{"id":"crimes-mental-impairment-and-unfitness-be-tried-act-1997","name":"Crimes (Mental Impairment and Unfitness to be Tried) Act 1997","slug":"crimes-mental-impairment-and-unfitness-to-be-tried-act-1997","collection":"act","jurisdiction":"vic","status":"in_force","isInForce":true,"actNumber":null,"makingDate":null,"administeringDepartment":null,"currentVersion":{"id":174408,"registerId":"vic-crimes-mental-impairment-and-unfitness-be-tried-act-1997-current","compilationNumber":null,"startDate":"2026-04-05","status":"InForce","reasons":null,"registeredAt":null},"sections":[{"sectionNumber":"Div 4","sectionType":"division","heading":"Defence of mental impairment 91","content":"Division 4—Defence of mental impairment 91\n\n38ZA Defence of mental impairment 91\n\n38ZB Presumptions, standard of proof etc. 91\n\n38ZC When may the question of mental impairment be raised? 92\n\n38ZD Effect of finding of not guilty because of mental impairment 92\n\n38ZE Appeal against mental impairment finding 93\n\n38ZF Appeal against unconditional release 95\n\n","sortOrder":0},{"sectionNumber":"Div 5","sectionType":"division","heading":"Disposition of children declared to be liable to supervision 97","content":"Division 5—Disposition of children declared to be liable to supervision 97\n\n38ZH Supervision orders 98\n\n38ZI How long does a supervision order last? 99\n\n38ZJ Appeal against supervision order 99\n\n38ZK Non-compliance with non-custodial supervision order 102\n\n38ZL Emergency power of apprehension 103\n\n38ZM Warrant to arrest child breaching non-custodial supervision order who leaves Victoria 104\n\n38ZN Application for variation or revocation of supervision order 106\n\n38ZO Variation of custodial supervision orders on application or review 106\n\n38ZP Variation or revocation of non-custodial supervision orders on application or review 107\n\n38ZQ Transfer of supervision order for review by County Court 107\n\n","sortOrder":1},{"sectionNumber":"Div 6","sectionType":"division","heading":"Reports as to supervision and victim impact statements 108","content":"Division 6—Reports as to supervision and victim impact statements 108\n\n38ZR Court must order report as to supervision 108\n\n38ZS Report to be prepared and filed 108\n\n38ZT Contents of report 109\n\n38ZU Report to be filed with court 109\n\n38ZV Access to reports 110\n\n38ZW Victim impact statements 111\n\nPart 6—Principles on which court is to act, reports and certificates 112\n\n39 Principle to be applied 112\n\n40 Matters to which the court is to have regard 112\n\n41 Reports on mental condition of persons declared liable to supervision 114\n\n42 Reports of family members and victims 116\n\n43 When and how is a report to be made? 117\n\n44 Distribution of report 118\n\n45 Admissibility of report 118\n\n46 Examination of victim or family member 119\n\n47 Certificate of available services 119\n\nPart 7—Leave of absence 122\n\nDivision 1—Leave of absence 122\n\n48 Application of Division 122\n\n49 What types of leave may be granted? 122\n\n50 Special leave 123\n\n51 What is on-ground leave? 124\n\n52 What are the surrounds? 124\n\n53 What is limited off-ground leave? 124\n\n54 Granting of on-ground or limited off-ground leave 125\n\n54A Applicant profile 126\n\n54B Leave plan or statement 127\n\n55 Suspension of special leave, on-ground leave or limited off‑ground leave 129\n\n56 What is extended leave? 130\n\n57 Granting of extended leave 130\n\n57A Leave plan for extended leave 132\n\n57B Appeals regarding extended leave 132\n\n58 Suspension and revocation of extended leave 134\n\n58A Appeals regarding revocation of extended leave 136\n\nDivision 2—Forensic Leave Panel 138\n\n59 Establishment of Panel 138\n\n60 Functions of the Panel 139\n\n61 Staff 139\n\n62 Secrecy 139\n\n63 Annual Report 140\n\nDivision 3—Procedure of Panel 141\n\n64 Procedure of the Panel 141\n\n65 Evidence 141\n\n66 Reasons 142\n\n67 Appointment of people to assist the Panel 142\n\n68 Notice of hearings 143\n\n69 Hearing not invalidated due to lack of notice 143\n\n70 Appearance and representation at Panel hearings 143\n\n71 Proceedings to be closed to public 145\n\n72 Protection of members etc. 145\n\n73 Offences 145\n\nPart 7A—Interstate transfer of persons subject to supervision orders 147\n\n73A Definitions 147\n\n73B Corresponding laws and orders 148\n\n73C Informed consent 148\n\n73D Transfer of persons from Victoria to a participating State 148\n\n73E Transfer of persons from a participating State to Victoria 149\n\n73F Review of persons transferred to Victoria 152\n\n73G Nominal term of supervision order 153\n\n73H Appeal against unconditional release 154\n\nPart 7B—Persons absconding to Victoria from interstate 157\n\n73I Definitions 157\n\n73J Warrant to arrest person who absconds to Victoria 158\n\n73K Interim disposition order 159\n\n73L Review of interim disposition order 161\n\n73M Nominal term of supervision order 162\n\n73N Appeal against unconditional release 163\n\nPart 7C—International forensic patients 167\n\n73O Definition 167\n\n73P Review of international forensic patients 167\n\n73Q Nominal term of supervision order 168\n\n73R Appeal against unconditional release 170\n\nPart 8—General 173\n\n74 Service of notices of hearings to family members and victims 173\n\n75 Suppression orders 173\n\n76 Inadmissibility of evidence in other proceedings 174\n\n76A Directions 174\n\n76B Rules of court 175\n\n76C Extension of time for filing notice of appeal 175\n\n76D Powers which may be exercised by a single Judge of Appeal 176\n\n78 Abolition of Governor's pleasure orders 176\n\n79 Supreme Court—limitation of jurisdiction 176\n\n80 Regulations 176\n\nPart 10—Savings and transitional provisions 178\n\n89 Savings and transitional provisions 178\n\n90 International forensic patient—transitional provision 178\n\n90A Transitional provisions—Justice Legislation Amendment (System Enhancements and Other Matters) Act 2021 178\n\n91 Transitional provision—Youth Justice Act 2024—increase in minimum age of criminal responsibility 179\n\nSchedules 181\n\nSchedule 1––Provisions with respect to members of the Panel 181\n\nSchedule 2––Provisions with respect to the procedure of the Panel 186\n\nSchedule 3––Savings and transitional provisions 191\n\nEndnotes 203\n\n1 General information 203\n\n2 Table of Amendments 205\n\n3 Explanatory details 212\n\n**Version No.** **083**\n\n**Crimes (Mental Impairment and Unfitness to be Tried) Act 1997**\n\n**No. 65 of 1997**\n\nVersion incorporating amendments as at  \n\n**The Parliament of Victoria enacts as follows:**\n\n","sortOrder":2},{"sectionNumber":"Part 1","sectionType":"part","heading":"Preliminary","content":"Part 1—Preliminary\n\n","sortOrder":3},{"sectionNumber":"1","sectionType":"section","heading":"Purposes","content":"\t1 Purposes\n\nThe purposes of this Act are—\n\n(a) to define the criteria for determining if a person is unfit to stand trial;\n\n(b) to replace the common law defence of insanity with a statutory defence of mental impairment;\n\n(c) to provide new procedures for dealing with people who are unfit to stand trial or who are found not guilty because of mental impairment.\n\n","sortOrder":4},{"sectionNumber":"2","sectionType":"section","heading":"Commencement","content":"\t2 Commencement\n\n(1) This Part comes into operation on the day on which this Act receives the Royal Assent.\n\n(2) Subject to subsection (3), the remaining provisions of this Act come into operation on a day or days to be proclaimed.\n\n(3) If a provision referred to in subsection (2) does not come into operation within a period of 5 months beginning on, and including, the day on which this Act receives the Royal Assent, it comes into operation on the first day after the end of that period.\n\nS. 3 amended by No. 72/2001 s. 3(Sch. item 5.2) (ILA s. 39B(1)).\n\n","sortOrder":5},{"sectionNumber":"3","sectionType":"section","heading":"Definitions","content":"\t3 Definitions\n\n(1) In this Act—\n\nS. 3(1) def. of *appropriate place* amended by Nos 29/2010 s. 18(a), 26/2014 s. 436(1)(a), 19/2019 s. 240(a).\n\n***appropriate place*** means—\n\n(a) a designated mental health service; or\n\n(b) a residential treatment facility;\n\nS. 3(1) def. of *approved mental health service* repealed by No. 26/2014 s. 436(1)(b).\n\n ** * * * **\n\nS. 3(1) def. of *authorised psychiatrist* amended by Nos 26/2014 s. 436(1)(c), 39/2022 s. 815(a).\n\n***authorised psychiatrist*** has the same meaning as in the **Mental Health and Wellbeing Act 2022**;\n\nS. 3(1) def. of *chief psychiatrist* amended by Nos 26/2014 s. 436(1)(d), 39/2022 s. 815(b).\n\n***chief psychiatrist*** has the same meaning as in the **Mental Health and Wellbeing Act 2022**;\n\nS. 3(1) def. of *child*  \ninserted by No. 55/2014 s. 119(k), amended by No. 32/2024 s. 792.\n\n***child*** has the same meaning as in the **Youth Justice Act 2024**;\n\n***conduct*** includes doing an act and making an omission;\n\nS. 3(1) def. of *contracted service provider* repealed by No. 23/2006 s. 237(1)(a).\n\nS. 3(1) def. of *court* amended by No. 7/2002 s. 3(1)(a), substituted by No. 55/2014 s. 119(a).\n\n***court***, except in Part 5A, means Supreme Court or County Court and in section 47 includes Magistrates' Court and Children's Court;\n\nS. 3(1) def. of *custodial supervision order* amended by No. 55/2014 s. 119(b).\n\n***custodial supervision order***, except in Part 5A,  means a supervision order referred to in section 26(2)(a);\n\nS. 3(1) def. of *designated mental health service* inserted by No. 26/2014 s. 436(2), amended by No. 39/2022 s. 815(c).\n\n***designated mental health service*** has the same meaning as in section 3(1) of the **Mental Health and Wellbeing Act 2022**;\n\nS. 3(1) def. of *disability service provider* inserted by No. 29/2010 s. 18(b).\n\n***disability service provider*** has the same meaning as in the **Disability Act 2006**;\n\nS. 3(1) def. of *domestic partner* inserted by No. 72/2001 s. 3(Sch. item 5.1(a)), substituted by No. 12/2008 s. 73(1)(Sch. 1 item 15.1).\n\n***domestic partner*** of a person  means—\n\n(a) a person who is in a registered relationship with the person; or\n\n(b) an adult person to whom the person is not married but with whom the person is in a relationship as a couple where one or each of them provides personal or financial commitment and support of a domestic nature for the material benefit of the other, irrespective of their genders and whether or not they are living under the same roof, but does not include a person who provides domestic support and personal care to the person—\n\n(i) for fee or reward; or\n\n(ii) on behalf of another person or an organisation (including a government or government agency, a body corporate or a charitable or benevolent organisation);\n\n***extended leave*** has the meaning given in section 56;\n\nS. 3(1) def. of *family member* substituted by No. 72/2001 s. 3(Sch. item 5.1(b)).\n\n***family member*** of a person means—\n\n(a) a spouse or domestic partner, parent, guardian or sibling of the person; or\n\n(b) a child of the person or of the person's spouse or domestic partner;\n\nS. 3(1) def. of *federal forensic patient* inserted by No. 44/2004 s. 6(1).\n\n***federal forensic patient*** means a forensic patient referred to in paragraph (ad) of the definition of ***forensic patient*** in this subsection;\n\nS. 3(1) def. of *forensic patient* amended by Nos 7/2002 s. 3(1)(b), 44/2004 s. 6(2), 26/2014 s. 436(1)(e)(f), 55/2014 s. 119(c), 39/2022 s. 815(d).\n\n***forensic patient*** means—\n\n(a) a person—\n\n(i) remanded in custody in a designated mental health service; or\n\n(ii) committed to custody in a designated mental health service by a supervision order—\n\nunder this Act (other than Part 5A); or\n\n(ab) a person detained in a designated mental health service under section 30(2) or 30A(3); or\n\n(ac) a person deemed to be a forensic patient by section 73E(4) or 73K(8); or\n\n(ad) a person detained in a designated mental health service under section 20BJ(1) or 20BM of the Crimes Act 1914 of the Commonwealth; or\n\n(b) a person who is an international forensic patient; or\n\nS. 3(1) def. of *forensic resident* amended by No. 7/2002 s. 3(1)(c), substituted by No. 23/2006 s. 237(1)(b), amended by Nos 55/2014 s. 119(d), 19/2019 s. 240(b).\n\n***forensic resident*** means a person who is—\n\n(a) remanded in custody in a residential treatment facility (other than under Part 5A); or\n\n(b) committed to custody in a residential treatment facility by a supervision order (other than under Part 5A); or\n\n(c) detained in a residential treatment facility under section 30(2) or 30A(3); or\n\n(d) deemed to be a forensic resident by section 73E(4) or 73K(8); or\n\n(e) transferred from a prison to a residential treatment facility under section 180 of the **Disability Act 2006**;\n\nS. 3(1) def. of *investigation* amended by No. 55/2014 s. 119(e).\n\n***investigation***, except in Part 5A, means investigation under Part 2;\n\n***judicial member*** of the Panel means a member referred to in section 59(2)(a) or (b);\n\nS. 3(1) def. of *legal practitioner* inserted by No. 18/2005 s. 18(Sch. 1 item 30), amended by No. 17/2014 s. 160(Sch. 2 item 29).\n\n***legal practitioner*** means an Australian legal practitioner;\n\n***limited off-ground leave*** has the meaning given in section 53;\n\nS. 3(1) def. of *major review* inserted by No. 7/2002 s. 3(1)(d).\n\n***major review*** means a review under section 35;\n\nS. 3(1) def. of *non-custodial supervision order* amended by No. 55/2014 s. 119(f).\n\n***non-custodial supervision order***, except in Part 5A,  means a supervision order referred to in section 26(2)(b);\n\n***offence*** includes conduct that would, but for the perpetrator's mental impairment or unfitness to be tried, have constituted an offence;\n\n***on-ground leave*** has the meaning given in section 51;\n\n***Panel*** means Forensic Leave Panel established by section 59;\n\nS. 3(1) def. of *parent* inserted by No. 7/2002 s. 3(1)(e).\n\n***parent*** of a child includes a person who has day to day care and control of the child and with whom the child is ordinarily resident;\n\nS. 3(1) def. of *police officer* inserted by No. 37/2014 s. 10(Sch. item 39.1).\n\n***police officer*** has the same meaning as in the **Victoria Police Act 2013**;\n\nS. 3(1) def. of *President* amended by No. 55/2014 s. 119(g).\n\n***President***, except in Part 5A, means President of the Panel;\n\n***prison*** has the same meaning as in the **Corrections Act 1986**;\n\nS. 3(1) def. of *registered medical practitioner* substituted by Nos 97/2005 s. 182(Sch. 4 item 15(a)), 13/2010 s. 51(Sch. item 18).\n\n***registered medical practitioner*** means a person registered under  the Health Practitioner Regulation National Law to practise in the medical profession (other than as a student);\n\nS. 3(1) def. of *registered psychologist* substituted by No. 41/2000 s. 102(Sch. item 2), amended by No. 97/2005 s. 182(Sch. 4 item 15(b)), substituted by No. 13/2010 s. 51(Sch. item 18).\n\n***registered psychologist*** means a person registered under  the Health Practitioner Regulation National Law to practise in the psychology profession (other than as a student);\n\nS. 3(1) def. of *residential institution* inserted by No. 23/2006 s. 237(1)(c), repealed by No. 19/2019 s. 240(c).\n\n ** * * * **\n\nS. 3(1) def. of *residential service* repealed by No. 23/2006 s. 237(1)(c).\n\nS. 3(1) def. of *residential treatment facility* inserted by No. 23/2006 s. 237(1)(c).\n\n***residential treatment facility*** has the same meaning as it has in section 3(1) of the **Disability Act 2006**;\n\nS. 3(1) def. of *Secretary  \nto the Department  \nof Health* inserted by No. 29/2010 s. 18(b), substituted as *Secretary  \nto the Department of Health and Human Services* by No. 15/2015 s. 37(1).\n\n***Secretary to the Department of Health and Human Services*** means the Department Head (within the meaning of the **Public Administration Act 2004**) of the Department of Health and Human Services;\n\nS. 3(1) def. of *Secretary  \nto the Department  \nof Human Services* inserted by No. 29/2010 s. 18(b), repealed by No. 15/2015 s. 37(2).\n\nS. 3(1) def. of *Secure Treatment Order* inserted by No. 26/2014 s. 436(2), amended by No. 39/2022 s. 815(e).\n\n***Secure Treatment Order*** means an Order within the meaning of section 534 of the **Mental Health and Wellbeing Act 2022**;\n\nS. 3(1) def. of *special hearing* amended by No. 55/2014 s. 119(h).\n\n***special hearing***, except in Part 5A, means a hearing under Part 3;\n\n***special leave*** means leave of absence granted under section 50;\n\nS. 3(1) def. of *spouse* inserted by No. 72/2001 s. 3(Sch. item 5.1(a)).\n\n***spouse*** of a person means a person to whom the person is married;\n\nS. 3(1) def. of *supervision order* amended by No. 55/2014 s. 119(i).\n\n***supervision order***, except in Part 5A, means an order made under section 26;\n\n***surrounds*** has the meaning given in section 52;\n\nS. 3(1) def. of *victim* amended by No. 55/2014 s. 119(j).\n\n***victim***, in relation to an offence, means a person who suffered injury, loss or damage as a direct result of the offence;\n\nS. 3(1) def. of *youth justice centre*  \ninserted by No. 55/2014 s. 119(k).\n\n***youth justice centre*** has the same meaning as in the **Children, Youth and Families Act 2005**;\n\nS. 3(1) def. of *youth residential centre*  \ninserted by No. 55/2014 s. 119(k).\n\n***youth residential centre*** has the same meaning as in the **Children, Youth and Families Act 2005**.\n\nS. 3(2) inserted by No. 72/2001 s. 3(Sch. item 5.2), substituted by No. 12/2008 s. 73(1)(Sch. 1 item 15.2).\n\n(2) For the  purposes of the definition of ***domestic partner*** in subsection  (1)—\n\n(a) ***registered relationship*** has the same meaning as in the **Relationships Act 2008**; and\n\n(b) in determining whether persons who are not in a registered relationship are domestic partners of each other, all the circumstances of their relationship are to be taken into account, including any one or more of the matters referred to in section 35(2) of the **Relationships Act 2008** as may be relevant in a particular case; and\n\n(c) a person is not a domestic partner of another person only because they are co-tenants.\n\nS. 4 amended by No. 7/2002 s. 3(2)(3) (ILA s. 39B(1)).\n\n","sortOrder":6},{"sectionNumber":"4","sectionType":"section","heading":"Application to courts and proceedings","content":"\t4 Application to courts and proceedings\n\nS. 4(1) amended by No. 55/2014 s. 120.\n\n(1) Except as provided by sections 5, 5A and 25(1) and Parts 5A, 7A and 7B, this Act applies only in relation to trials of indictable offences in the Supreme Court or the County Court and proceedings ancillary or incidental to, or connected with or arising out of, those trials, including committal proceedings.\n\nS. 4(2) inserted by No. 7/2002 s. 3(3).\n\n(2) If an appeal is made under this Act to the Court of Appeal—\n\n(a) a reference in this Act to the court, in respect of the making or confirming of a supervision order by the Court of Appeal on the appeal, is a reference to the Court of Appeal; and\n\n(b) if the Court of Appeal makes or confirms a supervision order on the appeal, a reference in this Act to the court that made the supervision order is a reference to the court from which the appeal was made to the Court of Appeal.\n\nS. 4(3) inserted by No. 7/2002 s. 3(3).\n\n(3) Subsection (2) does not apply so as to allow a person to appeal to the Court of Appeal against a supervision order made by the Court of Appeal.\n\nS. 5 amended by Nos. 7/2002 s. 4 (ILA s. 39B(1)), 68/2009 s. 97(Sch. item 39.1).\n\n","sortOrder":7},{"sectionNumber":"5","sectionType":"section","heading":"Application to Magistrates' Court","content":"\t5 Application to Magistrates' Court\n\n(1) The defence of mental impairment as provided for in section 20(1) and the presumption in section 21(1) apply to summary offences and to indictable offences heard and determined summarily.\n\nS. 5(2) inserted by No. 7/2002 s. 4, amended by No. 68/2009 s. 97(Sch. item 39.1).\n\n(2) If the Magistrates' Court finds a person not guilty because of mental impairment of a summary offence or an indictable offence heard and determined summarily, the Magistrates' Court must discharge the person.\n\nS. 5(3)  \ninserted by No. 55/2014 s. 121.\n\n(3) This section does not apply to the Children's Court.\n\nS. 5A  \ninserted by No. 55/2014 s. 122.\n\n","sortOrder":8},{"sectionNumber":"5A","sectionType":"section","heading":"Application to Children's Court","content":"\t5A Application to Children's Court\n\n(1) If the Children's Court has jurisdiction to hear and determine an indictable offence, the Children's Court may determine in accordance with Part 5A—\n\n(a) the fitness of an accused to stand trial for the offence; and\n\n(b) a defence of mental impairment raised to the offence.\n\nSection 516 of the **Children, Youth and Families Act 2005** sets out the jurisdiction of the Criminal Division of the Children's Court.\n\n(2) The defence of mental impairment as provided for in section 38ZA and the presumption in section 38ZB(1) apply to summary offences and to indictable offences heard and determined summarily in the Children's Court.\n\n(3) If the Children's Court finds a child not guilty because of mental impairment of a summary offence, the Children's Court must discharge the child.\n\n","sortOrder":9},{"sectionNumber":"Part 2","sectionType":"part","heading":"Unfitness to stand trial","content":"Part 2—Unfitness to stand trial\n\nPt 2 Div. 1 (Heading and s. 5C) inserted by No. 11/2021 s. 121.\n\n","sortOrder":10},{"sectionNumber":"Div 1","sectionType":"division","heading":"Jury determination of unfitness to stand trial","content":"Division 1—Jury determination of unfitness to stand trial\n\nS. 5C inserted by No. 11/2021 s. 121.\n\n","sortOrder":11},{"sectionNumber":"5C","sectionType":"section","heading":"Application of this Division","content":"\t5C Application of this Division\n\n(1) Sections 7(3)(b), 11, 12, 13, 14 and 14A do not apply during the period that Division 2 applies.\n\n(2) This section is **repealed** on the day that Division 2 of this Part is **repealed**.\n\n","sortOrder":12},{"sectionNumber":"6","sectionType":"section","heading":"When is a person unfit to stand trial?","content":"\t6 When is a person unfit to stand trial?\n\n(1) A person is unfit to stand trial for an offence if, because the person's mental processes are disordered or impaired, the person is or, at some time during the trial, will be—\n\n(a) unable to understand the nature of the charge; or\n\n(b) unable to enter a plea to the charge and to exercise the right to challenge jurors or the jury; or\n\n(c) unable to understand the nature of the trial (namely that it is an inquiry as to whether the person committed the offence); or\n\n(d) unable to follow the course of the trial; or\n\n(e) unable to understand the substantial effect of any evidence that may be given in support of the prosecution; or\n\n(f) unable to give instructions to his or her legal practitioner.\n\n(2) A person is not unfit to stand trial only because he or she is suffering from memory loss.\n\n","sortOrder":13},{"sectionNumber":"7","sectionType":"section","heading":"Presumptions, standard of proof, etc.","content":"\t7 Presumptions, standard of proof, etc.\n\n(1) A person is presumed to be fit to stand trial.\n\n(2) The presumption is rebutted only if it is established, on an investigation under this Part, that the person is unfit to stand trial.\n\n(3) The question of a person's fitness to stand trial—\n\n(b) is to be determined on the balance of probabilities by a jury empanelled for that purpose.\n\n(4) If the question of a person's fitness to stand trial is raised by the prosecution or the defence, the party raising it bears the onus of rebutting the presumption of fitness.\n\n(5) If the question is raised by the trial judge, the prosecution has carriage of the matter, but no party bears any onus of proof in relation to it.\n\n","sortOrder":14},{"sectionNumber":"8","sectionType":"section","heading":"Committals","content":"\t8 Committals\n\nS. 8(1) amended by No. 68/2009 s. 97(Sch. item 39.2(a)  \n(b)).\n\n(1) If the question of the fitness of an accused to stand trial arises in a committal proceeding for an indictable offence—\n\nS. 8(1)(a) substituted by No. 68/2009 s. 97(Sch. item 39.2(c)).\n\n(a) the committal proceeding must be completed in accordance with Chapter 4 of the **Criminal Procedure Act 2009**; and\n\nS. 8(1)(b) amended by No. 68/2009 s. 97(Sch. item 39.2(d)), repealed by No. 5/2025 s. 51.\n\nS. 8(1)(c) amended by No. 68/2009 s. 97(Sch. item 39.2(d)).\n\n(c) if the accused is committed for trial, the question must be reserved for consideration by the trial judge.\n\nS. 8(2) amended by No. 68/2009 s. 97(Sch. item 39.3(a)).\n\n(2) Subject to subsection (3), if an accused is committed for trial and the question of his or her fitness to stand trial has been reserved under subsection (1)(c)—\n\nS. 8(2)(a) amended by No. 68/2009 s. 97(Sch. item 39.3(b)).\n\n(a) an indictment must be filed in respect of the offence; and\n\nS. 8(2)(b) amended by No. 68/2009 s. 97(Sch. item 39.3(c)).\n\n(b) the issue of whether there is a real and substantial question as to the fitness of the accused to stand trial must be determined by the trial judge; and\n\n(c) if the judge determines that there is a real and substantial question, an investigation must be held under this Part—\n\nwithin 3 months after the committal.\n\nS. 8(3) amended by No. 68/2009 s. 97(Sch. item 39.4).\n\n(3) The court before which the accused is to be tried may at any time, whether or not the period referred to in subsection (2) has expired, extend the period for a further period not exceeding 3 months.\n\n(4) The period referred to in subsection (2) may be extended under subsection (3) more than once.\n\n","sortOrder":15},{"sectionNumber":"9","sectionType":"section","heading":"Reservation of question of fitness to stand trial by court","content":"\t9 Reservation of question of fitness to stand trial by court\n\nS. 9(1) amended by No. 68/2009 s. 97(Sch. item 39.5(a)–(c)).\n\n(1) At any time after an indictment has been filed, if it appears to the court before which the accused is to be tried that there is a real and substantial question as to the fitness of the accused to stand trial, the court must reserve the question of the fitness of the accused to stand trial for investigation under this Part.\n\nS. 9(2) amended by No. 68/2009 s. 97(Sch. item 39.5(c)).\n\n(2) At any time during a trial, if it appears to the trial judge that there is a real and substantial question as to the fitness of the accused to stand trial, the judge must adjourn or discontinue the trial and proceed with an investigation under this Part.\n\nS. 9(3) amended by No. 68/2009 s. 97(Sch. item 39.5(d)).\n\n(3) Nothing in this Act prevents the question of the fitness of an accused to stand trial from being raised more than once in the same proceeding.\n\nS. 9(4) amended by Nos 7/2009 s. 425(a) (as amended by No. 68/2009 s. 54(k)), 68/2009 s. 97(Sch. item 39.5(e)).\n\n(4) For the purposes of sections 211 and 212 of the **Criminal Procedure Act 2009**, time ceases to run from the time that the question of the fitness of an accused to stand trial is reserved for investigation until the investigation has been completed.