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Legislative Assembly for the ACT: 2004 Week 03 Hansard (Thursday, 11 March 2004) . . Page.. 1162 ..

and have their matter proceed to trial. Within a matter of even months, they could, miraculously, suddenly be deemed to be quite fit to be released into the community and would never be able to be brought to book for very serious matters. The victims have suffered angst, drama, trauma and hurt as a result of their criminal activities.

This is a very important bill. A lot of other things need to be done with issues such as fitness to plead and mental health and how that relates to the criminal law, but that is a debate for another day. A lot more work needs to be done there because mental health issues do affect quite a number—a growing number—of people in the criminal justice system. It is utterly essential that justice is done, the community is protected and the rights not only of the person committing the offence but also of the victim, society and the justice system are given due weight too.

This bill goes down that path. The issue of whether you were sane when you committed an offence and whether you should be brought to book is something that I think I have made comments on in the recent past. It is also an issue which the DPP is very keen to see sorted out and fixed up. I am very pleased to see that this government has done that very promptly. I commend it for that.

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—serious offences being anything that has a maximum term of imprisonment of five years or more—and that is fine. 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. That is fair enough. In the UK, Canada, and New Zealand, a person detained following a finding of unfitness to plead may be tried when they become fit. It should be noted that all these jurisdictions also have human rights legislation, although when our little doozey of an act gets interpreted by the courts again, anything can happen. The Attorney makes that point, which is an important point to make with this type of legislation.

The amendments not only provide for flexibility but also deal with another matter where courts actually do not always get it right. Judges are human and make mistakes. There was a mistake it seems made fairly recently by our very own Supreme Court which recently ruled that the words in section 317 of the Crimes Act meant that “the prosecution was required to prove all of the essential elements of an offence, including the mental elements of an offence, though defences such as mental impairment or diminished responsibility couldn’t be raised”. The court in that instance rejected the submission made that the phrase “committed the acts which constituted the offence charged” referred only to the physical elements of the offence. Quite clearly, it was not intended that all of the elements of the offence, including the mental elements, would need to be established. If this were the case, the phrase “committed the offence” would have sufficed in section 317 of the Crimes Act.

This bill amends provisions to clarify that on a special hearing—the Supreme Court dealt with a special hearing—the court is to decide whether the accused committed the physical elements of the offence charged only—in other words, did the accused physically murder the victim or did the offender physically rob the bank? The

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