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Legislative Assembly for the ACT: 2004 Week 02 Hansard (Tuesday, 2 March 2004) . . Page.. 483 ..

and to exercise the right to challenge jurors or the jury; or to understand that the proceedings are an inquiry as to whether the person committed the offence; or to follow the course of the proceedings or understand the substantial effect of any evidence that may be given in support of the prosecution; or to give instructions to his or her legal representative.

However, a person is not unfit to plead only because he or she is suffering from memory loss. A special hearing is held when a person is found by the tribunal to be unfit to plead and is unlikely to become fit within 12 months or when the tribunal finds that a person is unfit to plead but is likely to become fit within 12 months and the person then does not become fit within that time. Special hearings are generally conducted in the Supreme Court. They are, as nearly as possible, conducted as if they were an ordinary criminal proceeding. They are unique because the outcome of a special hearing will be either an acquittal or a non-acquittal.

A non-acquittal is not available in an ordinary trial where the verdicts available for a jury are guilty, not guilty and/or that they are unable to reach a verdict. An acquittal will result in the person’s immediate release. A non-acquittal entitles the court to order that the person be detained and the person be referred to the jurisdiction of the tribunal. A non-acquittal does not constitute a basis in law for the recording of any conviction for the offence charged. Once a person is referred to the tribunal the court will have no control over the release of that person and no further involvement, although it will be required to set a limiting term—a term that equates to the penalty of imprisonment that would have been imposed had the matter proceeded as an ordinary criminal trial.

The current legislation provides that the mental health system assumes all responsibility for the person and the involvement of the criminal justice system ceases without ultimate determination of a charge and the availability of criminal sanctions that would flow upon conviction. Under present legislation a person could be charged with a serious offence, found unfit to plead at the time of the trial, subjected to a special hearing, subject to a non-acquittal, detained and referred to the tribunal.

The tribunal would be required to consider the discharge of this person every six months and could order the person’s release after considering specified matters. After a short period of time the person may become well again and could be released back into the community. That person would not be able to be tried for the crime that he or she was originally charged with as a result of section 317 (4) (b) of the Crimes Act 1900, which acts as a bar to further prosecution. Further, the courts have no further involvement with the management of a person once they have been referred to the tribunal.

In cases involving acts of serious violence, for a person to be released after relatively short periods in custody and usually no prison would offend the community’s sense of justice as well as being a source of legitimate complaint by victims. This bill introduces a system that will ensure that people who may have been quite mentally healthy and functioning normally at the time the offence was allegedly committed can be held criminally responsible for offences allegedly committed. Firstly, the person must have been charged with a serious offence, being an offence punishable by a maximum of five years imprisonment or more; secondly, the person must have been subject to a non-acquittal at a special hearing after having been found unfit to plead; and, finally, the

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