\n\n","sortOrder":16},{"sectionNumber":"10","sectionType":"section","heading":"Court may make orders pending investigation into fitness","content":"\t10 Court may make orders pending investigation into fitness\n\nS. 10(1) amended by No. 68/2009 s. 97(Sch. item 39.6(a)).\n\n(1) A court that reserves for investigation the question of the fitness of an accused to stand trial may make any one or more of the following orders—\n\nS. 10(1)(a) amended by No. 68/2009 s. 97(Sch. item 39.6(b)).\n\n(a) an order granting the accused bail;\n\nS. 10(1)(b) amended by No. 68/2009 s. 97(Sch. item 39.6(b)).\n\n(b) subject to subsection (2), an order remanding the accused in custody in an appropriate place for a specified period;\n\nS. 10(1)(ba)  \ninserted by No. 55/2014 s. 123(1).\n\n(ba) in the case of an accused who is a child, subject to subsection (2), an order remanding the accused in custody in a youth justice centre or a youth residential centre for a specified period;\n\nS. 10(1)(c) amended by No. 68/2009 s. 97(Sch. item 39.6(b)).\n\n(c) subject to subsection (3), an order remanding the accused in custody in a prison for a specified period;\n\nS. 10(1)(d)(i) amended by No. 68/2009 s. 97(Sch. item 39.6(b)).\n\n(i) that the accused undergo an examination by a registered medical practitioner or registered psychologist; and\n\nS. 10(2) amended by Nos 68/2009 s. 97(Sch. item 39.6(c)), 55/2014 s. 123(2).\n\n(2) The court must not make an order remanding an accused in custody in an appropriate place or a youth justice centre or a youth residential centre unless it has received a certificate under section 47 stating that the facilities or services necessary for that order are available.\n\nS. 10(3) amended by No. 68/2009 s. 97(Sch. item 39.6(c)).\n\n(3) The court must not make an order remanding an accused in custody in a prison unless satisfied that there is no practicable alternative in the circumstances.\n\n","sortOrder":17},{"sectionNumber":"11","sectionType":"section","heading":"Procedure on investigation","content":"\t11 Procedure on investigation\n\nS. 11(1) amended by No. 68/2009 s. 97(Sch. item 39.7(a)).\n\n(1) On an investigation into the fitness of an accused to stand trial—\n\n(a) the court must hear any relevant evidence and submissions put to the court by the prosecution or the defence;\n\n(b) if of the opinion that it is in the interests of justice to do so, the trial judge may—\n\n(i) call evidence on his or her own initiative;\n\nS. 11(1)(b)(ii) amended by No. 68/2009 s. 97(Sch. item 39.7(b)).\n\n(ii) require the accused to undergo an examination by a registered medical practitioner or registered psychologist;\n\nS. 11(1A) inserted by No. 69/2009 s. 54(Sch. Pt 1 item 13.1).\n\n(1A) Nothing in subsection (1) prevents the application of Part 3.10 of the **Evidence Act 2008** to an investigation, and for the purposes of the application of Part 3.10 the investigation is taken to be a criminal proceeding.\n\nS. 11(1B) inserted by No. 6/2017 s. 10.\n\n(1B) Section 232A of the **Criminal Procedure Act 2009** applies to an investigation as if the investigation were a trial.\n\nS. 11(2) substituted by No. 53/2000 s. 95(1).\n\n(2) The **Juries Act 2000** applies to an investigation as if the investigation were a criminal trial.\n\n(3) At the commencement of the investigation, the judge must explain to the jury—\n\n(a) the reason for the investigation; and\n\n(b) the findings which may be made; and\n\nS. 11(3)(c) amended by No. 68/2009 s. 97(Sch. item 39.7(c)).\n\n(c) that the standard of proof required in relation to the fitness of the accused to stand trial is the balance of probabilities.\n\nS. 11(4) amended by No. 68/2009 s. 97(Sch. item 39.7(b)).\n\n(4) If the jury finds that the accused is unfit to stand trial, the judge must—\n\nS. 11(4)(a) amended by No. 68/2009 s. 97(Sch. item 39.7(b)).\n\n(a) determine, by reference to any relevant evidence and on the balance of probabilities, whether or not the accused is likely to become fit to stand trial within the next 12 months; and\n\nS. 11(4)(b) amended by No. 68/2009 s. 97(Sch. item 39.7(b)).\n\n(b) if the judge determines that the accused is likely to become fit within the next 12 months, specify the period by the end of which the accused is likely to be fit to stand trial.\n\n(5) For the purposes of subsection (4) the judge may call further evidence on his or her own initiative.\n\nS. 11(6) amended by No. 68/2009 s. 97(Sch. item 39.7(a)).\n\n(6) The jury empanelled to decide the question of the fitness of an accused to stand trial must not decide any other matter in relation to the proceedings for the offence.\n\n","sortOrder":18},{"sectionNumber":"12","sectionType":"section","heading":"What happens after an investigation?","content":"\t12 What happens after an investigation?\n\nS. 12(1) amended by No. 68/2009 s. 97(Sch. item 39.8(a)).\n\n(1) If the jury finds that the accused is fit to stand trial, the trial must be commenced or  resumed in accordance with usual criminal procedures.\n\nS. 12(2) amended by No. 68/2009 s. 97(Sch. item 39.8(a)).\n\n(2) If the jury finds that the accused is not fit to stand trial and the judge determines that the accused is likely to become fit within the next 12 months, the judge must adjourn the matter for the period specified under section 11(4)(b) and may—\n\nS. 12(2)(a) amended by No. 68/2009 s. 97(Sch. item 39.8(a)).\n\n(a) grant the accused bail; or\n\nS. 12(2)(b) amended by No. 68/2009 s. 97(Sch. item 39.8(a)).\n\n(b) subject to subsection (3), remand the accused in custody in an appropriate place for a specified period (not exceeding the period specified under section 11(4)(b)); or\n\nS. 12(2)(c) amended by No. 68/2009 s. 97(Sch. item 39.8(a)).\n\n(c) subject to subsection (4), remand the accused in custody in a prison for a specified period (not exceeding the period specified under section 11(4)(b)); or\n\n(d) make any other order the judge thinks appropriate.\n\nS. 12(3) amended by No. 68/2009 s. 97(Sch. item 39.8(b)).\n\n(3) The judge must not remand an accused in custody in an appropriate place unless it has received a certificate under section 47 stating that the facilities or services necessary for that order are available.\n\nS. 12(3) amended by No. 68/2009 s. 97(Sch. item 39.8(b)).\n\n(4) The judge must not remand an accused in custody in a prison unless it is satisfied that there is no practicable alternative in the circumstances.\n\nS. 12(5) amended by No. 68/2009 s. 97(Sch. item 39.8(a)).\n\n(5) If the jury finds that the accused is not fit to stand trial and the judge determines that the accused is not likely to become fit within the next 12 months, the court must proceed to hold a special hearing under Part 3 within 3 months.\n\n","sortOrder":19},{"sectionNumber":"13","sectionType":"section","heading":"Abridgment of adjournment","content":"\t13 Abridgment of adjournment\n\nS. 13(1) amended by No. 68/2009 s. 97(Sch. item 39.9).\n\n(1) At any time during a period of adjournment under section 12(2) the accused or the Director of Public Prosecutions may apply to the court—\n\nS. 13(1)(a) amended by No. 68/2009 s. 97(Sch. item 39.9).\n\n(a) for an order that the trial commence or resume, if the accused or the Director of Public Prosecutions is of the opinion that the accused has become fit to stand trial; or\n\nS. 13(1)(b) amended by No. 68/2009 s. 97(Sch. item 39.9).\n\n(b) for an order that the court proceed to hold a special hearing, if the accused or the Director of Public Prosecutions is of the opinion that the accused will not become fit to stand trial by the end of the period of 12 months after the first finding of unfitness.\n\nS. 13(2) amended by No. 68/2009 s. 97(Sch. item 39.9).\n\n(2) An application under subsection (1) must be accompanied by a report on the mental condition of the accused by a registered medical practitioner or registered psychologist.\n\n(3) On an application under subsection (1) the court must—\n\nS. 13(3)(b) amended by No. 68/2009 s. 97(Sch. item 39.9).\n\n(b) if satisfied that the accused has become fit to stand trial, make an order that the trial commence or resume; or\n\nS. 13(3)(c) amended by No. 68/2009 s. 97(Sch. item 39.9).\n\n(c) if satisfied that the accused will not become fit to stand trial by the end of the period of 12 months after the first finding of unfitness, make an order that the court proceed to hold a special hearing within 3 months.\n\n","sortOrder":20},{"sectionNumber":"14","sectionType":"section","heading":"What happens at the end of an adjournment?","content":"\t14 What happens at the end of an adjournment?\n\nS. 14(1) amended by No. 68/2009 s. 97(Sch. item 39.10).\n\n(1) At the end of the period of adjournment under section 12(2), the accused is presumed to be fit to stand trial unless a real and substantial question of fitness is raised again.\n\n(2) If a real and substantial question of fitness is raised again, the judge must—\n\n(a) extend the period of adjournment for a further period, but not so that the total period since the first finding of unfitness exceeds 12 months; or\n\n(b) proceed to hold a special hearing under Part 3 within 3 months.\n\n(3) If the judge extends the period of adjournment under subsection (2)(a), the judge may make any order referred to in section 12(2) or vary any order already made under that section (and for that purpose section 12(3) and (4) apply accordingly).\n\n(4) At the end of the period of adjournment—\n\nS. 14(4)(a) amended by No. 68/2009 s. 97(Sch. item 39.10).\n\n(a) if the trial of the accused has commenced, it must be resumed as soon as practicable in accordance with usual criminal procedures; or\n\n(b) subject to subsection (5), if the trial has not commenced, it must be commenced within 3 months.\n\nS. 14(5) amended by No. 68/2009 s. 97(Sch. item 39.10).\n\n(5) The court before which the accused is to be tried may at any time, whether or not the period referred to in subsection (4)(b) has expired, extend that period for a further period not exceeding 3 months.\n\n(6) The period for commencement of a trial may be extended under subsection (5) more than once.\n\nS. 14(7) amended by No. 7/2009 s. 425(b) (as amended by No. 68/2009 s. 54(k)).\n\n(7) An extension of time under subsection (5) also serves, if necessary, as an extension of time for the purposes of section 211 or 212 of the **Criminal Procedure Act 2009** (as the case may be).\n\nS. 14A (Heading)  \namended by No. 55/2014 s. 124.\n\nS. 14A inserted by No. 7/2009 s. 423 (as amended by No. 68/2009 ss 44, 54(i)).\n\n","sortOrder":21},{"sectionNumber":"14A","sectionType":"section","heading":"Appeal in relation to fitness to stand trial","content":"\t14A Appeal in relation to fitness to stand trial\n\n(1) In a criminal proceeding in the County Court or the Trial Division of the Supreme Court, if the question has arisen whether an accused is unfit to stand trial and on an investigation under this Part a jury finds that the accused is unfit to stand trial, the accused may appeal to the Court of Appeal against the finding on any ground of appeal, with the leave of the Court of Appeal.\n\n(2) An application for leave to appeal under subsection (1) is commenced by filing a notice of application for leave to appeal in accordance with the rules of court within 28 days after the day on which the finding is made or any extension of that period granted under section 76C.\n\n(3) The Registrar of Criminal Appeals of the Supreme Court must provide to the respondent a copy of the notice of application for leave to appeal within 7 days after the day on which the notice of application is filed.\n\n(4) On an appeal under subsection (1), the Court of Appeal must allow the appeal if the appellant satisfies the court that—\n\n(b) the trial judge made a material error of law; or\n\n(c) for any other reason the court considers that the finding should not stand.\n\n(5) In any other case, the Court of Appeal must dismiss an appeal under subsection (1).\n\n(6) If the Court of Appeal allows an appeal under subsection (1), it must set aside the finding of unfitness to stand trial and either—\n\n(a) refer the matter to the Trial Division of the Supreme Court or to the County Court for trial and the accused may be tried for the offence charged against the accused; or\n\n(b) remit the matter for a rehearing of the investigation under this Part as to whether the accused is fit to stand trial.\n\n(7) Despite subsection (6), if the Court of Appeal allows an appeal under subsection (1) but considers that the accused is unfit to stand trial, it may affirm the finding and refer the matter to the Trial Division of the Supreme Court or to the County Court.\n\n(8) If the Court of Appeal remits a matter under subsection (6)(b)—\n\n(a) it may give directions concerning the manner and scope of the rehearing, including a direction as to whether the rehearing is to be conducted by the same judge or a different judge; and\n\n(b) the court conducting the rehearing, whether constituted by the same judge or a different judge, must hear and determine the matter in accordance with the directions, if any.\n\n(9) On remitting or referring a matter under this section, the Court of Appeal may remand the accused in custody or grant bail to the accused or make any other order that the court considers appropriate for the safe custody of the accused.\n\nPt 2 Div. 2 (Heading and ss 14B–14K) inserted by No. 11/2021 s. 122.\n\n","sortOrder":22},{"sectionNumber":"Div 2","sectionType":"division","heading":"Determination of unfitness to stand trial by judge alone","content":"Division 2—Determination of unfitness to stand trial by judge alone\n\nS. 14B inserted by No. 11/2021 s. 122.\n\n","sortOrder":23},{"sectionNumber":"14B","sectionType":"section","heading":"Application of this Division","content":"\t14B Application of this Division\n\n(1) This Division applies from 26 April 2021 until section 10 is substituted.\n\n(2) A provision specified in section 5C does not apply while this Division applies.\n\nS. 14C inserted by No. 11/2021 s. 122.\n\n","sortOrder":24},{"sectionNumber":"14C","sectionType":"section","heading":"Question of a person's fitness to stand trial","content":"\t14C Question of a person's fitness to stand trial\n\nThe question of a person's fitness to stand trial is to be determined on the balance of probabilities by the court at an investigation into the fitness of the accused to stand trial.\n\nS. 14D inserted by No. 11/2021 s. 122.\n\n","sortOrder":25},{"sectionNumber":"14D","sectionType":"section","heading":"Procedure on investigation","content":"\t14D Procedure on investigation\n\n(1) At an investigation into the fitness of an accused to stand trial, the court—\n\n(a) must hear any relevant evidence and submissions put to the court by the prosecution and the defence; and\n\n(b) if of the opinion that it is in the interests of justice to do so, may—\n\n(i) call evidence on its own motion; or\n\n(ii) require the accused to undergo an examination by a registered medical practitioner or registered psychologist; or\n\n(2) Nothing in subsection (1) prevents the application of Part 3.10 of the **Evidence Act 2008** to an investigation and, for the purposes of Part 3.10 of that Act, theinvestigation is taken to be a criminal proceeding.\n\n(3) Section 232A of the **Criminal Procedure Act 2009** applies to an investigation as if the investigation were a trial.\n\n(4) If the court finds that the accused is not fit to stand trial, the court must—\n\n(a) determine, by reference to any relevant evidence and on the balance of probabilities, whether or not the accused is likely to become fit to stand trial within the next 12 months; and\n\n(b) if the court determines that the accused is likely to become fit within the next 12 months, specify the period by the end of which the accused is likely to be fit to stand trial.\n\n(5) For the purposes of subsection (4), the court may call further evidence on its own motion.\n\nS. 14E inserted by No. 11/2021 s. 122.\n\n","sortOrder":26},{"sectionNumber":"14E","sectionType":"section","heading":"Findings of investigation into fitness to stand trial","content":"\t14E Findings of investigation into fitness to stand trial\n\nAt an investigation into the fitness of an accused to stand trial, the court may find—\n\n(a) the accused is fit to stand trial; or\n\n(b) the accused is not fit to stand trial.\n\nS. 14F inserted by No. 11/2021 s. 122.\n\n","sortOrder":27},{"sectionNumber":"14F","sectionType":"section","heading":"What happens after an investigation?","content":"\t14F What happens after an investigation?\n\n(1) If the court finds that the accused is fit to stand trial, the trial must be commenced or resumed in accordance with usual criminal procedures.\n\n(2) If the court finds that the accused is not fit to stand trial but determines that the accused is likely to become fit within the next 12 months, the court must adjourn the matter for the period specified under section 14D(4)(b) and may—\n\n(a) grant the accused bail; or\n\n(b) subject to subsection (3), remand the accused in custody in an appropriate place for a specified period (not exceeding the period specified under section 14D(4)(b)); or\n\n(c) subject to subsection (4), remand the accused in custody in a prison for a specified period (not exceeding the period specified under section 14D(4)(b)); or\n\n(d) make any other order the court thinks appropriate.\n\n(3) The court must not remand an accused in custody in an appropriate place unless it has received a certificate under section 47 stating that the facilities or services necessary for that order are available.\n\n(4) The court must not remand an accused in custody in a prison unless it is satisfied that there is no practicable alternative in the circumstances.\n\n(5) If the court finds that the accused is not fit to stand trial and determines that the accused is not likely to become fit within the next 12 months, the court must hold a special hearing under Part 3 within 3 months and may—\n\n(a) either—\n\n(i) grant the accused bail; or\n\n(ii) subject to subsections (3) and (4), remand the accused in custody as described in subsection (2)(b) or (c); and\n\n(b) make any other order the court thinks appropriate.\n\nS. 14G inserted by No. 11/2021 s. 122.\n\n","sortOrder":28},{"sectionNumber":"14G","sectionType":"section","heading":"Abridgment of adjournment","content":"\t14G Abridgment of adjournment\n\n(1) At any time during a period of adjournment under section 14F(2), the accused or the Director of Public Prosecutions may apply to the court—\n\n(a) for an order that the trial commence or resume, if the accused or the Director of Public Prosecutions is of the opinion that the accused has become fit to stand trial; or\n\n(b) for an order that the court proceed to hold a special hearing, if the accused or the Director of Public Prosecutions is of the opinion that the accused will not become fit to stand trial by the end of the period of 12 months after the first finding of unfitness.\n\n(2) An application under subsection (1) must be accompanied by a report on the mental condition of the accused by a registered medical practitioner or registered psychologist.\n\n(3) On an application under subsection (1) the court must—\n\n(b) if satisfied that the accused has become fit to stand trial, make an order that the trial commence or resume; or\n\n(c) if satisfied that the accused will not become fit to stand trial by the end of the period of 12 months after the first finding of unfitness, make an order that the court proceed to hold a special hearing within 3 months.\n\nS. 14H inserted by No. 11/2021 s. 122.\n\n","sortOrder":29},{"sectionNumber":"14H","sectionType":"section","heading":"What happens at the end of an adjournment?","content":"\t14H What happens at the end of an adjournment?\n\n(1) At the end of the period of adjournment under section 14F(2), the accused is presumed to be fit to stand trial unless a real and substantial question of fitness is raised again.\n\n(2) If a real and substantial question of fitness is raised again, the court must—\n\n(a) extend the period of adjournment for a further period, but not so that the total period since the first finding of unfitness exceeds 12 months; or\n\n(b) proceed to hold a special hearing under Part 3 within 3 months.\n\n(3) If the court extends the period of adjournment, the court may make any order referred to in section 14F(2) or vary any order already made under that section and for that purpose section 14F(3) and (4) apply accordingly.\n\n(4) At the end of the period of adjournment—\n\n(a) if the trial of the accused has commenced, it must be resumed as soon as practicable in accordance with usual criminal procedures; or\n\n(b) subject to subsection (5), if the trial has not commenced, it must be commenced within 3 months.\n\n(5) The court before which the accused is to be tried may at any time, whether or not the period referred to in subsection (4)(b) has expired, extend that period for a further period not exceeding 3 months.\n\n(6) The period for commencement of a trial may be extended under subsection (5) more than once.\n\n(7) An extension of time under subsection (5) also serves, if necessary, as an extension of time for the purposes of section 211 or 212 of the **Criminal Procedure Act 2009** (as the case may be).\n\nS. 14I inserted by No. 11/2021 s. 122.\n\n","sortOrder":30},{"sectionNumber":"14I","sectionType":"section","heading":"Appeal in relation to fitness to stand trial","content":"\t14I Appeal in relation to fitness to stand trial\n\n(1) In a criminal proceeding in the County Court or the Trial Division of the Supreme Court, if the question has arisen whether an accused is unfit to stand trial and on an investigation under this Division a court finds that the accused is unfit to stand trial, the accused may appeal to the Court of Appeal against the finding on any ground of appeal, with leave of the Court of Appeal.\n\n(2) An application for leave to appeal under subsection (1) is commenced by filing a notice of application for leave to appeal in accordance with the rules of court within 28 days after the day on which the finding is made or any extension of that period granted under section 76C.\n\n(3) The Registrar of Criminal Appeals of the Supreme Court must provide to the respondent a copy of the notice of application for leave to appeal within 7 days after the day on which the notice of application is filed.\n\n(4) On an appeal under subsection (1), the Court of Appeal must allow the appeal if the appellant satisfies the court that—\n\n(b) the trial judge made a material error of law; or\n\n(c) for any other reason the court considers that the finding should not stand.\n\n(5) In any other case, the Court of Appeal must dismiss an appeal under subsection (1).\n\n(6) If the Court of Appeal allows an appeal under subsection (1), it must set aside the finding of unfitness to stand trial and either—\n\n(a) refer the matter to the Trial Division of the Supreme Court or to the County Court for trial and the accused may be tried for the offence charged against the accused; or\n\n(b) remit the matter for a rehearing of the investigation under this Division as to whether the accused is fit to stand trial.\n\n(7) Despite subsection (6), if the Court of Appeal allows an appeal under subsection (1) but considers that the accused is unfit to stand trial, it may affirm the finding and refer the matter to the Trial Division of the Supreme Court or to the County Court.\n\n(8) If the Court of Appeal remits a matter under subsection (6)(b)—\n\n(a) it may give directions concerning the manner and scope of the rehearing, including a direction as to whether the rehearing is to be conducted by the same judge or a different judge; and\n\n(b) the court conducting the rehearing, whether constituted by the same judge or a different judge, must hear and determine the matter in accordance with the directions, if any.\n\n(9) On remitting or referring a matter under this section, the Court of Appeal may remand the accused in custody or grant bail to the accused or make any other order that the court considers appropriate for the safe custody of the accused.\n\nS. 14J inserted by No. 11/2021 s. 122.\n\n","sortOrder":31},{"sectionNumber":"14J","sectionType":"section","heading":"Application of Juries Act 2000","content":"\t14J Application of Juries Act 2000\n\nFor the purposes of the definition of ***criminal trial*** in section 3 of the **Juries Act 2000**, ***criminal trial*** does not include an investigation conducted in accordance with this Division.\n\nS. 14K inserted by No. 11/2021 s. 122.\n\n","sortOrder":32},{"sectionNumber":"14K","sectionType":"section","heading":"Repeal of this Division","content":"\t14K Repeal of this Division\n\nThis Division is **repealed** on the day that section 10 is substituted.\n\n","sortOrder":33},{"sectionNumber":"Part 3","sectionType":"part","heading":"Special hearings","content":"Part 3—Special hearings\n\nS. 15 amended by No. 68/2009 s. 97(Sch. item 39.11).\n\n","sortOrder":34},{"sectionNumber":"15","sectionType":"section","heading":"Purpose of special hearings","content":"\t15 Purpose of special hearings\n\nThe purpose of a special hearing is to determine whether, on the evidence available, the accused—\n\n(a) is not guilty of the offence; or\n\n(b) is not guilty of the offence because of mental impairment; or\n\n(c) committed the offence charged or an offence available as an alternative.\n\n","sortOrder":35},{"sectionNumber":"16","sectionType":"section","heading":"Procedure at special hearings","content":"\t16 Procedure at special hearings\n\nS. 16(1) substituted by No. 53/2000 s. 95(2).\n\n(1) A special hearing is to be conducted as nearly as possible as if it were a criminal trial and, for that purpose, the **Juries Act 2000** applies, subject to this section.\n\n(2) Without limiting subsection (2), at a special hearing—\n\nS. 16(2)(a) amended by No. 68/2009 s. 97(Sch. item 39.12(a)).\n\n(a) the accused must be taken to have pleaded not guilty to the offence; and\n\nS. 16(2)(b) amended by No. 68/2009 s. 97(Sch. item 39.12(b) (c)).\n\n(b) the legal representative (if any) of the accused may exercise the rights of the accused to challenge jurors (either for cause or peremptorily) or the jury;\n\nS. 16(2)(c) amended by No. 68/2009 s. 97(Sch. item 39.12(a)).\n\n(c) the accused may raise any defence that could be raised if the special hearing were a criminal trial, including the defence of mental impairment;\n\n(d) the rules of evidence apply;\n\nS. 16(2)(e) amended by No. 68/2009 s. 97(Sch. item 39.12(d)).\n\n(e) section 197 of the **Criminal Procedure Act 2009** (Order for legal representation for accused) applies as if the special hearing were a criminal trial;\n\n(f) any alternative verdict that would be available if the special hearing were a criminal trial is available to the jury.\n\nNote to s. 16(2) inserted by No. 6/2017 s. 11.\n\nAt a special hearing the judge may give directions under section 232A of the **Criminal Procedure Act 2009**. That section enables the judge, with the consent of the prosecution and the accused, to direct that expert witnesses give their evidence concurrently or consecutively. The judge may direct that this evidence be given at any stage of the special hearing, including before the prosecution has closed its case.