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Legislative Assembly for the ACT: 2004 Week 03 Hansard (Thursday, 11 March 2004) . . Page.. 1165 ..

why the bill had to be introduced last week and debated this week, not really giving members of this Assembly, the scrutiny of bills committee or even the community time to consider the ramifications of what it is the government is asking us to do.

I am particularly disappointed in light of the fact that a review of the operation of legislation concerning fitness to plead is actually currently underway, with a discussion paper due to be released this year. The only reason I can think of for this haste is the outrage whipped up by the media about those ACT residents accused of murder who are currently under the jurisdiction of the mental health system, and the fact that the Court of Appeal is soon to hand down its decision about whether judges or magistrates presiding should consider the mental element of a crime during special hearings.

This bill makes it clear that the government is not going to let a period of mental illness prevent an accused person facing trial. This law would actually make the decision of the Court of Appeal on special hearings irrelevant. I have conducted what stakeholder consultation I could in the time available. I have been able to determine that I will not be opposing the bill, but I will oppose specific clauses relating to what judges need to consider in a special hearing which, in the short time that we have had, I have found could actually result in a serious injustice to the accused.

I expect the original system was devised in recognition of the fact that the person who emerges at the end of a long period of mental illness is usually a very different person to the one who existed before the illness. Mental illness usually leaves very profound scars and makes a person much more susceptible to future damage from stressful events. The stress of a trial may well trigger a relapse into illness.

In this bill we are talking about people who have been continuously ill for a year or longer; we are not talking about brief or transient cases of depression or anxiety. However, I am willing not to oppose this bill in principle because I am sympathetic to the feelings of victims and the families of victims who are often angry and disappointed if an accused person who was of sound mental health when he or she committed the crime escapes punishment for their wrongdoing because they subsequently develop a temporary mental illness.

I harbour some concerns that there is no time limit on the period that can elapse between the commission of an offence and the DPP’s bringing the case for trial. Theoretically, an 80-year-old person could be held responsible for a crime they committed when they were 10 or 12 years old. That crime could be something at the level of a property crime and we could have somebody being tried for a property crime or a minor assault quite a number of years after the crime actually took place. In practice, I do not think that the DPP would do that but I think it raises a couple of points, a couple of concerns about this piece of legislation, in that the five-year threshold for crimes actually means that we will be catching things like burglary and other offences that are not necessarily as serious as other crimes, and do not necessarily have an easily identifiable victim.

A better way of doing it would have been to list the crimes—perhaps those crimes for which we said we would remove the presumption of bail because we consider them to be more serious—as opposed to setting this—

Mr Stefaniak: You would still need to establish the facts.

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