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Legislative Assembly for the ACT: 2004 Week 03 Hansard (Thursday, 11 March 2004) . . Page.. 1167 ..

could provide, about what needed to be established at a special hearing. That is why the bill is silent on defences and it acknowledges that point.

It was not intended that all the elements of the offence, including the mental elements, would need to be established. The bill amends provisions to clarify that in a special hearing the court is to decide whether the accused committed the physical elements of the offence charged only. The prosecution is not required to prove the mental elements of the offence. This was the intended interpretation of the words and is consistent with the introduction of a safeguard to ensure that a person is not detained without some opportunity for testing the allegations, as was the case prior to 1994.

Fitness to plead issues are principally about whether a person’s mental processes are disordered or impaired to the extent that the person is unable to receive a fair trial. The relevant considerations include whether the person is able to: understand the nature of the charge; understand that the proceedings are an inquiry as to whether the person committed the offence; follow the course of the proceedings; understand the substantial effect of any evidence that may be given in support of the prosecution; or give instructions to his or her legal representative. This assessment is made at the time of the trial or other legal proceedings. That is the relevant time for the assessment.

Without the amendments proposed in this bill, a person could be charged with a serious offence, found unfit to plead at the time of trial, subjected to a special hearing, subject to a non acquittal, detained and referred to the tribunal. After a very short period of time, the person may become well again and could be released straight back into the community. This person would not be able to be tried for the crime for which they were charged. Further, the courts have no further involvement with the management of a person once they have been referred to the tribunal. As I said previously, in cases involving acts of serious violence, for a person to be released after relatively short periods in custody would offend the community’s sense of justice, as well as be a source of legitimate complaint by victims.

This bill addresses these inequalities by introducing a system that balances the safety of the community and the interests of justice with the needs and position of the offender. 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, they must have been subject to a non acquittal at a special hearing, after having been found unfit to plead and, finally, they must have had an order made by either of the courts pursuant to the relevant Crimes Act sections.

Once this has occurred, a review process of their status as unfit to plead will be activated and will continue 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. If and when a person is found fit to plead, he or she could then face an ordinary criminal trial in which he or she could be found guilty, convicted and be sentenced in the ordinary course of things, having regard to any time the person may have spent in detention or custody. This is, in my view, an 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.

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