\n\n(3) At the commencement of a special hearing, the judge must explain to the jury—\n\nS. 16(3)(a) amended by No. 68/2009 s. 97(Sch. item 39.12(a)).\n\n(a) that the accused is unfit to be tried in accordance with the usual procedures of a criminal trial; and\n\n(b) the meaning of being unfit to stand trial; and\n\n(c) the purpose of the special hearing; and\n\n(d) the findings that are available; and\n\n(e) the standard of proof required for those findings.\n\n","sortOrder":36},{"sectionNumber":"17","sectionType":"section","heading":"Findings at special hearings","content":"\t17 Findings at special hearings\n\n(1) The following findings are available to the jury at a special hearing—\n\n(a) not guilty of the offence charged;\n\n(b) not guilty of the offence because of mental impairment;\n\nS. 17(1)(c) amended by No. 68/2009 s. 97(Sch. item 39.13).\n\n(c) the accused committed the offence charged or an offence available as an alternative.\n\nS. 17(2) amended by No. 68/2009 s. 97(Sch. item 39.13).\n\n(2) To make a finding under subsection (1)(c) the jury must be satisfied beyond reasonable doubt, on the evidence available, that the accused committed the offence charged or an offence available as an alternative.\n\n","sortOrder":37},{"sectionNumber":"18","sectionType":"section","heading":"Effect of findings","content":"\t18 Effect of findings\n\nS. 18(1) amended by No. 68/2009 s. 97(Sch. item 39.14).\n\n(1) If a jury makes a finding under section 17(1)(a), the person is to be taken for all purposes to have been found not guilty at a criminal trial.\n\n(2) A finding under section 17(1)(b) is to be taken for all purposes to be a finding at a criminal trial of not guilty because of mental impairment.\n\nNote to s. 18(2) inserted by No. 7/2009 s. 425(c) (as amended by No. 68/2009 s. 54(k)).\n\nSection 24AA provides for appeals against a verdict of not guilty because of mental impairment.\n\n(3) A finding under section 17(1)(c)—\n\n(a) constitutes a qualified finding of guilt and does not constitute a basis in law for any conviction for the offence to which the finding relates; and\n\n(b) constitutes a bar to further prosecution in respect of the same circumstances; and\n\nS. 18(3)(c) amended by No. 68/2009 s. 97(Sch. item 39.14).\n\n(c) is subject to appeal in the same manner as if the person had been convicted of the offence in a criminal trial.\n\n(4) If a jury makes a finding under section 17(1)(c)[[1]](#endnote-1), the judge must—\n\nS. 18(4)(a) amended by No. 68/2009 s. 97(Sch. item 39.14).\n\n(a) declare that the person is liable to supervision under Part 5; or\n\nS. 18(4)(b) amended by No. 68/2009 s. 97(Sch. item 39.14).\n\n(b) order the person to be released unconditionally[[2]](#endnote-2).\n\n","sortOrder":38},{"sectionNumber":"19","sectionType":"section","heading":"Court may make orders pending making of supervision order","content":"\t19 Court may make orders pending making of supervision order\n\nS. 19(1) amended by No. 68/2009 s. 97(Sch. item 39.15).\n\n(1) If the judge declares a person liable to supervision, the judge may make any one or more of the following orders pending the making of a supervision order—\n\nS. 19(1)(a) amended by No. 68/2009 s. 97(Sch. item 39.15).\n\nS. 19(1)(b) amended by No. 68/2009 s. 97(Sch. item 39.15).\n\n(b) subject to subsection (2), an order remanding the person in custody in an appropriate place;\n\nS. 19(1)(c) amended by No. 68/2009 s. 97(Sch. item 39.15).\n\n(c) subject to subsection (3), an order remanding the person in custody in a prison;\n\n(d) if he or she is of the opinion that it is in the interests of justice to do so, an order—\n\nS. 19(1)(d)(i) amended by No. 68/2009 s. 97(Sch. item 39.15).\n\n(e) any other order the judge thinks appropriate.\n\nS. 19(2) amended by No. 68/2009 s. 97(Sch. item 39.15).\n\n(2) The judge must not make an order remanding a person in custody in an appropriate place unless the court has received a certificate under section 47 stating that the facilities or services necessary for that order are available.\n\nS. 19(3) amended by No. 68/2009 s. 97(Sch. item 39.15).\n\n(3) The judge must not make an order remanding a person in custody in a prison unless satisfied that there is no practicable alternative in the circumstances.\n\nS. 19A inserted by No. 7/2002 s. 5.\n\n","sortOrder":39},{"sectionNumber":"19A","sectionType":"section","heading":"Appeal against unconditional release","content":"\t19A Appeal against unconditional release\n\n(1) The Director of Public Prosecutions may appeal to the Court of Appeal against an order for unconditional release under section 18(4)(b) if he or she considers that—\n\nS. 19A(1A) inserted by No. 68/2009 s. 97(Sch. item 39.17).\n\n(1A) An appeal under subsection (1) is commenced by filing a notice of appeal in accordance with the rules of court within 28 days after the day on which the order is made or any extension of that period granted under section 76C.\n\nS. 19A(1B) inserted by No. 68/2009 s. 97(Sch. item 39.17).\n\n(1B) A notice of appeal under subsection (1A) must be signed by the Director of Public Prosecutions personally.\n\nS. 19A(1C) inserted by No. 68/2009 s. 97(Sch. item 39.17).\n\n(1C) A copy of the notice of appeal must be served personally on the respondent in accordance with section 391 of the **Criminal Procedure Act 2009** within 7 days after the day on which the notice of appeal is filed.\n\nS. 19A(1D) inserted by No. 68/2009 s. 97(Sch. item 39.17).\n\n(1D) The Director of Public Prosecutions must provide a copy of the notice of appeal to the legal practitioner who last represented the respondent in the special hearing, if that legal practitioner can reasonably be identified.\n\nS. 19A(2)(b) amended by No. 68/2009 s. 97(Sch. item 39.16).\n\n(b) set aside the order and by order declare that the person is liable to supervision under Part 5.\n\nS. 19A(3) amended by No. 68/2009 s. 97(Sch. item 39.16(b)).\n\n(3) If the Court of Appeal declares a person liable to supervision, the Court of Appeal may—\n\n(a) remit the matter, with or without directions, to the court that made the order for unconditional release; or\n\nS. 19A(3)(b) amended by No. 68/2009 s. 97(Sch. item 39.16(b)).\n\n(b) make a supervision order in respect of the person.\n\nS. 19A(4) amended by No. 68/2009 s. 97(Sch. item 39.16(b)).\n\n(4) If the Court of Appeal remits a matter to a court under subsection (3)(a), that court must make a supervision order in respect of the person in accordance with this Act and any directions given by the Court of Appeal.\n\nS. 19A(5) amended by No. 68/2009 s. 97(Sch. item 39.16(b)).\n\n(5) The Court of Appeal may make any order that the judge could have made under section 19 pending the making of a supervision order in respect of the person.\n\n","sortOrder":40},{"sectionNumber":"Part 4","sectionType":"part","heading":"Defence of mental impairment","content":"Part 4—Defence of mental impairment\n\n","sortOrder":41},{"sectionNumber":"20","sectionType":"section","heading":"Defence of mental impairment","content":"\t20 Defence of mental impairment\n\n(1) The defence of mental impairment is established for a person charged with an offence if, at the time of engaging in conduct constituting the offence, the person was suffering from a mental impairment that had the effect that—\n\n(a) he or she did not know the nature and quality of the conduct; or\n\n(b) he or she did not know that the conduct was wrong (that is, he or she could not reason with a moderate degree of sense and composure about whether the conduct, as perceived by reasonable people, was wrong).\n\n(2) If the defence of mental impairment is established, the person must be found not guilty because of mental impairment.\n\n","sortOrder":42},{"sectionNumber":"21","sectionType":"section","heading":"Presumptions, standard of proof, etc.","content":"\t21 Presumptions, standard of proof, etc.\n\n(1) A person is presumed not to have been suffering from a mental impairment having the effect referred to in section 20(1) until the contrary is proved.\n\n(2) The question whether a person was suffering from a mental impairment having the effect referred to in section 20(1)—\n\nS. 21(2)(b) amended by No. 77/2005 s. 10(1).\n\n(b) subject to subsection (4), is to be determined by a jury on the balance of probabilities.\n\n(3) If the defence of mental impairment is raised by the prosecution or the defence, the party raising it bears the onus of rebutting the presumption.\n\nS. 21(4) inserted by No. 77/2005 s. 10(2).\n\n(4) If a person is charged with an indictable offence and, before the empanelment of a jury, the prosecution and the defence agree that the proposed evidence establishes the defence of mental impairment, the trial judge may hear the evidence and—\n\n(a) if the trial judge is satisfied that the evidence establishes the defence of mental impairment, may direct that a verdict of not guilty because of mental impairment be recorded; or\n\nS. 21(4)(b) amended by No. 68/2009 s. 97(Sch. item 39.18).\n\n(b) if the trial judge is not so satisfied, must direct that the person be tried by a jury.\n\n","sortOrder":43},{"sectionNumber":"22","sectionType":"section","heading":"When may the question of mental impairment be raised?","content":"\t22 When may the question of mental impairment be raised?\n\n(1) The question of mental impairment may be raised at any time during a trial by the defence or, with the leave of the trial judge, by the prosecution.\n\nS. 22(2) amended by No. 77/2005 s. 10(3).\n\n(2) If there is admissible evidence that raises the question of mental impairment and a jury has been empanelled—\n\n(a) the judge must direct the jury to consider the question and explain to the jury the findings which may be made and the legal consequences of those findings; and\n\nS. 22(2)(b) amended by No. 68/2009 s. 97(Sch. item 39.19).\n\n(b) if the jury finds the accused not guilty, it must specify in its verdict whether or not it so finds because of mental impairment.\n\nS. 22(3) amended by No. 68/2009 s. 97(Sch. item 39.20), repealed by No. 5/2025 s. 52.\n\nS. 23 amended by No. 68/2009 s. 97(Sch. item 39.21).\n\n","sortOrder":44},{"sectionNumber":"23","sectionType":"section","heading":"Effect of finding of not guilty because of mental impairment","content":"\t23 Effect of finding of not guilty because of mental impairment\n\nIf a person is found not guilty because of mental impairment, the court must—\n\nS. 23(a) amended by No. 68/2009 s. 97(Sch. item 39.21).\n\n(a) declare that the person is liable to supervision under Part 5; or\n\nS. 23(b) amended by No. 68/2009 s. 97(Sch. item 39.21).\n\n(b) order the person to be released unconditionally[[3]](#endnote-3).\n\n","sortOrder":45},{"sectionNumber":"24","sectionType":"section","heading":"Court may make orders pending making of supervision order","content":"\t24 Court may make orders pending making of supervision order\n\nS. 24(1) amended by No. 68/2009 s. 97(Sch. item 39.22).\n\n(1) If the court declares a person liable to supervision, the court may make any one or more of the following orders pending the making of a supervision order—\n\nS. 24(1)(a) amended by No. 68/2009 s. 97(Sch. item 39.22).\n\nS. 24(1)(b) amended by No. 68/2009 s. 97(Sch. item 39.22).\n\n(b) subject to subsection (2), an order remanding the person in custody in an appropriate place;\n\nS. 24(1)(c) amended by No. 68/2009 s. 97(Sch. item 39.22).\n\n(c) subject to subsection (3), an order remanding the person in custody in a prison;\n\nS. 24(1)(d)(i) amended by No. 68/2009 s. 97(Sch. item 39.22).\n\nS. 24(2) amended by No. 68/2009 s. 97(Sch. item 39.22).\n\n(2) The court must not make an order remanding a person in custody in an appropriate place unless the court has received a certificate under section 47 stating that the facilities or services necessary for that order are available.\n\nS. 24(3) amended by No. 68/2009 s. 97(Sch. item 39.22).\n\n(3) The court must not make an order remanding a person in custody in a prison unless satisfied that there is no practicable alternative in the circumstances.\n\nS. 24AA inserted by No. 7/2009 s. 424 (as amended by No. 68/2009 ss 45, 54(j)).\n\n\t24AA Appeal against mental impairment verdict\n\n(1) In a criminal proceeding in the County Court or the Trial Division of the Supreme Court, if a verdict of not guilty because of mental impairment is recorded against a person, the person may appeal to the Court of Appeal against the verdict on any ground of appeal, with the leave of the Court of Appeal.\n\n(2) An application for leave to appeal under subsection (1) is commenced by filing a notice of application for leave to appeal in accordance with the rules of court within 28 days after the day on which the verdict is recorded or any extension of that period granted under section 76C.\n\n(3) The Registrar of Criminal Appeals of the Supreme Court must provide to the respondent a copy of the notice of application for leave to appeal within 7 days after the day on which the notice of application is filed.\n\n(4) On an appeal under subsection (1), the Court of Appeal must allow the appeal if the appellant satisfies the court that—\n\n(a) the verdict of the jury is unreasonable or cannot be supported having regard to the evidence; or\n\n(b) as a result of an error or an irregularity in, or in relation to, the trial there has been a substantial miscarriage of justice; or\n\n(c) for any other reason there has been a substantial miscarriage of justice.\n\n(5) Despite subsection (4), the Court of Appeal may dismiss an appeal that would otherwise be allowed under that subsection if—\n\n(a) none of the grounds for allowing the appeal relates to the issue of the mental impairment of the appellant; and\n\n(b) the court considers that, but for the mental impairment of the appellant, the proper verdict would have been that the appellant was guilty of an offence other than the offence charged.\n\n(6) In any other case, the Court of Appeal must dismiss an appeal under subsection (1).\n\n(7) If the Court of Appeal—\n\n(a) allows an appeal under subsection (1) on a ground that the verdict of not guilty because of mental impairment ought not to stand; and\n\n(b) considers that the proper verdict would have been guilty of an offence, whether the offence charged or an offence available as an alternative verdict—\n\nthe Court of Appeal must substitute for the verdict a verdict of guilty of that offence and may make any order, or exercise any power, that the court from which the appeal was brought could have made or exercised.\n\n(8) Subject to subsection (7), if the Court of Appeal allows an appeal under subsection (1), it must set aside the verdict and either—\n\n(a) enter a judgment and verdict of acquittal; or\n\n(b) order a new trial.\n\n(9) If the Court of Appeal orders a new trial, it may make any order referred to in section 24(1)(a), (b), (c) or (e) pending the new trial.\n\nS. 24A inserted by No. 7/2002 s. 6.\n\n","sortOrder":46},{"sectionNumber":"24A","sectionType":"section","heading":"Appeal against unconditional release","content":"\t24A Appeal against unconditional release\n\n(1) The Director of Public Prosecutions may appeal to the Court of Appeal against an order for unconditional release under section 23(b) if he or she considers that—\n\nS. 24A(1A) inserted by No. 68/2009 s. 97(Sch. item 39.24).\n\n(1A) An appeal under subsection (1) is commenced by filing a notice of appeal in accordance with the rules of court within 28 days after the day on which the order is made or any extension of that period granted under section 76C.\n\nS. 24A(1B) inserted by No. 68/2009 s. 97(Sch. item 39.24).\n\n(1B) A notice of appeal under subsection (1A) must be signed by the Director of Public Prosecutions personally.\n\nS. 24A(1C) inserted by No. 68/2009 s. 97(Sch. item 39.24).\n\n(1C) A copy of the notice of appeal must be served personally on the respondent in accordance with section 391 of the **Criminal Procedure Act 2009** within 7 days after the day on which the notice of appeal is filed.\n\nS. 24A(1D) inserted by No. 68/2009 s. 97(Sch. item 39.24).\n\n(1D) The Director of Public Prosecutions must provide a copy of the notice of appeal to the legal practitioner who last represented the respondent in the proceeding to which the appeal relates, if that legal practitioner can reasonably be identified.\n\nS. 24A(2)(b) amended by No. 68/2009 s. 97(Sch. item 39.23).\n\n(b) set aside the order and by order declare that the person is liable to supervision under Part 5.\n\nS. 24A(3) amended by No. 68/2009 s. 97(Sch. item 39.23(b)).\n\n(3) If the Court of Appeal declares a person liable to supervision, the Court of Appeal may—\n\n(a) remit the matter, with or without directions, to the court that made the order for unconditional release; or\n\nS. 24A(3)(b) amended by No. 68/2009 s. 97(Sch. item 39.23(b)).\n\n(b) make a supervision order in respect of the person.\n\nS. 24A(4) amended by No. 68/2009 s. 97(Sch. item 39.23(b)).\n\n(4) If the Court of Appeal remits a matter to a court under subsection (3)(a), that court must make a supervision order in respect of the person in accordance with this Act and any directions given by the Court of Appeal.\n\nS. 24A(5) amended by No. 68/2009 s. 97(Sch. item 39.23(b)).\n\n(5) The Court of Appeal may make any order that the court could have made under section 24 pending the making of a supervision order in respect of the person.\n\n","sortOrder":47},{"sectionNumber":"25","sectionType":"section","heading":"Abrogation of defence of insanity","content":"\t25 Abrogation of defence of insanity\n\n(1) The common law defence of insanity is abrogated.\n\n(2) A jury is not entitled in any criminal trial to return a verdict of not guilty on account of insanity.\n\n","sortOrder":48},{"sectionNumber":"Part 5","sectionType":"part","heading":"Disposition of people declared to be liable to supervision","content":"Part 5—Disposition of people declared to be liable to supervision\n\n","sortOrder":49},{"sectionNumber":"26","sectionType":"section","heading":"Supervision orders","content":"\t26 Supervision orders\n\n(1) If a court declares that a person is liable to supervision under this Part, the court must make a supervision order in respect of the person[[4]](#endnote-4).\n\n(2) A supervision order may—\n\n(a) commit the person to custody (***custodial supervision order***)—\n\n(i) subject to subsection (3), in an appropriate place; or\n\n(ii) subject to subsection (4), in a prison; or\n\n(b) release the person on conditions decided by the court and specified in the order (***non‑custodial supervision order***).\n\n(3) The court must not make a supervision order—\n\n(a) committing a person to custody in an appropriate place; or\n\nS. 26(3)(b) substituted by No. 29/2010 s. 19(1), amended by No. 15/2015 s. 37(3)(a).\n\n(b) providing for a person to receive services in an appropriate place or from a disability service provider or the Secretary to the Department of Health and Human Services—\n\nunless it has received a certificate under section 47 stating that the facilities or services necessary for the order are available.\n\n(4) The court must not make a supervision order committing a person to custody in a prison unless it is satisfied that there is no practicable alternative in the circumstances.\n\nS. 26(5)–(7) repealed by No. 7/2002 s. 7(1).\n\nS. 26(8) substituted by No. 29/2010 s. 19(2), amended by Nos 26/2014 s. 437, 15/2015 s. 37(3)(b).\n\n(8) A person who is detained in custody in a designated mental health service under a supervision order is deemed to be in the custody of the Secretary to the Department of Health and Human Services.\n\nS. 26(9) inserted by No. 29/2010 s. 19(2), amended by Nos 15/2015 s. 37(3)(c), 19/2019 s. 241.\n\n(9) A person who is detained in custody in a residential treatment facility under a supervision order is deemed to be in the custody of the Secretary to the Department of Health and Human Services.\n\nNote to s. 26(9) amended by No. 15/2015 s. 38(1).\n\nSection 6A of the **Corrections Act 1986** deems a person in custody in a prison to be in the custody of the Secretary to the Department of Justice andRegulation.\n\n","sortOrder":50},{"sectionNumber":"27","sectionType":"section","heading":"How long does a supervision order last?","content":"\t27 How long does a supervision order last?\n\n(1) A supervision order is for an indefinite term.\n\nS. 27(2) substituted by No. 7/2002 s. 7(2).\n\n(2) When making a supervision order, the court may direct that the matter be brought back to the court for review at the end of the period specified by the court.\n\nThe court's powers on review are contained in section 32 (for custodial supervision orders) and section 33 (for non‑custodial supervision orders).\n\n","sortOrder":51},{"sectionNumber":"28","sectionType":"section","heading":"Nominal term of supervision order","content":"\t28 Nominal term of supervision order\n\n(1) The court must set a nominal term of a supervision order in accordance with the following table—\n\n| *Offence person found not guilty of because of mental impairment or found at special hearing to have committed* | *Nominal term* |\n| (a) murder or treason | 25 years |\n| (b) a serious offence (within the meaning of the **Sentencing Act 1991**) other than—<br> (i) murder; or<br> (ii) an offence against section 20 of the **Crimes Act 1958** (threats to kill) | a period equivalent to the maximum term of imprisonment available for the offence |\n| (c) any other offence for which there is a statutory maximum term of imprisonment | a period equivalent to half the maximum term of imprisonment available for the offence |\n| (d) any other offence punishable by imprisonment but for which there is no statutory maximum term | a period specified by the court |\n\n(2) If a person—\n\n(a) is found not guilty because of mental impairment of more than one offence; or\n\n(b) is found at a special hearing to have committed more than one offence—\n\nthe nominal term must be calculated by reference to the offence that carries the longest maximum term of imprisonment.\n\n(3) For the purpose of subsection (2), the maximum term of imprisonment—\n\n(a) for murder or treason is to be taken to be 25 years;\n\n(b) for any other offence punishable by imprisonment for which there is no statutory maximum term, is a period specified by the court.\n\nS. 28(4) inserted by No. 7/2002 s. 7(3).\n\n(4) In setting a nominal term for a supervision order, the court must declare the day from which the nominal term runs.\n\nS. 28(5) inserted by No. 7/2002 s. 7(3).\n\n(5) For the purpose of declaring a day under subsection (4), the court may take into account any period of time during which the person subject to the order was held in custody or detained in an appropriate place in relation to proceedings for the offence which led to the making of the supervision order or proceedings arising from those proceedings (including proceedings under this Act and appeals).\n\nS. 28A inserted by No. 7/2002 s. 8.\n\n","sortOrder":52},{"sectionNumber":"28A","sectionType":"section","heading":"Appeal against supervision order","content":"\t28A Appeal against supervision order\n\n(1) A person in respect of whom a supervision order is made may appeal to the Court of Appeal against the supervision order.\n\nS. 28A(2) amended by Nos 29/2010 s. 20(1), 43/2012 s. 3(Sch. item 10), 15/2015 s. 37(4)(a).\n\n(2) The Director of Public Prosecutions, the Attorney‑General or the Secretary to the Department of Health and Human Services may appeal to the Court of Appeal against a supervision order if he or she considers that—\n\n(a) a different supervision order should have been made; and\n\nS. 28A(2A) inserted by No. 68/2009 s. 97(Sch. item 39.25).\n\n(2A) An appeal under this section is commenced by filing a notice of appeal in accordance with the rules of court within 28 days after the day on which the order is made or any extension of that period granted under section 76C.\n\nS. 28A(2B) inserted by No. 68/2009 s. 97(Sch. item 39.25).\n\n(2B) If the appeal is commenced by a person in respect of whom a supervision order is made, the Registrar of Criminal Appeals of the Supreme Court must provide to the respondent a copy of the notice of appeal within 7 days after the day on which the notice of appeal is filed.\n\nS. 28A(2C) inserted by No. 68/2009 s. 97(Sch. item 39.25), amended by Nos 29/2010 s. 20(2), 15/2015 s. 37(4)(b).\n\n(2C) If the appeal is commenced by the Secretary to the Department of Health and Human Services, the Director of Public Prosecutions or the Attorney-General—\n\n(b) a copy of the notice of appeal must be served personally on the respondent in accordance with section 391 of the **Criminal Procedure Act 2009** within 7 days after the day on which the notice of appeal is filed; and\n\n(c) that person must provide a copy of the notice of appeal to the legal practitioner who last represented the respondent in the proceeding when the supervision order was made, if that legal practitioner can reasonably be identified.\n\n(3) On an appeal under this section, the Court of Appeal may—\n\nS. 28A(3)(b) amended by No. 68/2009 s. 97(Sch. item 39.26(a)).\n\n(b) set aside the supervision order and make another supervision order in substitution for it; or\n\nS. 28A(3)(c) amended by No. 68/2009 s. 97(Sch. item 39.26(a)).\n\n(c) set aside the supervision order and remit the matter, with or without directions, to the court that made it; or\n\nS. 28A(3)(d) amended by No. 68/2009 s. 97(Sch. item 39.26).\n\n(d) set aside the supervision order and order the person who was subject to the supervision order to be released unconditionally.\n\n(4) If the Court of Appeal remits a matter to a court under subsection (3)(c), that court must make another supervision order in accordance with this Act and any directions given by the Court of Appeal.\n\nS. 28A(5) amended by No. 68/2009 s. 97(Sch. item 39.27(a)).\n\n(5) The Court of Appeal may make any one or more of the following orders pending the making of a supervision order in respect of a person under this section—\n\nS. 28A(5)(a) amended by No. 68/2009 s. 97(Sch. item 39.27(b)).\n\nS. 28A(5)(b) amended by No. 68/2009 s. 97(Sch. item 39.27(b)).\n\n(b) subject to subsection (6), an order remanding the person in custody in an appropriate place;\n\nS. 28A(5)(c) amended by No. 68/2009 s. 97(Sch. item 39.27(b)).\n\n(c) subject to subsection (7), an order remanding the person in custody in a prison;\n\nS. 28A(5)(d)(i) amended by No. 68/2009 s. 97(Sch. item 39.27(b)).\n\n(6) The Court of Appeal must not make an order remanding a person in custody in an appropriate place unless the Court of Appeal has received a certificate under section 47 stating that the facilities or services necessary for that order are available.\n\n(7) The Court of Appeal must not make an order remanding a person in custody in a prison unless satisfied that there is no practicable alternative in the circumstances.\n\n","sortOrder":53},{"sectionNumber":"29","sectionType":"section","heading":"Non-compliance with non-custodial supervision order","content":"\t29 Non-compliance with non-custodial supervision order\n\nS. 29(1) substituted by Nos 7/2002 s. 9(1), 29/2010 s. 21, amended by No. 15/2015 s. 37(5).