeal given
107. Determination of appeal
108. Determination of appeal to be entered on record

Division 4--Indemnity certificates and application of Appeal Costs Act 1998

109. Definitions
110. Application for indemnity certificate if appeal by accused is successful
111. Application for indemnity certificate by respondent if appeal by prosecution
112. Application of Appeal Costs Act 1998 to indemnity certificates under this Division

Division 5--Miscellaneous provisions for special hearing by judge alone

113. Time of alleged offence, commencement of criminal proceeding or finding of unfitness does not matter
114. Application for special hearing by judge alone not affected by cessation of pandemic declaration
115. Order for special hearing by judge alone not affected by cessation of pandemic declaration

Division 6--Extension of time within which special hearing must be held

116. Extension of time after investigation by jury
117. Extension of time after investigation by jury—when adjournment abridged
118. Extension of time after investigation by judge alone
119. Extension of time after investigation by judge alone—when adjournment abridged

Division 7--Repeal of Part

120. Repeal of Part
SCHEDULE 1
SCHEDULE 2
SCHEDULE 3
ENDNOTES

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