\n\n(1) A person having the supervision of a person under a non-custodial supervision order (***the supervisor***), the Secretary to the Department of Health and Human Services may apply to the court that made the order for a variation of the order if it appears to the supervisor, the Secretary to the Department of Health and Human Services that the person subject to the order has failed to comply with it.\n\nS. 29(2) repealed by No. 7/2002 s. 9(1).\n\n(3) The court may order that a warrant to arrest be issued against the person subject to the order if he or she does not attend before the court on the hearing of the application.\n\nS. 29(4) amended by No. 6/2018 s. 68(Sch. 2 item 36.1).\n\n(4) If the court is satisfied by evidence on oath or by affirmation or by affidavit, or by the admission of the person subject to the order that the person has failed to comply with the order, the court must, by order—\n\n(c) vary the order to a custodial supervision order.\n\n(5) If the court varies the order to a custodial supervision order before the end of the nominal term, that nominal term continues to run.\n\nS. 29(6) repealed by No. 7/2002 s. 9(2).\n\n","sortOrder":54},{"sectionNumber":"30","sectionType":"section","heading":"Emergency power of apprehension","content":"\t30 Emergency power of apprehension\n\n(1) A person subject to a non-custodial supervision order may be apprehended by an appropriate person if the appropriate person reasonably believes—\n\n(a) that the person subject to the order has failed to comply with it; and\n\n(b) that the safety of the person subject to the order or members of the public will be seriously endangered if the person is not apprehended.\n\n(2) Subject to subsection (4), a person who is apprehended under subsection (1) is to be taken and detained in an appropriate place and treated or provided with services, if necessary, for his or her condition.\n\n(3) For the purpose of apprehending a person and taking them to an appropriate place, the appropriate person may with such assistance as is required and such force as may be reasonably necessary—\n\n(a) enter any premises in which he or she has reasonable grounds for believing that the person to be apprehended may be found; and\n\n(b) if necessary to enable that person to be so apprehended and taken safely, use such restraint as may be reasonably necessary.\n\n(4) A person who is apprehended under this section must be released from detention within 48 hours unless, within that period, an application is made under section 29(1) for variation of the person's supervision order.\n\n(5) The court must hear an application referred to in subsection (4) as soon as possible.\n\n(6) In this section—\n\nS. 30(6) def. of *appropriate person* amended by No. 37/2014 s. 10(Sch. item 39.2).\n\n***appropriate person***, in relation to a person subject to a supervision order, means—\n\n(a) a person having supervision of the person under the order; or\n\n(b) a police officer; or\n\n(c) an ambulance officer; or\n\n(d) a person who is a member of a class prescribed for the purposes of this section.\n\nS. 30A inserted by No. 7/2002 s. 10.\n\n","sortOrder":55},{"sectionNumber":"30A","sectionType":"section","heading":"Warrant to arrest person breaching non-custodial supervision order who leaves Victoria","content":"\t30A Warrant to arrest person breaching non-custodial supervision order who leaves Victoria\n\nS. 30A(1) substituted by No. 29/2010 s. 22, amended by No. 15/2015 s. 37(5).\n\n(1) If at any time it appears to a person having supervision of a person under a non-custodial supervision order, the Secretary to the Department of Health and Human Services that the person subject to the order—\n\n(a) has failed to comply with the order; and\n\nthe person having supervision, the Secretary to the Department of Health and Human Services may apply to the Supreme Court, County Court or Magistrates' Court for a warrant to arrest the person subject to the order.\n\nS. 30A(2) amended by No. 6/2018 s. 68(Sch. 2 item 36.1).\n\n(2) If the court to which the application is made is satisfied by evidence on oath or by affirmation or by affidavit, of the matters specified in paragraphs (a) and (b) of subsection (1), the court may order that a warrant to arrest be issued against the person subject to the order.\n\n(3) When a person arrested under a warrant issued under this section is returned to Victoria, he or she is to be taken to and detained in an appropriate place and treated or provided with services, if necessary, for his or her condition.\n\n(4) However, the person must be released from detention within 48 hours unless, within that period, an application is made under section 29(1) for variation of the person's supervision order.\n\n(5) The court to which an application referred to in subsection (4) is made must hear it as soon as possible.\n\nS. 30B inserted by No. 7/2002 s. 10.\n\n","sortOrder":56},{"sectionNumber":"30B","sectionType":"section","heading":"Warrant to arrest person subject to custodial supervision order who leaves Victoria","content":"\t30B Warrant to arrest person subject to custodial supervision order who leaves Victoria\n\nS. 30B(1) substituted by No. 29/2010 s. 23(1), amended by No. 15/2015 s. 37(6)(a).\n\n(1) If at any time it appears to a person having the supervision of a forensic patient under a custodial supervision order or to the Secretary to the Department of Health and Human Services that the forensic patient subject to the custodial supervision order—\n\nS. 30B(1)(a) amended by No. 26/2014 s. 438(1).\n\n(a) is absent without leave from a designated mental health service; and\n\nthe person having supervision or the Secretary to the Department of Health and Human Services may apply to the Supreme Court, County Court or Magistrates' Court for a warrant to arrest the patient.\n\nS. 30B(1A) inserted by No. 44/2004 s. 7(1), substituted by No. 29/2010 s. 23(2), amended by No. 15/2015 s. 37(6)(a).\n\n(1A) If at any time it appears to the Secretary to the Department of Health and Human Services that a federal forensic patient—\n\nS. 30B(1A)(a) amended by No. 26/2014 s. 438(1).\n\n(a) is absent without leave from a designated mental health service; and\n\nthe Secretary to the Department of Health and Human Services may apply to the Supreme Court, County Court or Magistrates' Court for a warrant to arrest that patient.\n\nS. 30B(1B) inserted by No. 29/2010 s. 23(2), amended by No. 15/2015 s. 37(6)(b).\n\n(1B) If at any time it appears to the Secretary to the Department of Health and Human Services that a forensic resident subject to a custodial supervision order—\n\nS. 30B(1B)(a) amended by No. 19/2019 s. 242(1).\n\n(a) is absent without leave from a residential treatment facility; and\n\nthe Secretary to the Department of Health and Human Services may apply to the Supreme Court, County Court or Magistrates' Court for a warrant to arrest that resident.\n\nS. 30B(2) amended by Nos 44/2004 s. 7(2), 6/2018 s. 68(Sch. 2 item 36.1).\n\n(2) If the court to which the application is made is satisfied by evidence on oath or by affirmation or by affidavit, of the matters specified in paragraphs (a) and (b) of subsection (1) or (1A), the court may order that a warrant to arrest be issued against the person subject to the order.\n\nS. 30B(3) amended by Nos 29/2010 s. 23(3), 26/2014 s. 438(2), 19/2019 s. 242(2).\n\n(3) When a person arrested under a warrant issued under this section is returned to Victoria, he or she is to be returned to the designated mental health service or residential treatment facility from which he or she was absent without leave.\n\n","sortOrder":57},{"sectionNumber":"31","sectionType":"section","heading":"Application for variation or revocation of supervision order","content":"\t31 Application for variation or revocation of supervision order\n\n(1) Any of the following may apply to the court that made a supervision order for a variation of the order (in the case of a custodial supervision order) or a variation or revocation of the order (in the case of a non-custodial supervision order)—\n\n(a) the person subject to the order;\n\n(b) a person having the custody, care, control or supervision of that person;\n\n(c) the Director of Public Prosecutions;\n\nS. 31(1)(d) inserted by No. 7/2002 s. 11(a).\n\n(d) the Attorney-General.\n\n(2) If the court refuses an application under this section by a person who is subject to a custodial supervision order, a later application cannot be made by that person for 3 years or such lesser period as the court directs.\n\nS. 31(3)–(5) repealed by No. 7/2002 s. 11(b).\n\n","sortOrder":58},{"sectionNumber":"32","sectionType":"section","heading":"Variation of custodial supervision orders","content":"\t32 Variation of custodial supervision orders\n\nS. 32(1) amended by No. 7/2002 s. 12(1).\n\n(1) On an application under section 31 for variation of a custodial supervision order or on a review of a custodial supervision order directed under section 27(2) or on a further review of a custodial supervision order directed under subsection (5) or section 33(2), the court must, by order—\n\n(b) vary the place of custody; or\n\n(c) subject to this section, vary the order to a non-custodial supervision order.\n\n(2) The court must not vary a custodial supervision order to a non-custodial supervision order during the nominal term unless satisfied on the evidence available that the safety of the person subject to the order or members of the public will not be seriously endangered as a result of the release of the person on a non-custodial supervision order.\n\n(3) In the case of a forensic patient or forensic resident—\n\n(a) the court must not vary a custodial supervision order to a non-custodial supervision order (whether during or after the nominal term) unless the forensic patient or forensic resident has completed a period of at least 12 months extended leave granted by the court under section 57; and\n\n(b) in deciding an application to vary a custodial supervision order to a non-custodial supervision order, the court must take into account whether or not the forensic patient or forensic resident has complied with any conditions of their extended leave.\n\n(4) If the court varies a custodial supervision order to a non-custodial supervision order before the end of the nominal term, that nominal term continues to run.\n\nS. 32(5) substituted by No. 7/2002 s. 12(2), amended by No. 20/2015 s. 33.\n\n(5) The court may direct that the matter be brought back to the court for further review at the end of the period specified by the court.\n\nS. 32(6) inserted by No. 7/2002 s. 12(2).\n\n(6) A direction may be given under subsection (5) more than once.\n\nS. 33 amended by No. 7/2002 s. 12(3)(4) (ILA s. 39B(1)).\n\n","sortOrder":59},{"sectionNumber":"33","sectionType":"section","heading":"Variation or revocation of non-custodial supervision orders","content":"\t33 Variation or revocation of non-custodial supervision orders\n\n(1) On an application under section 31 for variation or revocation of a non-custodial supervision order or on a review of a non-custodial supervision order directed under section 27(2) or on a further review of a non-custodial supervision order directed under subsection (2) or section 32(5), the court must, by order—\n\n(c) vary the order to a custodial supervision order; or\n\n(d) revoke the order.\n\nS. 33(2) inserted by No. 7/2002 s. 12(4).\n\n(2) Unless the court revokes the order, the court may direct that the matter be brought back to the court for further review at the end of the period specified by the court.\n\nS. 33(3) inserted by No. 7/2002 s. 12(4).\n\n(3) A direction may be given under subsection (2) more than once.\n\nS. 34 substituted by No. 7/2002 s. 13.\n\n","sortOrder":60},{"sectionNumber":"34","sectionType":"section","heading":"Appeal against confirmation or variation of supervision orders","content":"\t34 Appeal against confirmation or variation of supervision orders\n\n(1) A person who is subject to a supervision order may appeal to the Court of Appeal against an order confirming or varying the supervision order.\n\nS. 34(2) amended by Nos 29/2010 s. 24(1), 15/2015 s. 37(7)(a).\n\n(2) The Secretary to the Department of Health and Human Services may appeal to the Court of Appeal against an order confirming or varying a supervision order if he or she considers that—\n\n(a) the supervision order should not have been confirmed or varied; and\n\n(3) The Director of Public Prosecutions or the Attorney-General may appeal to the Court of Appeal against an order confirming or varying a supervision order if he or she—\n\n(a) was a party to the proceeding in which the order confirming or varying the supervision order was made; and\n\n(b) considers that the supervision order should not have been confirmed or varied; and\n\nS. 34(3A) inserted by No. 68/2009 s. 97(Sch. item 39.28).\n\n(3A) An appeal under this section is commenced by filing a notice of appeal in accordance with the rules of court within 28 days after the day on which the order confirming or varying the supervision order is made or any extension of that period granted under section 76C.\n\nS. 34(3B) inserted by No. 68/2009 s. 97(Sch. item 39.28).\n\n(3B) If the appeal is commenced by a person who is subject to a supervision order, the Registrar of Criminal Appeals of the Supreme Court must provide to the respondent a copy of the notice of appeal within 7 days after the day on which the notice of appeal is filed.\n\nS. 34(3C) inserted by No. 68/2009 s. 97(Sch. item 39.28), amended by Nos 29/2010 s. 24(2), 15/2015 s. 37(7)(b).\n\n(3C) If the appeal is commenced by the Secretary to the Department of Health and Human Services, the Director of Public Prosecutions or the Attorney-General—\n\n(b) a copy of the notice of appeal must be served personally on the respondent in accordance with section 391 of the **Criminal Procedure Act 2009** within 7 days after the day on which the notice of appeal is filed; and\n\n(c) that person must provide a copy of the notice of appeal to the legal practitioner who last represented the respondent in the proceeding when the supervision order was made, if that legal practitioner can reasonably be identified.\n\n(4) On an appeal against a confirmation of a supervision order, the Court of Appeal may—\n\nS. 34(4)(b) amended by No. 68/2009 s. 97(Sch. item 39.29).\n\n(b) set aside the supervision order and make any order that the court could have made under section 29, 32, 33 or 35 (as the case requires); or\n\nS. 34(4)(c) amended by No. 68/2009 s. 97(Sch. item 39.29).\n\n(c) set aside the supervision order and remit the matter, with or without directions, to the court that made it.\n\n(5) On an appeal against a variation of a supervision order, the Court of Appeal may—\n\n(a) confirm the order for variation; or\n\nS. 34(5)(b) amended by No. 68/2009 s. 97(Sch. item 39.29).\n\n(b) set aside the order for variation and make any order that the court could have made under section 29, 32, 33 or 35 (as the case requires); or\n\nS. 34(5)(c) amended by No. 68/2009 s. 97(Sch. item 39.29).\n\n(c) set aside the order for variation and remit the matter, with or without directions, to the court that made it.\n\n(6) If the Court of Appeal remits a matter to a court under subsection (4)(c) or (5)(c), that court must hear and determine the matter in accordance with this Act and any directions given by the Court of Appeal.\n\nS. 34(7) amended by No. 68/2009 s. 97(Sch. item 39.30).\n\n(7) If the Court of Appeal sets aside a supervision order in respect of a person under this section, the Court of Appeal may make any order that it could make under section 28A(5) pending the making of another supervision order in respect of the person.\n\nS. 34A inserted by No. 7/2002 s. 13.\n\n","sortOrder":61},{"sectionNumber":"34A","sectionType":"section","heading":"Appeal against revocation of non-custodial supervision orders","content":"\t34A Appeal against revocation of non-custodial supervision orders\n\nS. 34A(1) amended by Nos 29/2010 s. 25(1), 15/2015 s. 37(8)(a).\n\n(1) The Secretary to the Department of Health and Human Services may appeal to the Court of Appeal against the revocation of a non-custodial supervision order if he or she considers that—\n\n(a) the supervision order should not have been revoked; and\n\n(2) The Director of Public Prosecutions or the Attorney-General may appeal to the Court of Appeal against the revocation of a non-custodial supervision order if he or she—\n\n(a) was a party to the proceeding in which the order for revocation was made; and\n\n(b) considers that the supervision order should not have been revoked; and\n\nS. 34A(2A) inserted by No. 68/2009 s. 97(Sch. item 39.31).\n\n(2A) An appeal under this section is commenced by filing a notice of appeal in accordance with the rules of court within 28 days after the day on which the order is revoked or any extension of that period granted under section 76C.\n\nS. 34A(2B) inserted by No. 68/2009 s. 97(Sch. item 39.31), amended by Nos 29/2010 s. 25(2), 15/2015 s. 37(8)(b).\n\n(2B) A notice of appeal under subsection (2A) must be signed personally by the Secretary to the Department of Health and Human Services, the Director of Public Prosecutions or the Attorney‑General, as the case requires.\n\nS. 34A(2C) inserted by No. 68/2009 s. 97(Sch. item 39.31).\n\n(2C) A copy of the notice of appeal must be served personally on the respondent in accordance with section 391 of the **Criminal Procedure Act 2009** within 7 days after the day on which the notice of appeal is filed.\n\nS. 34A(2D) inserted by No. 68/2009 s. 97(Sch. item 39.31).\n\n(2D) The person commencing the appeal must provide a copy of the notice of appeal to the legal practitioner who last represented the respondent in the proceeding when the supervision order was revoked, if that legal practitioner can reasonably be identified.\n\n(3) On an appeal under this section, the Court of Appeal may—\n\n(a) confirm the order revoking the supervision order; or\n\nS. 34A(3)(b) amended by No. 68/2009 s. 97(Sch. item 39.32).\n\n(b) set aside the order revoking the supervision order and, by order—\n\n(i) confirm the supervision order; or\n\n(ii) vary the conditions of the supervision order; or\n\n(iii) vary the supervision order to a custodial supervision order; or\n\nS. 34A(3)(c) amended by No. 68/2009 s. 97(Sch. item 39.33).\n\n(c) set aside the order revoking the supervision order and remit the matter, with or without directions, to the court that made it.\n\n(4) If the Court of Appeal remits a matter to a court under subsection (3)(c), that court must hear and determine the matter in accordance with this Act and any directions given by the Court of Appeal.\n\n","sortOrder":62},{"sectionNumber":"35","sectionType":"section","heading":"Major reviews","content":"\t35 Major reviews\n\nS. 35(1) substituted by No. 7/2002 s. 14(1).\n\n(1) The court that made a supervision order must undertake a major review of the order—\n\n(a) at least 3 months before the end of the nominal term of the order; and\n\n(b) thereafter at intervals not exceeding 5 years for the duration of the order.\n\n(2) The purpose of a major review is to determine whether the person subject to the order is able to be released from it.\n\n(3) On a major review, the court—\n\n(a) if the supervision order is a custodial supervision order—\n\n(i) must vary the order to a non-custodial supervision order, unless satisfied on the evidence available that the safety of the person subject to the order or members of the public will be seriously endangered as a result of the release of the person on a non-custodial supervision order; or\n\n(ii) if so satisfied, must confirm the order or vary the place of custody;\n\n(b) if the supervision order is a non-custodial supervision order—\n\n(i) may confirm the order; or\n\n(ii) may vary the conditions of the order; or\n\n(iii) may revoke the order.\n\nS. 35(4) inserted by No. 7/2002 s. 14(2).\n\n(4) If the court confirms a custodial supervision order on a major review, the court may grant extended leave to the person subject to the order, without the need for a separate application for leave, if the court could have granted extended leave to the person on an application under section 57.\n\nS. 36 (Heading) inserted by No. 68/2009 s. 97(Sch. item 39.34).\n\n","sortOrder":63},{"sectionNumber":"36","sectionType":"section","heading":"Person subject to supervision order has right to appear","content":"\t36 Person subject to supervision order has right to appear\n\nS. 36(1) substituted by No. 7/2002 s. 15(1).\n\n(1) Unless subsection (4) applies, a person has the right to appear before the court in person at any hearing in which the court is considering—\n\n(a) making, varying or revoking a supervision order in respect of the person; or\n\n(b) granting extended leave to the person; or\n\n(c) revoking a grant of extended leave to the person.\n\n(2) If the person decides not to appear before the court, the court must satisfy itself that they have been informed of their right to appear.\n\n(3) The person may be legally represented at any hearing referred to in subsection (1).\n\nS. 36(4) amended by No. 68/2009 s. 97(Sch. item 39.35).\n\n(4) If the court is satisfied that the attendance of the person before the court would be detrimental to the person's health, the court may order that the person not attend the hearing.\n\n(5) If the person is in custody, the court may order the person in charge of the place in which they are in custody to cause them to be brought before the court for the purposes of the hearing.\n\nS. 36(6) amended by No. 68/2009 s. 97(Sch. item 39.36).\n\n(6) Section 197 of the **Criminal Procedure Act 2009** (Order for legal representation for accused) applies to a hearing referred to in subsection (1) as if the hearing were a criminal trial.\n\nS. 36(7) amended by No. 69/2009 s. 54(Sch. Pt 2 item 17).\n\n(7) Nothing in Part IIA of the **Evidence (Miscellaneous Provisions) Act 1958** applies to a hearing referred to in subsection (1).\n\n","sortOrder":64},{"sectionNumber":"37","sectionType":"section","heading":"Other parties may appear","content":"\t37 Other parties may appear\n\n(1) At any hearing referred to in section 36(1)—\n\nS. 37(1)(a) substituted by No. 7/2002 s. 15(2).\n\n(a) the Attorney-General and the Director of Public Prosecutions are entitled to appear before the court; and\n\n(b) the court may allow any other person having a substantial interest in the matter to appear in person and, if the court gives leave, to be legally represented.\n\nS. 37(1A) inserted by No. 7/2002 s. 15(3).\n\n(1A) The person having the custody, care, control or supervision of a person who is subject to a supervision order is entitled to appear before the court at any hearing in which the court is considering—\n\n(a) varying or revoking the supervision order; or\n\n(b) granting extended leave to the person subject to the order; or\n\n(c) revoking a grant of extended leave to the person.\n\n(2) A person who is entitled or allowed to appear in a matter is a party to that matter.\n\nS. 38 substituted by No. 7/2002 s. 16, amended by No. 69/2009 s. 54(Sch. Pt 1 item 13.2) (ILA s. 39B(1)).\n\n","sortOrder":65},{"sectionNumber":"38","sectionType":"section","heading":"Rules of evidence not to apply in certain hearings","content":"\t38 Rules of evidence not to apply in certain hearings\n\n(1) The court is not bound by rules or practice as to evidence but may inform itself in relation to any matter in such manner as it thinks fit in the hearing of—\n\n(a) a major review;\n\n(b) a review directed under section 27(2), 32(5) or 33(2);\n\n(c) an application for variation or revocation of a supervision order;\n\n(d) an application for extended leave or for revocation of extended leave;\n\n(e) an application for an order under section 38C(8);\n\n(f) an application under section 38D(1).\n\nS. 38(2) inserted by No. 69/2009 s. 54(Sch. Pt 1 item 13.2).\n\n(2) Nothing in subsection (1) prevents the application of Part 3.10 of the **Evidence Act 2008** to a hearing, and for the purposes of the application of Part 3.10 the investigation is taken to be a criminal proceeding.\n\nS. 38A inserted by No. 7/2002 s. 17.\n\n","sortOrder":66},{"sectionNumber":"38A","sectionType":"section","heading":"Notice of hearings to persons subject to supervision orders","content":"\t38A Notice of hearings to persons subject to supervision orders\n\n(1) Notice of any court hearing under this Act in relation to a person who is subject to a supervision order must be given to the person (unless the person is the applicant)—\n\n(a) in the case of a major review or a review directed by a court under section 27(2), 32(5) or 33(2)—as directed by the court; or\n\n(b) in any other case—by the applicant.\n\n(2) The notice must be given at least 14 days (or such lesser period as the court directs) before the day of the hearing.\n\n(3) Subsection (1) does not require notice to be given of the hearing of an application for a warrant under section 30A or 30B.\n\nS. 38B (Heading) amended by Nos 29/2010 s. 26(1), 15/2015 s. 37(9).\n\nS. 38B inserted by No. 7/2002 s. 17.\n\n","sortOrder":67},{"sectionNumber":"38B","sectionType":"section","heading":"Notice of hearings to DPP, Attorney-General and Secretary to Department of Health and Human Services","content":"\t38B Notice of hearings to DPP, Attorney-General and Secretary to Department of Health and Human Services\n\n(1) Notice of any court hearing under this Act in relation to a person who is subject to a supervision order must be given to—\n\n(a) the Director of Public Prosecutions; and\n\n(b) the Attorney-General; and\n\nS. 38B(1)(c) substituted by No. 29/2010 s. 26(2), amended by No. 15/2015 s. 37(10).\n\n(c) the Secretary to the Department of Health and Human Services; and\n\n(d) the person having the custody, care, control or supervision of the person subject to the supervision order.\n\n(2) The notice must be given—\n\n(a) in the case of a major review or a review directed by a court under section 27(2), 32(5) or 33(2)—as directed by the court; or\n\n(b) in any other case—by the applicant.\n\n(3) The notice must be given at least 14 days (or such lesser period as the court directs) before the day of the hearing.\n\n(4) This section does not apply so as to require an applicant to give notice to themselves.\n\nS. 38C inserted by No. 7/2002 s. 17.\n\n","sortOrder":68},{"sectionNumber":"38C","sectionType":"section","heading":"Notice of hearings to family members and victims","content":"\t38C Notice of hearings to family members and victims\n\n(1) The Director of Public Prosecutions must give notice of any court hearing referred to in subsection (2) in relation to a person who is subject to a supervision order to—\n\n(a) each family member of the person; and\n\n(b) each victim of the offence with which the person was charged.\n\n(2) The hearings of which notice is required to be given under this section are hearings of—\n\n(a) a major review;\n\n(b) a review directed under section 27(2), 32(5) or 33(2);\n\n(c) an application under section 31 for variation or revocation of a supervision order;\n\n(d) an application for extended leave, if the granting of the application would significantly reduce the degree of supervision to which the person is subject.\n\n(3) The notice must be given at least 14 days (or such lesser period as the court directs) before the day of the hearing.\n\n(4) Notice to a family member or victim who is under the age of 18 years is to be given to—\n\n(a) a parent or guardian of the person; or\n\n(b) if the court makes an order under section 38D, the person named in the order.\n\n(5) Notice is not to be given to a family member or victim who has given notice to the Director of Public Prosecutions that he or she does not wish to be notified of any hearing in relation to the person who is subject to the supervision order, and has not withdrawn that notice.\n\n(6) Notice to the Director of Public Prosecutions under subsection (5) may be given on behalf of a family member or victim who is under the age of 18 years by—\n\n(a) a parent or guardian; or\n\n(b) if the court makes an order under section 38D, the person named in the order.\n\n(7) Notice of a hearing need not be given to a person—\n\n(a) whose whereabouts have not, after reasonable enquiry, been ascertained; or\n\n(b) if an order is made under subsection (8) or (10).\n\nS. 38C(8) amended by Nos 29/2010 s. 27, 15/2015 s. 37(11).\n\n(8) On application by the Director of Public Prosecutions, the Attorney-General or the Secretary to the Department of Health and Human Services, the court may order that notice of a particular hearing need not be given to a family member or victim if the court is satisfied that giving such notice to them would be detrimental to their mental or physical health.\n\n(9) If the court makes an order under subsection (8), it may order that notice of the hearing be given to another person on their behalf.\n\n(10) If the court adjourns a hearing, the court may order that notice of the resumption of the hearing is not required to be given to a family member or victim.\n\n(11) If a person is both a family member and a victim, notice may be given to them in either of those capacities.\n\nS. 38D inserted by No. 7/2002 s. 17.\n\n","sortOrder":69},{"sectionNumber":"38D","sectionType":"section","heading":"Appointment of person to receive notice on behalf of child","content":"\t38D Appointment of person to receive notice on behalf of child\n\n(1) The Director of Public Prosecutions may apply to the court for an order that notice under section 38C to a family member or victim under the age of 18 years be given to a person other than a parent or guardian if—\n\n(a) the Director of Public Prosecutions considers that the parents or guardians may not be acting in the best interests of the family member or victim; or\n\n(b) the only parents or guardians are persons who are liable to supervision or subject to a supervision order; or\n\n(c) there are no parents or guardians or their identity or whereabouts cannot, after reasonable enquiry, be ascertained.\n\n(2) On an application under subsection (1), the court may order that notice under section 38C be given to a person named in the order on behalf of the family member or victim instead of to the parent or guardian.\n\nS. 38E inserted by No. 7/2002 s. 17.\n\n","sortOrder":70},{"sectionNumber":"38E","sectionType":"section","heading":"Provision of information to family members and victims","content":"\t38E Provision of information to family members and victims\n\n(1) As soon as practicable after becoming aware that a hearing referred to in section 38C(2) is to be held in relation to a person who is subject to a supervision order, a person having the supervision of the person must give the following information to the Director of Public Prosecutions—\n\n(a) whether the supervision order is a custodial supervision order or a non-custodial supervision order; and\n\n(b) if it is a custodial supervision order, whether or not the person is on extended leave; and\n\n(c) if the person is on extended leave or is subject to a non-custodial supervision order, the person's current level of supervision.\n\n(2) The Director of Public Prosecutions must give the information to each family member and victim of the offence with which the person subject to the supervision order was charged, unless section 38C provides that notice of the hearing is not to be given, or need not be given, to the family member or victim.\n\n(3) If a family member or victim is under the age of 18 years, the information must be given to a parent or guardian or a person appointed under section 38D on behalf of the family member or victim.\n\n(4) The information must be given to a family member or victim a reasonable time before the hearing.\n\nS. 38F inserted by No. 7/2002 s. 17.\n\n","sortOrder":71},{"sectionNumber":"38F","sectionType":"section","heading":"List of family members","content":"\t38F List of family members\n\n(1) A person who is subject to a supervision order must give to the Director of Public Prosecutions a list of the person's family members, containing their names and, if known, their addresses.\n\n(2) The list may be given to the Director of Public Prosecutions at any time after the supervision order is made, but must be given—\n\n(a) on or before the making by the person subject to the order of an application referred to in section 38C(2)(c) or (d); or\n\n(b) not later than 14 days after the person subject to the order receives notice of a hearing referred to in section 38C(2)(a) or (b) or of an application referred to in section 38C(2)(c) or (d) made by another person—\n\nwhichever first occurs.\n\n(3) Nothing in this section requires a list to be given more than once during the life of a supervision order.\n\nPt 5A (Heading  \nand ss 38G–38ZW) inserted by No. 55/2014 s. 125 (as amended by No. 79/2014 s. 48).\n\n","sortOrder":72},{"sectionNumber":"Part 5A","sectionType":"part","heading":"Proceedings in the Children's","content":"Part 5A—Proceedings in the Children's  \nCourt and appeals from those proceedings\n\nDivision 1—General\n\nS. 38G inserted by No. 55/2014 s. 125 (as amended by No. 79/2014 s. 48).\n\n","sortOrder":73},{"sectionNumber":"38G","sectionType":"section","heading":"Application of Part","content":"\t38G Application of Part\n\n(1) This Part applies to—\n\n(a) indictable offences heard and determined summarily by the Children's Court; and\n\n(b) committal proceedings in the Children's Court; and\n\n(c) appeals from—\n\n(i) a finding by the Children's Court that a child is unfit to stand trial; and\n\n(ii) a finding by the Children's Court that a child is not guilty of an indictable offence because of mental impairment; and\n\n(iii) the making of a supervision order by the Children's Court; and\n\n(d) appeals by the Director of Public Prosecutions against an order by the Children's Court for unconditional release of a child found not guilty because of mental impairment of an indictable offence.\n\n(2) Division 4 and this Division apply to—\n\n(a) summary offences heard and determined by the Children's Court; and\n\n(b) appeals from a finding by the Children's Court that a child is not guilty of a summary offence because of mental impairment.\n\n(3) Parts 6 (other than sections 39, 40(1) and 47), 7, 7A and 7B do not apply to an order under this Part.\n\nS. 38H inserted by No. 55/2014 s. 125 (as amended by No. 79/2014 s. 48).\n\n","sortOrder":74},{"sectionNumber":"38H","sectionType":"section","heading":"Definitions","content":"\t38H Definitions\n\nS. 38H def. of *Chief Commis-sioner of Police* substituted by No. 55/2014 s. 155(1).\n\n***Chief Commissioner of Police*** means the Chief Commissioner of Police appointed under section 17 of the **Victoria Police Act 2013**;\n\n***Children's Court*** means the Children's Court constituted in accordance with section 38I;\n\n***custodial supervision order*** means a supervision order referred to in section 38ZH(5)(a);\n\n***custody*** means detention in a youth justice centre or a youth residential centre;\n\n***investigation*** means investigation under Division 2;\n\n***magistrate*** has the same meaning as in the **Children, Youth and Families Act 2005**;\n\n***non-custodial supervision order*** means a supervision order referred to in section 38ZH(5)(b);\n\n***President*** has the same meaning as in the **Children, Youth and Families Act 2005**;\n\n***return date***, in relation to a proceeding in a court, means any date on which the proceeding is listed before the court;\n\n***special hearing*** means a hearing under Division 3;\n\n***supervision order*** means an order made under section 38ZH.\n\nS. 38I  \n\n","sortOrder":75},{"sectionNumber":"38I","sectionType":"section","heading":"Constitution of Children's Court","content":"\t38I Constitution of Children's Court\n\n(1) If the question of the fitness of a child to stand trial arises or the defence of mental impairment is raised in a proceeding in the Children's Court—\n\n(a) if the offence is punishable by level 2 imprisonment (25 years maximum), the Children's Court must be constituted by the President or, if the President is unavailable, a magistrate nominated by the President; or\n\n(b) in any other case, the Children's Court must be constituted by the President or a magistrate.\n\n(2) Section 504(8) of the **Children, Youth and Families Act 2005** does not apply to a proceeding referred to in subsection (1).\n\nS. 38J  \n\n","sortOrder":76},{"sectionNumber":"38J","sectionType":"section","heading":"Remand in custody","content":"\t38J Remand in custody\n\n(1) The Children's Court or an appellate court must not remand a child in custody unless it is satisfied that there is no practicable alternative in the circumstances.\n\n(2) The Children's Court or an appellate court must not make an order remanding a child in custody unless it has received a certificate under section 47 stating that the facilities or services necessary for that order are available.\n\nDivision 2—Unfitness to stand trial\n\nS. 38K  \n\n","sortOrder":77},{"sectionNumber":"38K","sectionType":"section","heading":"When is a child unfit to stand trial?","content":"\t38K When is a child unfit to stand trial?\n\n(1) A child is unfit to stand trial for an indictable offence if, because the child's mental processes are disordered or impaired, the child is or, at some time during the hearing in the Children's Court, will be—\n\n(a) unable to understand the nature of the charge; or\n\n(b) unable to enter a plea to the charge; or\n\n(c) unable to understand the nature of the hearing (namely that it is an inquiry as to whether the child committed the offence); or\n\n(d) unable to follow the course of the hearing; or\n\n(e) unable to understand the substantial effect of any evidence that may be given in support of the prosecution; or\n\n(f) unable to give instructions to his or her legal practitioner.\n\n(2) A child is not unfit to stand trial only because he or she is suffering from memory loss.\n\nS. 38L  \n\n","sortOrder":78},{"sectionNumber":"38L","sectionType":"section","heading":"Presumptions, standard of proof etc.","content":"\t38L Presumptions, standard of proof etc.\n\n(1) A child is presumed to be fit to stand trial.\n\n(2) The presumption is rebutted only if it is established, on an investigation under this Division, that the child is unfit to stand trial.\n\n(3) The question of a child's fitness to stand trial—\n\n(b) is to be determined on the balance of probabilities.\n\n(4) If the question of a child's fitness to stand trial is raised by the prosecution or the defence, the party raising it bears the onus of rebutting the presumption of fitness.\n\n(5) If the question is raised by the Children's Court, the prosecution has carriage of the matter, but no party bears any onus of proof in relation to it.\n\n(6) If the defence intends to raise the question of a child's fitness to stand trial, the defence must give reasonable notice of that intention to the prosecution.\n\nS. 38M  \n\n","sortOrder":79},{"sectionNumber":"38M","sectionType":"section","heading":"Committals","content":"\t38M Committals\n\n(1) If the question of the fitness of a child to stand trial arises in a committal proceeding for an indictable offence—\n\n(a) the committal proceeding must be completed in accordance with Chapter 4 of the **Criminal Procedure Act 2009**; and\n\nS. 38M(1)(b) repealed by No. 5/2025 s. 53.\n\n(c) if the child is committed for trial, the question must be reserved for consideration by the trial judge.\n\n(2) If a child is committed for trial and the question of his or her fitness to stand trial has been reserved under subsection (1)(c)—\n\n(a) an indictment must be filed in respect of the offence; and\n\n(b) the issue of whether there is a real and substantial question as to the fitness of the child to stand trial must be determined by the trial judge; and\n\n(c) if the trial judge determines that there is a real and substantial question, an investigation must be held under Part 2.\n\nS. 38N  \n\n","sortOrder":80},{"sectionNumber":"38N","sectionType":"section","heading":"Reservation of question of fitness to stand trial by Children's Court","content":"\t38N Reservation of question of fitness to stand trial by Children's Court\n\n(1) At any time after a charge-sheet has been filed against a child, if it appears to the Children's Court that there is a real and substantial question as to the fitness of the child to stand trial, the court must reserve for investigation under this Division the question of the fitness of the child to stand trial.\n\n(2) At any time during a hearing in the Children's Court, if it appears to the court that there is a real and substantial question as to the fitness of the child to stand trial, the court must adjourn or discontinue the hearing and proceed with an investigation under this Division.\n\n(3) Nothing in this Act prevents the question of the fitness of a child to stand trial from being raised more than once in the same proceeding.\n\nSee section 38L(6) for the requirement that reasonable notice be given to the prosecution if the defence intends to raise the question of fitness to stand trial.\n\nS. 38O  \n\n","sortOrder":81},{"sectionNumber":"38O","sectionType":"section","heading":"Time limit for investigation into fitness","content":"\t38O Time limit for investigation into fitness\n\nAn investigation into the fitness of a child to stand trial must be completed as soon as possible after the question is reserved under section 38N and in any event within 3 months.\n\nS. 38P  \n\n","sortOrder":82},{"sectionNumber":"38P","sectionType":"section","heading":"Children's Court may make orders pending investigation into fitness","content":"\t38P Children's Court may make orders pending investigation into fitness\n\nIf the Children's Court reserves for investigation the question of the fitness of a child to stand trial, it may make any one or more of the following orders—\n\n(c) if it is of the opinion that it is in the interests of justice to do so, an order—\n\n(i) that the child undergo an examination by a registered medical practitioner or registered psychologist; and\n\n(d) any other order the court thinks appropriate.\n\nS. 38Q  \n\n","sortOrder":83},{"sectionNumber":"38Q","sectionType":"section","heading":"Procedure on investigation","content":"\t38Q Procedure on investigation\n\n(1) On an investigation into the fitness of a child to stand trial—\n\n(a) the Children's Court must hear any relevant evidence and submissions put to the court by the prosecution or the defence; and\n\n(b) if it is of the opinion that it is in the interests of justice to do so, the Children's Court may—\n\n(i) call evidence on its own initiative; and\n\n(ii) require the child to undergo an examination by a registered medical practitioner or registered psychologist; and\n\n(2) Nothing in subsection (1) prevents the application of Part 3.10 of the **Evidence Act 2008** to an investigation, and for the purposes of the application of Part 3.10 the investigation is taken to be a criminal proceeding.\n\n(3) If the Children's Court finds that the child is unfit to stand trial, the court must—\n\n(a) determine, by reference to any relevant evidence and on the balance of probabilities, whether or not the child is likely to become fit to stand trial within the next 6 months; and\n\n(b) if the court determines that the child is likely to become fit within the next 6 months, specify the period by the end of which the child is likely to be fit to stand trial.\n\n(4) For the purposes of subsection (3) the Children's Court may call further evidence on its own initiative.\n\nS. 38R  \n\n","sortOrder":84},{"sectionNumber":"38R","sectionType":"section","heading":"What happens after an investigation?","content":"\t38R What happens after an investigation?\n\n(1) If the Children's Court finds that a child is fit to stand trial, the hearing must be commenced or  resumed in accordance with usual criminal procedures as soon as possible and in any event within 3 months.\n\n(2) If the Children's Court finds that a child is not fit to stand trial and the court determines that the child is likely to become fit within the next 6 months, the court must adjourn the matter for the period specified under section 38Q(3)(b) and may—\n\n(a) grant the child bail; or\n\n(b) remand the child in custody for a specified period (not exceeding the period specified under section 38Q(3)(b)); or\n\n(c) make any other order the court thinks appropriate.\n\n(3) If the Children's Court finds that a child is not fit to stand trial and the court determines that the child is not likely to become fit within the next 6 months, the court—\n\n(a) must proceed to hold a special hearing under Division 3 as soon as possible and in any event within 3 months; and\n\n(b) may remand the child in custody or grant bail to the child or make any other order that the court considers appropriate for the safe custody of the child until the special hearing.\n\nS. 38S  \n\n","sortOrder":85},{"sectionNumber":"38S","sectionType":"section","heading":"Abridgment of adjournment","content":"\t38S Abridgment of adjournment\n\n(1) At any time during a period of adjournment under section 38R(2) the child or the prosecutor may apply to the Children's Court—\n\n(a) for an order that the hearing commence or resume, if the child or the prosecutor is of the opinion that the child has become fit to stand trial; or\n\n(b) for an order that the court proceed to hold a special hearing, if the child or the prosecutor is of the opinion that the child will not become fit to stand trial by the end of the period of 6 months after the first finding of unfitness.\n\n(2) An application under subsection (1) must be accompanied by a report on the mental condition of the child by a registered medical practitioner or registered psychologist.\n\n(3) On an application under subsection (1) the Children's Court must—\n\n(b) if satisfied that the child has become fit to stand trial, make an order that the hearing commence or resume as soon as possible; or\n\n(c) if satisfied that the child will not become fit to stand trial by the end of the period of 6 months after the first finding of unfitness, make an order that the court proceed to hold a special hearing as soon as possible and in any event within 3 months.\n\nS. 38T  \n\n","sortOrder":86},{"sectionNumber":"38T","sectionType":"section","heading":"What happens at the end of an adjournment?","content":"\t38T What happens at the end of an adjournment?\n\n(1) At the end of the period of adjournment under section 38R(2), the child is presumed to be fit to stand trial unless a real and substantial question of fitness is raised again.\n\n(2) If a real and substantial question of fitness is raised again, the Children's Court—\n\n(a) must proceed to hold a special hearing under Division 3 as soon as possible and in any event within 3 months; and\n\n(b) may remand the child in custody or grant bail to the child or make any other order that the court considers appropriate for the safe custody of the child until the special hearing.\n\nS. 38U  \n\n","sortOrder":87},{"sectionNumber":"38U","sectionType":"section","heading":"Appeal in relation to fitness to stand trial","content":"\t38U Appeal in relation to fitness to stand trial\n\nS. 38U(1)  \namended by Nos 3/2016 s. 101, 1/2022 s. 82.\n\n(1) In a criminal proceeding in the Children's Court, if the question has arisen whether a child is unfit to stand trial and on an investigation under this Division the Children's Court finds that the child is unfit to stand trial, the child may appeal to the County Court or, if the Children's Court was constituted by the President, to the Trial Division of the Supreme Court or, if constituted by the Chief Magistrate who is a dual commission holder, to the Court of Appeal, against the finding on any ground of appeal.\n\n(2) An appeal under subsection (1) is commenced by filing a notice of appeal with a registrar of the Children's Court at any venue of the Children's Court within 28 days after the day on which the finding is made.\n\n(3) A copy of the notice of appeal must be served on the respondent in accordance with section 392 of the **Criminal Procedure Act 2009** within 7 days after the day on which the notice is filed.\n\n(4) A notice of appeal must be in the form prescribed by the rules of the appellate court.\n\n(5) The Children's Court must transmit a notice of appeal filed under this section to the appellate court.\n\n(6) On an appeal under subsection (1), the appellate court must allow the appeal if the child satisfies the court that—\n\n(b) the Children's Court made a material error of law; or\n\n(c) for any other reason the appellate court considers that the finding should not stand.\n\n(7) In any other case, the appellate court must dismiss an appeal under subsection (1).\n\n(8) If the appellate court allows an appeal under subsection (1), it must set aside the finding of unfitness to stand trial and either—\n\n(a) refer the matter to the Children's Court for hearing and determination of the offence charged against the child; or\n\n(b) remit the matter for a rehearing of the investigation under this Division as to whether the child is fit to stand trial.\n\n(9) Despite subsection (8), if the appellate court allows an appeal under subsection (1) but considers that the child is unfit to stand trial, it may affirm the finding and refer the matter to the Children's Court.\n\n(10) If the appellate court remits a matter under subsection (8)(b)—\n\n(a) it may give directions concerning the manner and scope of the rehearing; and\n\n(b) the Children's Court conducting the rehearing must hear and determine the matter in accordance with the directions, if any.\n\n(11) On remitting or referring a matter under this section, the appellate court may remand the child in custody or grant bail to the child or make any other order that the court considers appropriate for the safe custody of the child.\n\n","sortOrder":88},{"sectionNumber":"Div 3","sectionType":"division","heading":"Special hearings","content":"Division 3—Special hearings\n\nS. 38V  \n\n","sortOrder":89},{"sectionNumber":"38V","sectionType":"section","heading":"Purpose of special hearings","content":"\t38V Purpose of special hearings\n\nThe purpose of a special hearing is to determine whether, on the evidence available, the child—\n\n(a) is not guilty of the offence; or\n\n(b) is not guilty of the offence because of mental impairment; or\n\n(c) committed the offence charged or an offence available as an alternative.\n\nS. 38W  \n\n","sortOrder":90},{"sectionNumber":"38W","sectionType":"section","heading":"Procedure at special hearings","content":"\t38W Procedure at special hearings\n\n(1) A special hearing is to be conducted as nearly as possible as if it were a hearing and determination of a charge for an offence.\n\n(2) Without limiting subsection (1), at a special hearing—\n\n(a) the child must be taken to have pleaded not guilty to the offence; and\n\n(b) the child may raise any defence that could be raised if the special hearing were a hearing of the charge, including the defence of mental impairment; and\n\n(c) the rules of evidence apply; and\n\n(d) subject to section 524 of the **Children, Youth and Families Act 2005**, the child must be legally represented; and\n\nSee section 525(2) of the **Children, Youth and Families Act 2005**.\n\n(e) any alternative finding that would be available if the special hearing were a hearing and determination of the charge is available to the Children's Court.\n\nS. 38X  \n\n","sortOrder":91},{"sectionNumber":"38X","sectionType":"section","heading":"Findings at special hearings","content":"\t38X Findings at special hearings\n\n(1) The following findings are available to the Children's Court at a special hearing—\n\n(a) not guilty of the offence charged;\n\n(b) not guilty of the offence because of mental impairment;\n\n(c) the child committed the offence charged or an offence available as an alternative.\n\n(2) To make a finding under subsection (1)(c) the Children's Court must be satisfied beyond reasonable doubt, on the evidence available, that the child committed the offence charged or an offence available as an alternative.\n\nS. 38Y  \n\n","sortOrder":92},{"sectionNumber":"38Y","sectionType":"section","heading":"Effect of findings","content":"\t38Y Effect of findings\n\n(1) If the Children's Court makes a finding under section 38X(1)(a), the child is to be taken for all purposes to have been found not guilty at a hearing and determination of the charge.\n\n(2) A finding under section 38X(1)(b) is to be taken for all purposes to be a finding of not guilty because of mental impairment at a hearing and determination of the charge.\n\nSection 38ZE provides for appeals against a finding of not guilty because of mental impairment.\n\n(3) A finding under section 38X(1)(c)—\n\n(a) constitutes a qualified finding of guilt and does not constitute a basis in law for any conviction for the offence to which the finding relates; and\n\n(b) constitutes a bar to further prosecution in respect of the same circumstances; and\n\n(c) is subject to appeal in the same manner as if the child had been convicted of the offence in a hearing and determination of the charge.\n\n(4) If the Children's Court makes a finding under section 38X(1)(c), the court must—\n\n(a) declare that the child is liable to supervision under Division 5; or\n\n(b) order the child to be released unconditionally.\n\n(5) The Children's Court must not declare a child liable to supervision unless the court considers that the declaration is necessary in all the circumstances including—\n\n(a) whether adequate supervision is available in the community; and\n\n(6) The Children's Court must not order a child to be released unconditionally unless the court is satisfied that, if necessary, the child is receiving appropriate treatment or support for the child's mental health or disability.\n\n(7) The Children's Court may adjourn a hearing to enable evidence of the matters referred to in subsections (5) and (6) to be obtained.\n\nS. 38Z  \n\n","sortOrder":93},{"sectionNumber":"38Z","sectionType":"section","heading":"Court may make orders pending making of supervision order","content":"\t38Z Court may make orders pending making of supervision order\n\nIf the Children's Court declares a child liable to supervision, the court may make any one or more of the following orders pending the making of a supervision order—\n\n(c) any other order the court thinks appropriate.\n\nS. 38ZAA  \n\n\t38ZAA Appeal against unconditional release\n\nS. 38ZAA(1)  \namended by Nos 3/2016 s. 102, 1/2022 s. 83.\n\n(1) The Director of Public Prosecutions may appeal to the County Court or, if the Children's Court was constituted by the President, the Trial Division of the Supreme Court or, if constituted by the Chief Magistrate who is a dual commission holder, to the Court of Appeal, against an order for unconditional release under section 38Y(4)(b) if he or she considers that—\n\n(2) An appeal under subsection (1) is commenced by filing a notice of appeal with a registrar of the Children's Court at any venue of the Children's Court within 28 days after the day on which the order is made.\n\n(3) A notice of appeal under subsection (2) must be signed by the Director of Public Prosecutions personally.\n\n(4) A copy of the notice of appeal must be served personally on the child in accordance with section 391 of the **Criminal Procedure Act 2009** within 7 days after the day on which the notice of appeal is filed.\n\n(5) The Director of Public Prosecutions must provide a copy of the notice of appeal to the legal practitioner who last represented the child in the special hearing, if that legal practitioner can reasonably be identified.\n\n(8) On an appeal under subsection (1), the appellate court may—\n\n(b) set aside the order and by order declare that the child is liable to supervision under Division 5.\n\n(9) The appellate court must not declare a child liable to supervision unless the court considers that the declaration is necessary in all the circumstances including—\n\n(a) whether supervision is available in the community; and\n\n(10) If the appellate court declares a child liable to supervision, the appellate court may—\n\n(a) remit the matter, with or without directions, to the Children's Court; or\n\n(b) make a supervision order in respect of the child.\n\n(11) If the appellate court remits a matter to the Children's Court under subsection (10)(a), that court must make a supervision order in respect of the child in accordance with this Act and any directions given by the appellate court.\n\n(12) The appellate court may remand the child in custody or grant bail to the child or make any other order that the court considers appropriate for the safe custody of the child pending the making of a supervision order in respect of the child.\n\nDivision 4—Defence of mental impairment\n\nS. 38ZA  \n\n\t38ZA Defence of mental impairment\n\n(1) The defence of mental impairment is established for a child charged with an offence if, at the time of engaging in conduct constituting the offence, the child was suffering from a mental impairment that had the effect that—\n\n(a) he or she did not know the nature and quality of the conduct; or\n\n(b) he or she did not know that the conduct was wrong (that is, he or she could not reason with a moderate degree of sense and composure about whether the conduct, as perceived by reasonable people, was wrong).\n\n(2) If the defence of mental impairment is established, the child must be found not guilty because of mental impairment.\n\nS. 38ZB  \n\n\t38ZB Presumptions, standard of proof etc.\n\n(1) A child is presumed not to have been suffering from a mental impairment having the effect referred to in section 38ZA(1) until the contrary is proved.\n\n(2) The question whether a child was suffering from a mental impairment having the effect referred to in section 38ZA(1)—\n\n(b) is to be determined on the balance of probabilities.\n\n(3) If the defence of mental impairment is raised by the prosecution or the defence, the party raising it bears the onus of rebutting the presumption.\n\n(4) If the defence intends to raise the question of mental impairment, the defence must give reasonable notice of that intention to the prosecution.\n\nS. 38ZC  \n\n\t38ZC When may the question of mental impairment be raised?\n\n(1) The question of mental impairment may be raised at any time during a hearing by the defence or, with the leave of the Children's Court, by the prosecution.\n\nS. 38ZC(2) repealed by No. 5/2025 s. 54.\n\nS. 38ZD  \n\n\t38ZD Effect of finding of not guilty because of mental impairment\n\n(1) If a child is found not guilty because of mental impairment of an indictable offence heard and determined summarily in the Children's Court, the court must—\n\n(a) declare that the child is liable to supervision under Division 5; or\n\n(b) order the child to be released unconditionally.\n\n(2) The Children's Court must not declare a child liable to supervision unless the court considers that the declaration is necessary in all the circumstances including—\n\n(a) whether adequate supervision is available in the community; and\n\n(3) The Children's Court must not order a child to be released unconditionally unless the court is satisfied that, if necessary, the child is receiving appropriate treatment or support for the child's mental health or disability.\n\n(4) The Children's Court may adjourn a hearing to enable evidence of the matters referred to in subsections (2) and (3) to be obtained.\n\nS. 38ZE  \n\n\t38ZE Appeal against mental impairment finding\n\nS. 38ZE(1)  \namended by Nos 3/2016 s. 103, 1/2022 s. 84.\n\n(1) In a criminal proceeding in the Children's Court, if a finding of not guilty because of mental impairment is recorded against a child, the child may appeal to the County Court or, if the Children's Court was constituted by the President, to the Trial Division of the Supreme Court or, if constituted by the Chief Magistrate who is a dual commission holder, to the Court of Appeal, against the finding on any ground of appeal.\n\n(2) An appeal under subsection (1) is commenced by filing a notice of appeal with a registrar of the Children's Court at any venue of the Children's Court within 28 days after the day on which the finding is made.\n\n(3) A copy of the notice of appeal must be served on the respondent in accordance with section 392 of the **Criminal Procedure Act 2009** within 7 days after the day on which the notice is filed.\n\n(4) A notice of appeal must be in the form prescribed by the rules of the appellate court.\n\n(5) The Children's Court must transmit a notice of appeal filed under this section to the appellate court.\n\n(6) On an appeal under subsection (1), the appellate court must allow the appeal if the child satisfies the court that—\n\n(a) the finding of the Children's Court is unreasonable or cannot be supported having regard to the evidence; or\n\n(b) as a result of an error or an irregularity in, or in relation to, the hearing there has been a substantial miscarriage of justice; or\n\n(c) for any other reason there has been a substantial miscarriage of justice.\n\n(7) Despite subsection (6), the appellate court may dismiss an appeal that would otherwise be allowed under that subsection if—\n\n(a) none of the grounds for allowing the appeal relates to the issue of the mental impairment of the appellant; and\n\n(b) the court considers that, but for the mental impairment of the appellant, the proper verdict would have been that the appellant was guilty of an offence other than the offence charged.\n\n(8) In any other case, the appellate court must dismiss an appeal under subsection (1).\n\n(9) If the appellate court—\n\n(a) allows an appeal under subsection (1) on a ground that the finding of not guilty because of mental impairment ought not to stand; and\n\n(b) considers that the proper finding would have been guilty of an offence, whether the offence charged or an offence available as an alternative verdict—\n\nthe appellate court must substitute for the finding a finding of guilty of that offence and may make any order, or exercise any power, that the Children's Court could have made or exercised.\n\n(10) Subject to subsection (9), if the appellate court allows an appeal under subsection (1), it must set aside the finding and either—\n\n(a) enter a finding of not guilty of the offence charged; or\n\n(b) order a new trial.\n\n(11) If the appellate court orders a new trial, it may remand the child in custody or grant bail to the child or make any other order that the court considers appropriate for the safe custody of the child.\n\nS. 38ZF  \n\n\t38ZF Appeal against unconditional release\n\nS. 38ZF(1)  \namended by Nos 3/2016 s. 104, 1/2022 s. 85.\n\n(1) The Director of Public Prosecutions may appeal to the County Court or, if the Children's Court was constituted by the President, to the Trial Division of the Supreme Court or, if constituted by the Chief Magistrate who is a dual commission holder, to the Court of Appeal, against an order for unconditional release under section 38ZD(1)(b) if he or she considers that—\n\n(2) An appeal under subsection (1) is commenced by filing a notice of appeal with a registrar of the Children's Court at any venue of the Children's Court within 28 days after the day on which the order is made.\n\n(3) A notice of appeal under subsection (2) must be signed by the Director of Public Prosecutions personally.\n\n(4) A copy of the notice of appeal must be served personally on the child in accordance with section 391 of the **Criminal Procedure Act 2009** within 7 days after the day on which the notice of appeal is filed.\n\n(5) The Director of Public Prosecutions must provide a copy of the notice of appeal to the legal practitioner who last represented the child in the proceeding to which the appeal relates, if that legal practitioner can reasonably be identified.\n\n(8) On an appeal under subsection (1), the appellate court may—\n\n(b) set aside the order and by order declare that the child is liable to supervision under Division 5.\n\n(9) The appellate court must not declare a child liable to supervision unless the court considers that the declaration is necessary in all the circumstances including—\n\n(a) whether supervision is available in the community; and\n\n(10) If the appellate court declares a child liable to supervision, the appellate court may—\n\n(a) remit the matter, with or without directions, to the Children's Court; or\n\n(b) make a supervision order in respect of the child.\n\n(11) If the appellate court remits a matter to the Children's Court under subsection (10)(a), that court must make a supervision order in respect of the person in accordance with this Act and any directions given by the appellate court.\n\n(12) The appellate court may remand the child in custody or grant bail to the child or make any other order that the court considers appropriate for the safe custody of the child pending the making of a supervision order in respect of the child.\n\nDivision 5—Disposition of children declared to be liable to supervision\n\nS. 38ZG  \ninserted by No. 55/2014 s. 125 (as amended by No. 79/2014 s. 48), repealed by No. 32/2024 s. 793.\n\nS. 38ZH  \n\n\t38ZH Supervision orders\n\n(1) If the Children's Court declares that a child is liable to supervision under this Division, the court must make a supervision order in respect of the child.\n\n(2) The purpose of a supervision order is to ensure that a child receives treatment, support, guidance and assistance for the child's mental impairment or other condition or disability.\n\n(3) A custodial supervision order has an additional purpose of protecting the child or the community while the child receives the treatment, support, guidance and assistance referred to in subsection (2).\n\n(4) A child may be subject to a custodial supervision order only for as long as is required for the protection of the child or the community.\n\n(5) A supervision order may—\n\n(a) commit the child to custody (***custodial supervision order***); or\n\n(b) release the child on conditions decided by the Children's Court and specified in the order (***non‑custodial supervision order***).\n\n(6) The Children's Court must not make a supervision order unless it has received—\n\n(a) a report under Division 6 as to supervision; and\n\n(b) a certificate under section 47 stating that the facilities or services necessary for the supervision order are available.\n\n(7) The Children's Court must not make a custodial supervision order unless the court finds that—\n\n(a) there is no practicable alternative in the circumstances; and\n\n(b) the order is required for the protection of the child or the community.\n\nS. 38ZI  \n\n\t38ZI How long does a supervision order last?\n\n(1) A supervision order is for a term not exceeding 6 months that is specified by the Children's Court.\n\n(2) When making a supervision order, the Children's Court must direct that the matter be brought back to the court for review at the end of the period specified by the court.\n\nThe court's powers on review are contained in section 38ZO (for custodial supervision orders) and section 38ZP (for non‑custodial supervision orders).\n\n(3) The term of a supervision order may be extended more than once by a maximum of 6 months but so that the total period of the order (including custodial supervision orders and non-custodial supervision orders) does not exceed—\n\nS. 38ZI(3)(a) amended by No. 32/2024 s. 794(a).\n\n(a) in the case of a child who is under 15 years of age at the time of the making of the supervision order, 12 months; and\n\nS. 38ZI(3)(b) amended by No. 32/2024 s. 794(b).\n\n(b) in the case of a child who is 15 years of age or over but under 21 years of age at the time of the making of the supervision order, 24 months.\n\nS. 38ZJ  \n\n\t38ZJ Appeal against supervision order\n\nS. 38ZJ(1)  \namended by Nos 3/2016 s. 105, 1/2022 s. 86.\n\n(1) A child in respect of whom a supervision order is made may appeal to the County Court or, if the Children's Court was constituted by the President, to the Trial Division of the Supreme Court or, if constituted by the Chief Magistrate who is a dual commission holder, to the Court of Appeal, against the supervision order.\n\nS. 38ZJ(2) amended by Nos 15/2015 s. 37(12)(a), 3/2016 s. 105, 1/2022 s. 86.\n\n(2) The Director of Public Prosecutions, the Attorney‑General or the Secretary to the Department of Health and Human Services may appeal to the County Court or, if the Children's Court was constituted by the President, to the Trial Division of the Supreme Court or, if constituted by the Chief Magistrate who is a dual commission holder, to the Court of Appeal, against a supervision order if he or she considers that—\n\n(a) a different supervision order should have been made; and\n\n(3) An appeal under this section is commenced by filing a notice of appeal with a registrar of the Children's Court at any venue of the Children's Court within 28 days after the day on which the order is made.\n\n(4) If the appeal is commenced by a child in respect of whom a supervision order is made, a copy of the notice of appeal must be served on the respondent in accordance with section 392 of the **Criminal Procedure Act 2009** within 7 days after the day on which the notice is filed.\n\nS. 38ZJ(5) amended by No. 15/2015 s. 37(12)(b).\n\n(5) If the appeal is commenced by the Secretary to the Department of Health and Human Services, the Director of Public Prosecutions or the Attorney‑General—\n\n(b) a copy of the notice of appeal must be served personally on the child in accordance with section 391 of the **Criminal Procedure Act 2009** within 7 days after the day on which the notice is filed; and\n\n(c) that person must provide a copy of the notice of appeal to the legal practitioner who last represented the child in the proceeding when the supervision order was made, if that legal practitioner can reasonably be identified.\n\n(8) On an appeal under this section, the appellate court may—\n\n(b) set aside the supervision order and make another supervision order in substitution for it; or\n\n(c) set aside the supervision order and remit the matter, with or without directions, to the Children's Court; or\n\n(d) set aside the supervision order and order the child who was subject to the supervision order to be released unconditionally.\n\n(9) If the appellate court remits a matter to the Children's Court under subsection (8)(c), the Children's Court must make another supervision order in accordance with this Act and any directions given by the appellate court.\n\n(10) The appellate court may make any one or more of the following orders pending the making of a supervision order in respect of a child under this section—\n\n(c) if it is of the opinion that it is in the interests of justice to do so, an order—\n\n(i) that the child undergo an examination by a registered medical practitioner or registered psychologist; and\n\n(d) any other order the court thinks appropriate.\n\nS. 38ZK  \n\n\t38ZK Non-compliance with non-custodial supervision order\n\nS. 38ZK(1) amended by No. 15/2015 s. 37(13).\n\n(1) A person having the supervision of a child under a non-custodial supervision order (***the supervisor***), the Secretary to the Department of Health and Human Services may apply to the Children's Court for a variation of the order if it appears to the supervisor, the Secretary to the Department of Health and Human Services that the child has failed to comply with the order.\n\n(2) The Children's Court may order that a warrant to arrest be issued against the child subject to the non-custodial supervision order if the child does not attend before the court on the hearing of the application.\n\nS. 38ZK(3) amended by No. 6/2018 s. 68(Sch. 2 item 36.1).\n\n(3) If the Children's Court is satisfied by evidence on oath or by affirmation or by affidavit, or by the admission of the child subject to the non‑custodial supervision order that the child has failed to comply with the order, the court must, by order—\n\n(c) vary the order to a custodial supervision order.\n\nSection 47 requires that a certificate under that section be provided before a court makes a custodial supervision order.\n\n(4) If the Children's Court varies a non-custodial supervision order to a custodial supervision order before the end of the term of the order, that term continues to run.\n\nS. 38ZL  \n\n\t38ZL Emergency power of apprehension\n\n(1) A child subject to a non-custodial supervision order may be apprehended by an appropriate person if the appropriate person reasonably believes—\n\n(a) that the child has failed to comply with the order; and\n\n(b) that the safety of the child or members of the public will be seriously endangered if the child is not apprehended.\n\n(2) Subject to subsection (4), a child who is apprehended under subsection (1) is to be detained in custody and, if necessary, treated or provided with services for his or her condition.\n\n(3) For the purpose of apprehending a child and taking them to a place of detention, the appropriate person may with such assistance as is required and such force as may be reasonably necessary—\n\n(a) enter any premises in which he or she has reasonable grounds for believing that the child may be found; and\n\n(b) if necessary to enable that child to be apprehended and taken safely, use any restraint that may be reasonably necessary.\n\n(4) A child who is apprehended under this section must be released from detention within 48 hours unless, within that period, an application is made under section 38ZK(1) for variation of the child's supervision order.\n\n(5) The Children's Court must hear an application referred to in subsection (4) as soon as possible.\n\n(6) In this section—\n\nS. 38ZL(6) def. of *appropriate person* amended by No. 55/2014 s. 155(2).\n\n***appropriate person***, in relation to a child subject to a supervision order, means—\n\n(a) a person having supervision of the child under the order; or\n\n(b) a police officer; or\n\n(c) an ambulance officer; or\n\n(d) a person who is a member of a class prescribed for the purposes of this section.\n\nS. 38ZM  \n\n\t38ZM Warrant to arrest child breaching non-custodial supervision order who leaves Victoria\n\nS. 38ZM(1) amended by No. 15/2015 s. 37(13).\n\n(1) If at any time it appears to a person having supervision of a child under a non-custodial supervision order, the Secretary to the Department of Health and Human Services that the child—\n\n(a) has failed to comply with the order; and\n\nthe person having supervision, the Secretary to the Department of Health and Human Services may apply to the Children's Court for a warrant to arrest the child.\n\nS. 38ZM(2) amended by No. 6/2018 s. 68(Sch. 2 item 36.1).\n\n(2) If the Children's Court is satisfied by evidence on oath or by affirmation or by affidavit, of the matters specified in subsection (1)(a) and (b), the court may order that a warrant to arrest be issued against the child.\n\n(3) When a child arrested under a warrant issued under this section is returned to Victoria, he or she is to be detained in custody and treated or provided with services, if necessary, for his or her condition.\n\n(4) Despite subsection (3), a child must be released from detention within 48 hours unless, within that period, an application is made under section 38ZK(1) for variation of the child's supervision order.\n\n(5) The Children's Court must hear an application referred to in subsection (4) as soon as possible.\n\n**Notes**\n\n1 Section 498(1) of the **Children, Youth and Families Act 2005** provides an offence of being absent without lawful authority from a youth justice centre or a youth residential centre. Section 498(2) and (3) of that Act provide for apprehension without warrant and the issue of a search warrant.\n\nNote 2 to s. 38ZM amended by No. 39/2022 s. 816.\n\n2 Section 563 of the **Mental Health and Wellbeing Act 2022** provides for a warrant to arrest a security patient absent without leave who leaves Victoria.\n\nS. 38ZN  \n\n\t38ZN Application for variation or revocation of supervision order\n\n(1) Any of the following may apply to the Children's Court for a variation of a custodial supervision order or a variation or revocation of a non-custodial supervision order—\n\n(a) the child subject to the order;\n\n(b) a person having the custody, care, control or supervision of that child;\n\n(c) the Chief Commissioner of Police.\n\n(2) If the Children's Court refuses an application under this section by a child who is subject to a custodial supervision order, the court may order that a later application cannot be made by that child until the next review of the order by the court.\n\nS. 38ZO  \n\n\t38ZO Variation of custodial supervision orders on application or review\n\n(1) On an application under section 38ZN for variation of a custodial supervision order or on a review of a custodial supervision order directed under section 38ZI(2) or on a further review of a custodial supervision order directed under subsection (3) or section 38ZP(2), the Children's Court must, by order—\n\n(b) vary the place of custody; or\n\n(c) subject to this section, vary the order to a non-custodial supervision order.\n\n(2) The Children's Court must not vary a custodial supervision order to a non-custodial supervision order unless satisfied on the evidence available that the safety of the child subject to the order or members of the public will not be seriously endangered as a result of the release of the child on a non-custodial supervision order.\n\nS. 38ZO(3) amended by No. 3/2016 s. 107.\n\n(3) TheChildren's Court may direct that the matter be brought back to the court for further review at the end of the period not exceeding 6 months specified by the court.\n\nS. 38ZP  \n\n\t38ZP Variation or revocation of non-custodial supervision orders on application or review\n\n(1) On an application under section 38ZN for variation or revocation of a non-custodial supervision order or on a review of a non‑custodial supervision order directed under section 38ZI(2) or on a further review of a non‑custodial supervision order directed under subsection (2) or section 38ZO(3), the Children's Court must, by order—\n\n(c) vary the order to a custodial supervision order; or\n\n(d) revoke the order.\n\n(2) Unless the Children's Court revokes the order, the court may direct that the matter be brought back to the court for further review at the end of the period not exceeding 6 months specified by the court.\n\nS. 38ZQ  \n\n\t38ZQ Transfer of supervision order for review by County Court\n\n(1) The Children's Court may order that a supervision order made under this Division be transferred to the County Court for review if the person subject to the supervision order is or will be of or above the age of 19 years at the date specified by the Children's Court for review of the supervision order.\n\n(2) Section 38ZN applies to a supervision order transferred under subsection (1) as if a reference to the Children's Court were a reference to the County Court.\n\n(3) On an application under section 38ZN for variation of a supervision order transferred under subsection (1) or on a review of a supervision order transferred under subsection (1), the County Court has and may exercise all the powers and authorities that the Children's Court has under this Division.\n\nDivision 6—Reports as to supervision and victim impact statements\n\nS. 38ZR  \ninserted by No. 55/2014 s. 125 (as amended by No. 79/2014 s. 48), amended by No. 20/2015 s. 35.\n\n\t38ZR Court must order report as to supervision\n\nIf the Children's Court declares that a child is liable to supervision under Division 5, the court—\n\n(a) must, before making a supervision order, order that a report under this Division as to supervision be submitted in respect of the child and adjourn the hearing to enable the report to be prepared; and\n\n(b) may remand the child in custody or grant bail to the child or make any other order that the court considers appropriate for the safe custody of the child until the date to which the hearing is adjourned.\n\nS. 38ZS  \ninserted by No. 55/2014 s. 125 (as amended by No. 79/2014 s. 48), substituted by No. 15/2015 s. 34.\n\n\t38ZS Report to be prepared and filed\n\nThe Secretary to the Department of Health and Human Services must—\n\n(a) arrange to have prepared a report referred to in section 38ZR; and\n\n(b) file the report with the court that declared that the child is liable to supervision under Division 5.\n\nS. 38ZT  \n\n\t38ZT Contents of report\n\n(1) A report must set out the following matters—\n\n(a) whether the child has a mental impairment or other condition or disability and, if so, specify the services which are available and appropriate for the child;\n\n(b) the services currently being made available to the child, whether or not by a government department, and whether the child has complied with those services;\n\nS. 38ZT(1)(c) amended by No. 20/2015 s. 36.\n\n(c) if the Children's Court so requests, the services that would be made available to the child if a custodial supervision order were to be made in respect of the child.\n\n(2) The author of a report may include in the report a recommendation as to whether a non-custodial supervision order or a custodial supervision order is appropriate for the child who is the subject of the report.\n\nS. 38ZT(3) amended by No. 15/2015 s. 37(14).\n\n(3) If the Secretary to the Department of Health and Human Services has issued a statement in respect of the child that the child has an intellectual disability within the meaning of the **Disability Act 2006**, a report must include a copy of the statement.\n\n(4) Division 1 of Part 7.8 of Chapter 7 of the **Children, Youth and Families Act 2005** applies, with any necessary modifications, to a report under this Division.\n\nS. 38ZU  \n\n\t38ZU Report to be filed with court\n\nA report must be filed at least 3 working days before the return date with—\n\n(a) the registrar of the Children's Court at the venue of the court at which the order was made; or\n\n(b) in the case of an appeal under section 38ZF, the prothonotary of the Supreme Court or the registrar of the County Court (as the case requires).\n\nS. 38ZV  \n\n\t38ZV Access to reports\n\n(1) The author of a report must, within the period referred to in section 38ZU, send a copy of the report to—\n\n(a) the child who is the subject of the report; and\n\n(b) the legal practitioners representing the child; and\n\n(c) any other person whom the court has ordered is to receive a copy of the report.\n\n(2) The author of a report is not required to send copies of the report in accordance with subsection (1)(a) or (c) if—\n\n(a) he or she is of the opinion that information contained in the report may be prejudicial to the physical or mental health of the child; or\n\n(b) the child notifies him or her that the child objects to the forwarding of copies of the report.\n\n(3) If because of subsection (2) the author of a report is not required to send a copy of the report to a person, the author may send to that person a copy of part of the report.\n\n(4) If because of subsection (2) the author of a report does not send copies of the report in accordance with subsection (1)(a) or (c)—\n\n(a) the author must inform the registrar referred to in section 38ZU(a), the prothonotary of the Supreme Court or the registrar of the County Court (as the case requires) of that fact; and\n\n(b) the Children's Court, the Trial Division of the Supreme Court or the County Court (as the case requires) may by order direct the registrar or prothonotary to forward a copy of the report, or a specified part of the report, together with a copy of the order, to a person named or described in the order as soon as possible and before the hearing.\n\nS. 38ZW  \n\n\t38ZW Victim impact statements\n\nS. 38ZW(1) amended by No. 20/2015 s. 37.\n\n(1) Before the Children's Court makes a supervision order under section 38ZH or varies or revokes a supervision order under section 38ZO or 38ZP, a victim of the offence may make a victim impact statement to the court for the purpose of assisting the court in determining any conditions it may impose on the supervision order.\n\n(2) Sections 359, 359A and 359B of the **Children, Youth and Families Act 2005** apply to victim impact statements under this section.\n\n","sortOrder":94},{"sectionNumber":"Part 6","sectionType":"part","heading":"Principles on which court is to act, reports and certificates","content":"Part 6—Principles on which court is to act, reports and certificates\n\nS. 39 amended by Nos 7/2002 s. 18, 55/2014 s. 126 (ILA s. 39B(1)).\n\n","sortOrder":95},{"sectionNumber":"39","sectionType":"section","heading":"Principle to be applied","content":"\t39 Principle to be applied\n\n(1) In deciding whether to make, vary or revoke a supervision order, to remand a person in custody, to grant a person extended leave or to revoke a grant of extended leave under this Act, the court must apply the principle that restrictions on a person's freedom and personal autonomy should be kept to the minimum consistent with the safety of the community.\n\nS. 39(2) inserted by No. 55/2014 s. 126.\n\n(2) In subsection (1), ***supervision order*** includes an order made under section 38ZH.\n\n","sortOrder":96},{"sectionNumber":"40","sectionType":"section","heading":"Matters to which the court is to have regard","content":"\t40 Matters to which the court is to have regard\n\nS. 40(1) amended by Nos 7/2002 s. 19(1), 55/2014 s. 127.\n\n(1) In deciding whether or not to make, vary or revoke an order under Part 3, 4, 5 or 5A in relation to a person, to grant extended leave to a person or to revoke a grant of extended leave, the court must have regard to—\n\n(a) the nature of the person's mental impairment or other condition or disability; and\n\n(b) the relationship between the impairment, condition or disability and the offending conduct; and\n\n(c) whether the person is, or would if released be, likely to endanger themselves, another person, or other people generally because of his or her mental impairment; and\n\n(d) the need to protect people from such danger; and\n\n(e) whether there are adequate resources available for the treatment and support of the person in the community; and\n\n(f) any other matters the court thinks relevant.\n\n(2) The court cannot order a person to be released unconditionally or otherwise release a person from custody under Part 3, 4 or 5, or significantly reduce the degree of supervision to which a person is subject, unless it—\n\n(a) has obtained and considered the report of at least one registered medical practitioner or registered psychologist, who has personally examined the person, on—\n\n(i) the person's mental condition; and\n\n(ii) the possible effect of the proposed order on the person's behaviour; and\n\nS. 40(2)(ab) inserted by No. 7/2002 s. 19(2)(a).\n\n(ab) in the case of a person who is subject to a supervision order, has obtained and considered the report of a person having the supervision of the person subject to the order; and\n\n(b) has considered the report submitted to the court under section 41(1) or (3) (as the case may be); and\n\n(c) is satisfied that the person's family members and the victims of the offence with which the person was charged (if any), have been given reasonable notice of the hearing at which the release or reduction is proposed to be ordered; and\n\n(d) has considered any report of the family members or victims made under section 42; and\n\nS. 40(2)(da) inserted by No. 7/2002 s. 19(2)(b).\n\n(da) in the case of an application for extended leave—has considered the leave plan filed under section 57A; and\n\n(e) has obtained and considered any other reports the court considers necessary.\n\nS. 40(3) substituted by No. 7/2002 s. 19(3).\n\n(3) Subsection (2)(c) does not apply if section 38C provides that notice is not to be given, or need not be given, to a family member or victim.\n\nS. 40(4) inserted by No. 7/2002 s. 19(3).\n\n(4) The court cannot make a further grant of extended leave for a person who is on extended leave at the time of the application unless the court has obtained and considered—\n\n(a) the report of at least one registered medical practitioner or registered psychologist, who has personally examined the person, on—\n\n(i) the person's mental condition; and\n\n(ii) the possible effect of the proposed further grant on the person's behaviour; and\n\n(b) the leave plan filed under section 57A.\n\nS. 41 (Heading) inserted by No. 68/2009 s. 97(Sch. item 39.37).\n\n","sortOrder":97},{"sectionNumber":"41","sectionType":"section","heading":"Reports on mental condition of persons declared liable to supervision","content":"\t41 Reports on mental condition of persons declared liable to supervision\n\n(1) If a person is declared to be liable to supervision under Part 5, the appropriate person must arrange to have prepared and filed with the court that made the declaration a report, prepared by a registered medical practitioner or registered psychologist, on the mental condition of the person containing—\n\n(a) a diagnosis and prognosis of the condition or an outline of the person's behavioural problems; and\n\n(b) the person's response to treatment, therapy or counselling (if any); and\n\n(c) a suggested treatment or other plan for managing the condition.\n\n(2) The report must be filed within 30 days after the declaration or within such longer period as the court allows.\n\n(3) If a supervision order is made in relation to the person, the appropriate person must arrange to have prepared and filed with the court that made the order, at intervals of not more than 12 months for the duration of the order, a report containing—\n\n(a) a statement of any treatment, therapy or counselling that the person has undergone, or any services that the person has received, since the making of the order or the last report; and\n\n(b) any changes to the prognosis of the person's condition or the person's behavioural problems and the plan for managing the condition or problems.\n\nS. 41(3A) inserted by No. 7/2002 s. 20.\n\n(3A) The purpose of a report under subsection (3) is to assist the court in determining any application or undertaking any review in respect of the person to whom the report relates.\n\nSection 40(2)(b) requires the court to consider the report before it can make certain orders or other determinations in respect of the person to whom it relates.\n\nS. 41(3B) inserted by No. 7/2002 s. 20.\n\n(3B) The appropriate person must give the Attorney‑General a copy of each report filed with the court under subsection (3).\n\n(4) In this section—\n\nS. 41(4) def. of *appropriate person* amended by Nos 29/2010 s. 28, 26/2014 s. 439, 15/2015 ss 37(15), 38(2), 19/2019 s. 243.\n\n***appropriate person*** means—\n\n(a) the Secretary to the Department of Justice andRegulation if the person declared liable to supervision, or subject to a supervision order, is in custody in a prison; or\n\n(b) the Secretary to the Department of Health and Human Services if the person is—\n\n(i) in custody in a residential treatment facility or a designated mental health service; or\n\n(ii) receiving treatment or services under a supervision order from—\n\n(A) a residential treatment facility; or\n\n(C) a disability service provider; or\n\n(D) a designated mental health service; or\n\n(E) the Secretary to the Department of Health and Human Services.\n\n","sortOrder":98},{"sectionNumber":"42","sectionType":"section","heading":"Reports of family members and victims","content":"\t42 Reports of family members and victims\n\n(1) For the purpose of—\n\n(a) assisting counselling and treatment processes for all people affected by an offence; and\n\nS. 42(1)(b) amended by No. 7/2002 s. 21(1)(a).\n\n(b) assisting the court in determining any conditions it may impose on an order made in respect of a person under this Act or in determining whether or not to grant a person extended leave—\n\na family member of the person or a victim of the offence may make a report to the court.\n\nS. 42(2) amended by No. 7/2002 s. 21(1)(b).\n\n(2) A report by a family member or victim is to contain the views of the family member or victim on the conduct of the person and the impact of that conduct on the family member or victim.\n\nS. 42(3) repealed by No. 7/2002 s. 21(1)(c).\n\n(4) A report may be made by another person on behalf of a family member or victim—\n\n(a) who is under the age of 18 years; or\n\n(b) who the court is satisfied is incapable of making the report because of mental impairment or any other reason.\n\n","sortOrder":99},{"sectionNumber":"43","sectionType":"section","heading":"When and how is a report to be made?","content":"\t43 When and how is a report to be made?\n\n(1) A report under section 42 may be made to the court—\n\n(a) before the court makes an order under Part 3, 4 or 5 in respect of a person; or\n\n(b) whenever an application is made for variation or revocation of such an order; or\n\nS. 43(1)(c) amended by No. 7/2002 s. 21(2).\n\n(c) on a major review; or\n\nS. 43(1)(d) inserted by No. 7/2002 s. 21(2).\n\n(d) whenever an application is made for extended leave which, if granted, would significantly reduce the degree of supervision to which the person is subject.\n\n(2) A report may be made—\n\n(a) in writing by statutory declaration; or\n\nS. 43(2)(b) amended by No. 6/2018 s. 68(Sch. 2 item 36.2).\n\n(b) in writing by statutory declaration and orally by sworn or affirmed evidence.\n\nS. 44 substituted by No. 7/2002 s. 22.\n\n","sortOrder":100},{"sectionNumber":"44","sectionType":"section","heading":"Distribution of report","content":"\t44 Distribution of report\n\n(1) A person who makes a report under section 42 must give the report to the Director of Public Prosecutions a reasonable time before the hearing is to take place.\n\n(2) The Director of Public Prosecutions must, as soon as practicable—\n\n(a) file a copy of the report with the court; and\n\n(b) give a copy of the report to the person who is, or is to be made subject to, the order or his or her legal practitioner.\n\n","sortOrder":101},{"sectionNumber":"45","sectionType":"section","heading":"Admissibility of report","content":"\t45 Admissibility of report\n\n(1) The court may rule as inadmissible the whole or any part of a report under section 42.\n\n(2) A report under section 42 is not admissible in any civil or criminal proceeding, other than the proceeding in relation to which it was made, except—\n\n(a) a proceeding for an offence against section 314(1) of the **Crimes Act 1958** (perjury) or for any other offence that involves an interference with the due administration of justice; or\n\n(b) with the consent of the person who made the report.\n\n(3) A court, tribunal or person acting judicially may rule as admissible in a proceeding before them any matter inadmissible because of subsection (2) if satisfied, on the application of a party to the proceeding, that it is in the interests of justice to do so.\n\n","sortOrder":102},{"sectionNumber":"46","sectionType":"section","heading":"Examination of victim or family member","content":"\t46 Examination of victim or family member\n\n(1) The court, at the request of any party to the proceedings, may call a person who has made a report under section 42 to give evidence.\n\n(2) A person who gives evidence under subsection (1) may be cross-examined and re-examined.\n\n","sortOrder":103},{"sectionNumber":"47","sectionType":"section","heading":"Certificate of available services","content":"\t47 Certificate of available services\n\nS. 47(1) amended by No. 23/2006 s. 237(2), substituted by No. 29/2010 s. 29(1), amended by No. 15/2015 s. 37(16)(a).\n\n(1) A court must request the Secretary to the Department of Health and Human Services to provide the court with a certificate of available services if the court is considering—\n\n(a) imposing a supervision order on a person—\n\nS. 47(1)(a)(i) amended by Nos 15/2015 s. 37(16)(b)(i), 19/2019 s. 244(1).\n\n(i) committing a person to custody in a designated mental health service or a residential treatment facility; or\n\nS. 47(1)(a)(ii) amended by Nos 15/2015 s. 37  \n(16)(a)(b)(ii), 19/2019 s. 244(1), 39/2022 s. 817.\n\n(ii) providing for a person to receive services in a designated mental health service or a residential treatment facility or from a disability services provider, a mental health and wellbeing service provider within the meaning of the **Mental Health** **and Wellbeing Act 2022** or the Secretary to the Department of Health and Human Services; or\n\nS. 47(1)(ab) inserted by No. 55/2014 s. 128(1).\n\n(ab) imposing a supervision order on a child—\n\n(i) committing the child to custody in a youth justice centre or a youth residential centre; or\n\nS. 47(1)(ab)(ii) amended by Nos 15/2015 s. 37(16)(a)(c), 39/2022 s. 817.\n\n(ii) providing for the child to receive services in a youth justice centre or a youth residential centre or from a disability services provider, a mental health and wellbeing service provider within the meaning of the **Mental Health** **and Wellbeing Act 2022** or the Secretary to the Department of Health and Human Services; or\n\n(b) making another order under this Act—\n\nS. 47(1)(b)(i) amended by Nos 15/2015 s. 37(16)(d), 19/2019 s. 144(2).\n\n(i) that a person be placed in custody in a designated mental health service or a residential treatment facility; or\n\nS. 47(1)(b)(ii) amended by Nos 55/2014 s. 128(2)(a), 15/2015 s. 37(16)(a)(e), 19/2019 s. 144(3), 39/2022 s. 817.\n\n(ii) that a person otherwise receive treatment or services in a designated mental health service, a residential treatment facility or from a disability services provider, a mental health and wellbeing service provider within the meaning of the **Mental Health** **and Wellbeing Act 2022** or the Secretary to the Department of Health and Human Services; or\n\nS. 47(1)(b)(iii) inserted by No. 55/2014 s. 128(2)(b).\n\n(iii) that a child be placed in custody in a youth justice centre or a youth residential centre.\n\nS. 47(1A) inserted by No. 29/2010 s. 29(1), amended by Nos 26/2014 s. 440, 55/2014 s. 128(3), repealed by No. 15/2015 s. 37(17).\n\n(2) A certificate of available services must—\n\n(a) state whether or not there are facilities or services available for the custody, care or treatment of the person (as the case requires); and\n\n(b) if there are, give an outline of those facilities or services.\n\nS. 47(3) substituted by No. 29/2010 s. 29(2), amended by No. 15/2015 s. 37(18)(a).\n\n(3) If there are no facilities or services available, the certificate may contain any other options that the Secretary to the Department of Health and Human Services considers appropriate for the court to consider in making the proposed order.\n\nS. 47(4) amended by Nos 29/2010 s. 29(3), 15/2015 s. 37(18)(b).\n\n(4) The Secretary to the Department of Health and Human Services must provide a certificate to the court within 7 days after receiving a request under subsection (1) or within such longer period as the court allows.\n\nS. 47(5) amended by Nos 29/2010 s. 29(4), 15/2015 s. 37(18)(b).\n\n(5) The court may require the Secretary to the Department of Health and Human Services to give evidence or to provide the court with a further certificate to clarify or expand on the matters dealt with in a certificate under this section.\n\n","sortOrder":104},{"sectionNumber":"Part 7","sectionType":"part","heading":"Leave of absence","content":"Part 7—Leave of absence\n\nDivision 1—Leave of absence\n\nS. 48 amended by No. 44/2004 s. 8 (ILA s. 39B(1)).\n\n","sortOrder":105},{"sectionNumber":"48","sectionType":"section","heading":"Application of Division","content":"\t48 Application of Division\n\nS. 48(1) amended by No. 69/2005 s. 27(1)(a)(i)(ii).\n\n(1) This Division applies in relation to forensic patients and forensic residents.\n\nS. 48(2) inserted by No. 44/2004 s. 8.\n\n(2) The Division also applies in relation to federal forensic patients.\n\n","sortOrder":106},{"sectionNumber":"49","sectionType":"section","heading":"What types of leave may be granted?","content":"\t49 What types of leave may be granted?\n\nThe types of leave of absence that may be granted to a forensic patient or forensic resident are—\n\n(a) special leave of absence;\n\n(b) on-ground leave;\n\n(c) limited off-ground leave;\n\nS. 49(d) amended by No. 44/2004 s. 9(1), substituted by No. 69/2005 s. 27(1)(b).\n\n(d) extended leave.\n\nNote to s. 49 inserted by No. 69/2005 s. 27(1)(c).\n\nSome forensic patients and forensic residents cannot be granted extended leave—see section 57(4).\n\n","sortOrder":107},{"sectionNumber":"50","sectionType":"section","heading":"Special leave","content":"\t50 Special leave\n\n(1) A forensic patient or forensic resident, or a person on their behalf, may apply for special leave of absence, specifying the special circumstances for which the leave is required.\n\n(2) An application is to be made—\n\nS. 50(2)(a) amended by No. 26/2014 s. 441.\n\n(a) in the case of a forensic patient, to the authorised psychiatrist for the designated mental health service;\n\nS. 50(2)(b) amended by No. 15/2015 s. 37(19).\n\n(b) in the case of a forensic resident, to the Secretary to the Department of Health and Human Services.\n\nS. 50(3) amended by No. 15/2015 s. 37(19).\n\n(3) The authorised psychiatrist or Secretary to the Department of Health and Human Services must grant an application for special leave of absence if satisfied that—\n\n(a) there are special circumstances; and\n\n(b) the safety of members of the public will not be seriously endangered.\n\nS. 50(4) amended by No. 15/2015 s. 37(19).\n\n(4) If the authorised psychiatrist or Secretary to the Department of Health and Human Services refuses to grant special leave of absence to a forensic patient or forensic resident, the forensic patient or forensic resident may appeal to the Panel.\n\n(5) On an appeal, the Panel may—\n\nS. 50(5)(a) amended by No. 15/2015 s. 37(19).\n\n(a) confirm the decision of the authorised psychiatrist or Secretary to the Department of Health and Human Services; or\n\n(b) direct that the forensic patient or forensic resident be allowed special leave of absence.\n\n(6) Special leave of absence—\n\nS. 50(6)(a) substituted by No. 7/2002 s. 23.\n\n(a) cannot exceed—\n\n(i) 7 days in the case of special leave of absence for medical treatment; or\n\n(ii) 24 hours in any other case; and\n\nS. 50(6)(b) amended by No. 15/2015 s. 37(19).\n\n(b) may be subject to such conditions as the authorised psychiatrist or Secretary to the Department of Health and Human Services or the Panel may specify.\n\n","sortOrder":108},{"sectionNumber":"51","sectionType":"section","heading":"What is on-ground leave?","content":"\t51 What is on-ground leave?\n\nOn-ground leave allows a forensic patient or forensic resident to be absent from the place of custody but within the surrounds.\n\n","sortOrder":109},{"sectionNumber":"52","sectionType":"section","heading":"What are the surrounds?","content":"\t52 What are the surrounds?\n\nS. 52(1) amended by Nos 29/2010 s. 30(1), 26/2014 s. 442(1), 19/2019 s. 245(1).\n\n(1) The ***surrounds***, in relation to a designated mental health service or a residential treatment facility, is the area declared under subsection (2) to be the surrounds in relation to that service.\n\nS. 52(2) amended by Nos 29/2010 s. 30, 26/2014 s. 442(2), 19/2019 s. 245(2).\n\n(2) The Governor-in-Council, by notice published in the Government Gazette, may declare an area surrounding or adjacent to a designated mental health service or a residential treatment facility to be the surrounds in relation to that designated mental health service or residential treatment facility.\n\n","sortOrder":110},{"sectionNumber":"53","sectionType":"section","heading":"What is limited off-ground leave?","content":"\t53 What is limited off-ground leave?\n\nLimited off-ground leave allows a forensic patient or forensic resident to be absent from the place of custody—\n\nS. 53(a) substituted by No. 7/2002 s. 24(a).\n\n(a) between the hours of 6.00 am and 9.00 pm; and\n\nS. 53(b) amended by No. 7/2002 s. 24(b).\n\n(b) outside those hours on a maximum of 3 days in any 7 day period.\n\nS. 54 substituted by No. 7/2002 s. 25.\n\n","sortOrder":111},{"sectionNumber":"54","sectionType":"section","heading":"Granting of on-ground or limited off-ground leave","content":"\t54 Granting of on-ground or limited off-ground leave\n\n(1) An application may be made to the Panel for on‑ground leave or limited off-ground leave for a forensic patient or forensic resident, or for variation of that leave—\n\nS. 54(1)(a) amended by No. 26/2014 s. 443.\n\n(a) in the case of a forensic patient, by the forensic patient or the authorised psychiatrist for the designated mental health service;\n\nS. 54(1)(b) amended by No. 15/2015 s. 37(19).\n\n(b) in the case of a forensic resident, by the forensic resident or the Secretary to the Department of Health and Human Services.\n\n(2) The Panel may grant an application for on-ground leave or limited off-ground leave if satisfied on the evidence available that—\n\n(a) the proposed leave will contribute to the person's rehabilitation; and\n\n(b) the safety of the person or members of the public will not be seriously endangered as a result of the person being allowed leave.\n\n(3) The Panel may grant an application for variation of on-ground leave or limited off-ground leave if satisfied on the evidence available that—\n\n(a) the proposed variation will contribute to the person's rehabilitation; and\n\n(b) the safety of the person or members of the public will not be seriously endangered as a result of the leave being varied; and\n\n(c) there has been a significant alteration in the person's circumstances since leave was granted or last varied.\n\n(4) In determining whether or not to grant an application for leave or variation of leave, the Panel must—\n\n(a) have regard primarily to the person's current mental condition or pattern of behaviour; and\n\n(b) consider the person's clinical history and social circumstances; and\n\n(c) have regard to the applicant profile provided under section 54A and the leave plan or statement provided under section 54B.\n\nS. 54(5) amended by No. 15/2015 s. 37(19).\n\n(5) The Panel may impose any conditions it considers appropriate on a grant or variation of on-ground leave or limited off-ground leave, including a condition that the person on leave comply with any direction of the authorised psychiatrist (in the case of a forensic patient) or the Secretary to the Department of Health and Human Services (in the case of a forensic resident).\n\n(6) The maximum period for which on-ground or limited off-ground leave can be granted is 6 months.\n\n(7) An application for on-ground or limited off-ground leave can be made and granted under this section more than once, and that leave can be varied more than once, but only one grant or variation can be in force at any one time in respect of a forensic patient or forensic resident.\n\nS. 54A inserted by No. 7/2002 s. 25.\n\n","sortOrder":112},{"sectionNumber":"54A","sectionType":"section","heading":"Applicant profile","content":"\t54A Applicant profile\n\n(1) If an application is made for on-ground leave or limited off-ground leave, or for variation of that leave, an applicant profile must be provided to the Panel by—\n\nS. 54A(1)(a) substituted by No. 26/2014 s. 444.\n\n(a) the authorised psychiatrist for the designated mental health service, in the case of a forensic patient detained in that designated mental health service; or\n\nS. 54A(1)(b) repealed by No. 26/2014 s. 444.\n\nS. 54A(1)(c) amended by No. 15/2015 s. 37(19).\n\n(c) the Secretary to the Department of Health and Human Services, in the case of a forensic resident.\n\n(2) The applicant profile must include information concerning—\n\n(a) the person's impairment, condition or disability; and\n\n(b) the relationship between the impairment, condition or disability and the offending conduct; and\n\n(c) the person's clinical history and social circumstances; and\n\n(d) the person's current mental state or pattern of behaviour; and\n\n(e) the offence that led to the supervision order being made; and\n\n(f) the date of the supervision order, its nominal term and the day from which the nominal term had been declared to run.\n\nS. 54B inserted by No. 7/2002 s. 25.\n\n","sortOrder":113},{"sectionNumber":"54B","sectionType":"section","heading":"Leave plan or statement","content":"\t54B Leave plan or statement\n\nS. 54B(1) amended by No. 26/2014 s. 445(2).\n\n(1) If an application is made for on-ground leave or limited off-ground leave, or for variation of that leave, a leave plan must be provided to the Panel by—\n\nS. 54B(1)(a) substituted by No. 26/2014 s. 445(1).\n\n(a) the authorised psychiatrist for the designated mental health service, in the case of a forensic patient detained in that designated mental health service; or\n\nS. 54B(1)(b) repealed by No. 26/2014 s. 445(1).\n\nS. 54B(1)(c) amended by No. 15/2015 s. 37(19).\n\n(c) the Secretary to the Department of Health and Human Services, in the case of a forensic resident—\n\nunless the authorised psychiatrist or Secretary considers that the application should not be granted.\n\n(2) The leave plan must include information concerning—\n\n(a) the purpose of the leave applied for and how it will contribute to the person's rehabilitation; and\n\n(b) any proposed conditions of leave; and\n\nS. 54B(2)(c) amended by No. 26/2014 s. 445(2).\n\n(c) any other information the authorised psychiatrist or Secretary considers relevant; and\n\n(d) any other information requested by the Panel.\n\nS. 54B(3) amended by No. 26/2014 s. 445(2).\n\n(3) If the authorised psychiatrist or Secretary considers that the application should not be granted, he or she must provide a written statement to the Panel containing—\n\n(a) the reasons why the application should not be granted; and\n\nS. 54B(3)(b) amended by No. 26/2014 s. 445(2).\n\n(b) any other information the authorised psychiatrist or Secretary considers relevant; and\n\n(c) any other information requested by the Panel.\n\n","sortOrder":114},{"sectionNumber":"55","sectionType":"section","heading":"Suspension of special leave, on-ground leave or limited off‑ground leave","content":"\t55 Suspension of special leave, on-ground leave or limited off‑ground leave\n\nS. 55(1) amended by Nos 7/2002 s. 26(1)(a)(b), 15/2015 s. 37(19).\n\n(1) Special leave of absence, on-ground leave or limited off-ground leave may be suspended wholly or partly at any time by the chief psychiatrist (in the case of a forensic patient) or the Secretary to the Department of Health and Human Services (in the case of a forensic resident) if the chief psychiatrist or Secretary is satisfied on the evidence available that the safety of the person on leave or members of the public will be seriously endangered if leave, or part of the leave is not suspended.\n\nS. 55(2) amended by No. 7/2002 s. 26(2)(a).\n\n(2) If leave is suspended, the chief psychiatrist or Secretary must confirm the suspension in writing to the person in respect of whom the leave is suspended.\n\n(3) If the chief psychiatrist or Secretary is satisfied that the reason for the suspension no longer exists, he or she must lift the suspension immediately.\n\n(4) The chief psychiatrist or Secretary must give notice to the person or body that granted the leave of any suspension or lifting of suspension under this section (except where the Secretary suspends special leave that he or she granted).\n\nS. 55(5) amended by No. 7/2002 s. 26(2)(b).\n\n(5) A person whose leave is wholly suspended under this section is deemed not to have leave of absence during the period of suspension.\n\nS. 55(6) inserted by No. 7/2002 s. 26(3).\n\n(6) A person whose leave is partly suspended under this section is deemed not to have the suspended part of the leave of absence during the period of suspension.\n\nS. 56 amended by No. 44/2004 s. 9(2) (ILA s. 39B(1)).\n\n","sortOrder":115},{"sectionNumber":"56","sectionType":"section","heading":"What is extended leave?","content":"\t56 What is extended leave?\n\n(1) Extended leave is leave for a forensic patient or forensic resident to be absent from the place of custody—\n\n(a) for the period, not exceeding 12 months; and\n\n(b) subject to the conditions (if any)—\n\nspecified by the court.\n\nS. 56(2) inserted by No. 44/2004 s. 9(2), repealed by No. 69/2005 s. 27(1)(d).\n\nS. 57 substituted by No. 7/2002 s. 27.\n\n","sortOrder":116},{"sectionNumber":"57","sectionType":"section","heading":"Granting of extended leave","content":"\t57 Granting of extended leave\n\nS. 57(1) amended by No. 10/2005 s. 3(Sch. 1 item 7).\n\n(1) An application for extended leave for a forensic patient or forensic resident may be made to the court that made the supervision order to which they are subject—\n\nS. 57(1)(a) amended by No. 26/2014 s. 446(1).\n\n(a) in the case of a forensic patient, by the forensic patient or the authorised psychiatrist for the designated mental health service;\n\nS. 57(1)(b) amended by No. 15/2015 s. 37(19).\n\n(b) in the case of a forensic resident, by the forensic resident or the Secretary to the Department of Health and Human Services.\n\n(2) The court may grant an application under subsection (1) if satisfied on the evidence available that the safety of the forensic patient or forensic resident or members of the public will not be seriously endangered as a result of the forensic patient or forensic resident being allowed extended leave.\n\nSections 39 and 40 set out certain other principles and matters that the court must apply and have regard to in considering applications for extended leave.\n\n(3) An application for extended leave can be made and granted more than once.\n\nS. 57(4) substituted by No. 69/2005 s. 27(2).\n\n(4) This section does not apply to—\n\n(a) a forensic patient who is—\n\nS. 57(4)(a)(i) amended by No. 26/2014 s. 446(2).\n\n(i) remanded in custody in a designated mental health service under this Act; or\n\nS. 57(4)(a)(ii) amended by No. 26/2014 s. 446(2).\n\n(ii) detained in a designated mental health service under section 30(2) or 30A(3); or\n\n(iii) deemed to be a forensic patient by section 73E(4) or 73K(8); or\n\nS. 57(4)(a)(iv) amended by No. 26/2014 s. 446(2).\n\n(iv) detained in a designated mental health service under section 20BJ(1) or 20BM of the Crimes Act 1914 of the Commonwealth; or\n\n(b) a forensic resident who is—\n\n(i) remanded in custody in a residential service under this Act; or\n\n(ii) detained in a residential service under section 30(2) or 30A(3); or\n\n(iii) deemed to be a forensic resident by section 73E(4) or 73K(8).\n\nS. 57A inserted by No. 7/2002 s. 27.\n\n","sortOrder":117},{"sectionNumber":"57A","sectionType":"section","heading":"Leave plan for extended leave","content":"\t57A Leave plan for extended leave\n\nIf an application is made to the court for extended leave, a leave plan must be prepared and filed with the court by—\n\nS. 57A(a) amended by No. 26/2014 s. 447.\n\n(a) in the case of a forensic patient—the authorised psychiatrist for the designated mental health service;\n\nS. 57A(b) amended by No. 15/2015 s. 37(19).\n\n(b) in the case of a forensic resident—the Secretary to the Department of Health and Human Services.\n\nS. 57B inserted by No. 7/2002 s. 27.\n\n","sortOrder":118},{"sectionNumber":"57B","sectionType":"section","heading":"Appeals regarding extended leave","content":"\t57B Appeals regarding extended leave\n\n(1) A person may appeal to the Court of Appeal against a refusal to grant the person extended leave.\n\nS. 57B(2) amended by Nos 29/2010 s. 31(1), 15/2015 s. 37(20).\n\n(2) The Secretary to the Department of Health and Human Services may appeal to the Court of Appeal against a grant of extended leave to a forensic resident or a forensic patient if the Secretary considers that—\n\n(a) extended leave should not have been granted; and\n\nS. 57B(2A) inserted by No. 29/2010 s. 31(2), repealed by No. 15/2015 s. 37(21).\n\n(3) The Director of Public Prosecutions or the Attorney-General may appeal to the Court of Appeal against a grant of extended leave if he or she—\n\n(a) was a party to the proceeding in which extended leave was granted; and\n\n(b) considers that extended leave should not have been granted; and\n\nS. 57B(3A) inserted by No. 68/2009 s. 97(Sch. item 39.38).\n\n(3A) An appeal under this section is commenced by filing a notice of appeal in accordance with the rules of court within 28 days after the day on which extended leave is granted or refused (as the case requires) or any extension of that period granted under section 76C.\n\nS. 57B(3B) inserted by No. 68/2009 s. 97(Sch. item 39.38).\n\n(3B) If the appeal is commenced under subsection (1), the Registrar of Criminal Appeals of the Supreme Court must provide to the respondent a copy of the notice of appeal within 7 days after the day on which the notice of appeal is filed.\n\nS. 57B(3C) inserted by No. 68/2009 s. 97(Sch. item 39.38), amended by Nos 29/2010 s. 31(3), 15/2015 s. 37(22).\n\n(3C) If the appeal is commenced by the Secretary to the Department of Health and Human Services, the Director of Public Prosecutions or the Attorney‑General—\n\n(b) a copy of the notice of appeal must be served personally on the respondent in accordance with section 391 of the **Criminal Procedure Act 2009** within 7 days after the day on which the notice of appeal is filed; and\n\n(c) that person must provide a copy of the notice of appeal to the legal practitioner who last represented the respondent in the application for extended leave, if that legal practitioner can reasonably be identified.\n\n(4) On an appeal against a refusal to grant extended leave, the Court of Appeal may—\n\n(a) confirm the refusal to grant extended leave; or\n\n(b) grant extended leave in accordance with section 57; or\n\n(c) remit the matter, with or without directions, to the court that refused to grant extended leave.\n\n(5) On an appeal against a grant of extended leave, the Court of Appeal may—\n\n(a) confirm the grant of extended leave; or\n\nS. 57B(5)(b) amended by No. 68/2009 s. 97(Sch. item 39.39).\n\n(b) set aside the grant and order that extended leave be refused; or\n\nS. 57B(5)(c) amended by No. 68/2009 s. 97(Sch. item 39.39).\n\n(c) set aside the grant and remit the matter, with or without directions, to the court that made the grant.\n\n(6) If the Court of Appeal remits a matter to a court under subsection (4)(c) or (5)(c), that court must hear and determine the matter in accordance with this Act and any directions given by the Court of Appeal.\n\nS. 58 (Heading) inserted by No. 7/2002 s. 28(1).\n\n","sortOrder":119},{"sectionNumber":"58","sectionType":"section","heading":"Suspension and revocation of extended leave","content":"\t58 Suspension and revocation of extended leave\n\nS. 58(1) amended by No. 15/2015 s. 37(23).\n\n(1) Extended leave may be suspended at any time by the chief psychiatrist (in the case of a forensic patient) or the Secretary to the Department of Health and Human Services (in the case of a forensic resident) if the chief psychiatrist or Secretary is satisfied on the evidence available that the safety of the person on leave or members of the public will be seriously endangered if leave is not suspended.\n\n(2) If extended leave is suspended, the chief psychiatrist or Secretary must—\n\n(a) confirm the suspension in writing to the person formerly on leave; and\n\n(b) subject to subsection (5), within 48 hours after the suspension—\n\n(i) make an application to the court that granted the leave for revocation of the leave; or\n\n(ii) lift the suspension.\n\n(3) The court must hear an application referred to in subsection (2)(b)(i) as soon as possible.\n\n(4) On an application under subsection (2)(b)(i) the court may—\n\n(a) if satisfied on the evidence available that the safety of the forensic patient or forensic resident or members of the public will be seriously endangered if the suspension is not confirmed or leave is not revoked, revoke the leave; or\n\n(b) if not satisfied, lift the suspension.\n\n(5) If the chief psychiatrist or Secretary is satisfied that the reason for the suspension no longer exists, he or she must lift the suspension immediately.\n\n(6) A person whose leave is suspended under this section is deemed not to have leave of absence during the period of suspension.\n\nNote to s. 58(6) inserted by No. 7/2002 s. 28(2), amended by Nos 26/2014 s. 448, 39/2022 s. 818 (as amended by No. 20/2023 s. 49(6)).\n\nThere are provisions for the apprehension of persons absent without leave in section 221, Part 5.3 and sections 547A and 576A of the **Mental Health and Wellbeing Act 2022** and section 160 of the **Disability Act 2006** (for forensic residents). See also section 30B of this Act, which provides for warrants to be issued for the arrest of a person who is no longer in Victoria.\n\nS. 58A inserted by No. 7/2002 s. 29.\n\n","sortOrder":120},{"sectionNumber":"58A","sectionType":"section","heading":"Appeals regarding revocation of extended leave","content":"\t58A Appeals regarding revocation of extended leave\n\n(1) A person may appeal to the Court of Appeal against a revocation of that person's extended leave.\n\nS. 58A(2) amended by Nos 29/2010 s. 32(1), 15/2015 s. 37(24).\n\n(2) The Secretary to the Department of Health and Human Services may appeal to the Court of Appeal against a refusal to revoke extended leave granted to a forensic resident or a forensic patient if the Secretary considers that—\n\n(a) the extended leave should have been revoked; and\n\nS. 58A(2A) inserted by No. 29/2010 s. 32(2), repealed by No 15/2015 s. 37(25).\n\n(3) The Director of Public Prosecutions or the Attorney-General may appeal to the Court of Appeal against a refusal to revoke extended leave if he or she—\n\n(a) was a party to the proceeding for revocation of extended leave; and\n\n(b) considers that the extended leave should have been revoked; and\n\nS. 58A(3A) inserted by No. 68/2009 s. 97(Sch. item 39.40).\n\n(3A) An appeal under this section is commenced by filing a notice of appeal in accordance with the rules of court within 28 days after the day on which extended leave is revoked or revocation of the extended leave is refused (as the case requires) or any extension of that period granted under section 76C.\n\nS. 58A(3B) inserted by No. 68/2009 s. 97(Sch. item 39.40).\n\n(3B) If the appeal is commenced under subsection (1), the Registrar of Criminal Appeals of the Supreme Court must provide to the respondent a copy of the notice of appeal within 7 days after the day on which the notice of appeal is filed.\n\nS. 58A(3C) inserted by No. 68/2009 s. 97(Sch. item 39.40), amended by Nos 29/2010 s. 32(3), 15/2015 s. 37(26).\n\n(3C) If the appeal is commenced by the Secretary to the Department of Health and Human Services, the Director of Public Prosecutions or the Attorney‑General—\n\n(b) a copy of the notice of appeal must be served personally on the respondent in accordance with section 391 of the **Criminal Procedure Act 2009** within 7 days after the day on which the notice of appeal is filed; and\n\n(c) that person must provide a copy of the notice of appeal to the legal practitioner who last represented the respondent in the application for revocation of extended leave, if that legal practitioner can reasonably be identified.\n\n(4) On an appeal against a revocation of extended leave, the Court of Appeal may—\n\n(a) confirm the revocation of extended leave; or\n\nS. 58A(4)(b) amended by No. 68/2009 s. 97(Sch. item 39.41).\n\n(b) set aside the revocation and restore the extended leave; or\n\n(c) remit the matter, with or without directions, to the court that revoked the leave.\n\n(5) On an appeal against a refusal to revoke extended leave, the Court of Appeal may—\n\n(a) confirm the refusal to revoke extended leave; or\n\n(b) revoke the extended leave in accordance with section 58(4)(a); or\n\n(c) revoke the extended leave and remit the matter, with or without directions, to the court that made the grant.\n\n(6) If the Court of Appeal remits a matter to a court under subsection (4)(c) or (5)(c), that court must hear and determine the matter in accordance with this Act and any directions given by the Court of Appeal.\n\nDivision 2—Forensic Leave Panel\n\n","sortOrder":121},{"sectionNumber":"59","sectionType":"section","heading":"Establishment of Panel","content":"\t59 Establishment of Panel\n\n(1) The Forensic Leave Panel is established.\n\n(2) The Panel consists of—\n\n(a) one or more judges of the Supreme Court, nominated by the Chief Justice of the Supreme Court;\n\n(b) one or more judges of the County Court, nominated by the Chief Judge of the County Court;\n\n(c) the chief psychiatrist or his or her nominee;\n\n(d) such other members as are necessary from time to time for the proper functioning of the Panel.\n\n(3) Schedule 1 has effect with respect to members of the Panel.\n\n(4) If there is only one Supreme Court judge on the Panel, he or she is the President of the Panel.\n\n(5) If the Chief Justice nominates more than one Supreme Court judge to the Panel, the Chief Justice must nominate one of the judges as President of the Panel.\n\n","sortOrder":122},{"sectionNumber":"60","sectionType":"section","heading":"Functions of the Panel","content":"\t60 Functions of the Panel\n\nThe functions of the Panel are—\n\nS. 60(a) amended by Nos 44/2004 s. 10, 69/2005 s. 27(3).\n\n(a) to hear applications for leave of absence, and appeals in respect of special leave of absence applications, by forensic patients and forensic residents;\n\n(b) any other functions conferred on the Panel by or under this or any other Act.\n\nS. 61 substituted by No. 46/1998 s. 7(Sch. 1), amended by No. 108/2004 s. 117(1) (Sch. 3 item 50.1).\n\n","sortOrder":123},{"sectionNumber":"61","sectionType":"section","heading":"Staff","content":"\t61 Staff\n\nAny employees that are necessary for the purposes of the Panel may be employed under Part 3 of the **Public Administration Act 2004**.\n\n","sortOrder":124},{"sectionNumber":"62","sectionType":"section","heading":"Secrecy","content":"\t62 Secrecy\n\n(1) A person who—\n\n(a) is or has at any time been a member or acting member of the Panel; or\n\n(b) is or has been present at any proceeding of the Panel—\n\nmust not, either directly or indirectly, make a record of, or divulge or communicate to any person, any information that is or was acquired by the person by reason of being or having been a member or acting member of the Panel or present at a proceeding of the Panel, except as permitted by this section.\n\n1. 10 penalty units.\n\n(2) A person referred to in subsection (1) may make a record of, or divulge or communicate information referred to in subsection (1)—\n\n(a) to the extent necessary to perform his or her official duties or to perform a function or exercise a power under this Act; or\n\n(b) in the case of information relating to the personal affairs of another person, if that other person has given written consent to the making of the record or the divulging or communicating of the information.\n\n(3) Subsection (1) does not prevent a person producing a document or divulging information to a court in the course of criminal proceedings or proceedings under this Act.\n\n","sortOrder":125},{"sectionNumber":"63","sectionType":"section","heading":"Annual Report","content":"\t63 Annual Report\n\n(1) As soon as practicable after the end of each calendar year, the Panel must submit a report to the Minister that includes the following information—\n\n(a) the number and type of leave applications—\n\n(i) made to the Panel during that year; and\n\n(ii) granted by the Panel during that year; and\n\n(iii) refused by the Panel during that year; and\n\n(b) the number of suspensions during that year of leave granted by the Panel and the type of leave suspended.\n\n(2) The Minister must cause each report under subsection (1) to be laid before each House of the Parliament within 14 sitting days of that House after it is received by the Minister.\n\nDivision 3—Procedure of Panel\n\n","sortOrder":126},{"sectionNumber":"64","sectionType":"section","heading":"Procedure of the Panel","content":"\t64 Procedure of the Panel\n\n(1) The Panel—\n\n(a) in hearing any matter, must act according to equity and good conscience without regard to technicalities or legal forms;\n\n(b) is bound by the rules of natural justice;\n\n(c) is not required to conduct any proceedings in a formal manner.\n\n(2) Schedule 2 has effect with respect to the procedure of the Panel.\n\n","sortOrder":127},{"sectionNumber":"65","sectionType":"section","heading":"Evidence","content":"\t65 Evidence\n\n(1) The Panel is not bound by rules or practice as to evidence but may inform itself in relation to any matter in such manner as it thinks fit.\n\n(2) Evidence before the Panel—\n\n(a) may be given orally or in writing or partly orally and partly in writing; and\n\n(b) may be given on oath or by declaration.\n\nS. 65(3) amended by No. 6/2018 s. 68(Sch. 2 item 36.3).\n\n(3) A member of the Panel may administer an oath or affirmation or declaration for the purposes of this Act.\n\nS. 65(4) amended by No. 68/2009 s. 97(Sch. item 39.42).\n\n(4) The Panel, on its own initiative or on the application of an applicant for leave, may cause to be served on any person a summons to attend before the Panel to give evidence or produce documents specified in the summons.\n\n(5) The Panel may make an order for the manner of service, including substituted service, of a summons under subsection (4).\n\n(6) A person must not, without reasonable excuse, fail to comply with a summons.\n\n1. 5 penalty units.\n\n","sortOrder":128},{"sectionNumber":"66","sectionType":"section","heading":"Reasons","content":"\t66 Reasons\n\n(1) The Panel must give reasons for any determination made in relation to a matter before it.\n\n(2) If the Panel gives oral reasons, the applicant may request it to put them in writing.\n\n(3) The Panel must comply with a request under subsection (2) within 14 days after the request is made.\n\n(4) If the Panel rejects an application for leave, it must inform the applicant in writing of the applicant's right to request written reasons for the rejection.\n\nS. 67 amended by No. 26/2014 s. 449.\n\n","sortOrder":129},{"sectionNumber":"67","sectionType":"section","heading":"Appointment of people to assist the Panel","content":"\t67 Appointment of people to assist the Panel\n\nThe Panel may appoint a legal practitioner, an interpreter, a registered medical practitioner or a registered psychologist to assist it in any proceeding before it.\n\n","sortOrder":130},{"sectionNumber":"68","sectionType":"section","heading":"Notice of hearings","content":"\t68 Notice of hearings\n\n(1) The Panel must cause notice of a hearing to be given to the applicant for leave.\n\n(2) A notice of hearing must contain information with respect to—\n\n(a) the time and place of the hearing; and\n\n(b) the procedure of the Panel; and\n\n(c) the right for the applicant to be legally represented.\n\n(3) The notice required to be given to an applicant under this section must be given personally to the applicant in accordance with this section unless the Panel determines otherwise.\n\n(4) The contents of the notice must be explained by the person giving it to the applicant to the maximum extent possible to the applicant in the language, mode of communication and terms which the applicant is most likely to understand.\n\n(5) An explanation given under subsection (4) must, if possible, be given both orally and in writing.\n\n","sortOrder":131},{"sectionNumber":"69","sectionType":"section","heading":"Hearing not invalidated due to lack of notice","content":"\t69 Hearing not invalidated due to lack of notice\n\nA hearing or determination of the Panel is not invalidated or affected by reason only of a failure to give notice to a person other than the applicant for leave.\n\n","sortOrder":132},{"sectionNumber":"70","sectionType":"section","heading":"Appearance and representation at Panel hearings","content":"\t70 Appearance and representation at Panel hearings\n\n(1) An applicant for leave is entitled to appear in person before the Panel and may be represented by a legal practitioner or any other person authorised to that effect by the applicant.\n\n(2) If an applicant decides not to appear, the Panel must satisfy itself that the applicant has made the decision of their own free will.\n\n(3) At any hearing of the Panel—\n\n(a) a person other than the applicant for leave who is given notice of the hearing may appear before the Panel in person and be heard or, if the person is unable to be present at the hearing and the Panel allows, may be represented before the Panel by any person authorised to that effect by the person; and\n\n(b) any other person who wishes to be heard and whom the Panel agrees to hear may appear before the Panel in person and be heard.\n\n(4) Unless the Panel makes an order under subsection (5), the applicant or a person representing the applicant is entitled to inspect any documents to be given to the Panel in connection with the hearing at least 24 hours before the commencement of the hearing.\n\nS. 70(5) amended by No. 15/2015 s. 37(27).\n\n(5) On an application made by or on behalf of the authorised psychiatrist or Secretary to the Department of Health and Human Services, the Panel may order that the applicant is not entitled to inspect any document or part of a document personally, if the Panel is satisfied that inspection would—\n\n(a) cause serious harm to the applicant's health or the health or safety of another person; or\n\n(b) involve the unreasonable disclosure of information relating to the personal affairs of any person; or\n\n(c) breach a confidentiality provision imposed by a person who supplied information that is contained in the document.\n\n(6) The Panel may permit a person representing the applicant before the Panel to inspect a document, or part of a document, to which an order made under subsection (5) applies.\n\n","sortOrder":133},{"sectionNumber":"71","sectionType":"section","heading":"Proceedings to be closed to public","content":"\t71 Proceedings to be closed to public\n\n(1) Unless subsection (2) applies, proceedings before the Panel are closed to members of the public.\n\n(2) The Panel may direct that particular proceedings or any part of them are to be open to the public if the Panel is satisfied that it would be in the best interests of the applicant for leave or in the public interest.\n\nS. 71(3) amended by No. 43/1998 s. 40(a).\n\n(3) A direction under subsection (2) may be given subject to any conditions the Panel considers appropriate.\n\n","sortOrder":134},{"sectionNumber":"72","sectionType":"section","heading":"Protection of members etc.","content":"\t72 Protection of members etc.\n\n(1) A member or acting member of the Panel has, in the exercise of powers or performance of functions or duties as a member or acting member, the same protection and immunity as a judge of the Supreme Court.\n\n(2) A legal practitioner or other person appearing before the Panel on behalf of a party has the same protection and immunity as a legal practitioner has in appearing for a party in proceedings in the Supreme Court.\n\nS. 72(3) amended by No. 68/2009 s. 97(Sch. item 39.43).\n\n(3) A person summoned to attend or attending before the Panel as a witness has the same protection and is, in addition to the penalties provided by this Act, subject to the same liabilities, as a witness in proceedings in the Supreme Court.\n\n","sortOrder":135},{"sectionNumber":"73","sectionType":"section","heading":"Offences","content":"\t73 Offences\n\nA person must not—\n\n(a) insult a member of the Panel in or in relation to the exercise of the powers or functions as a member; or\n\n(b) repeatedly interrupt the proceedings of the Panel; or\n\n(c) create a disturbance or take part in creating a disturbance in or near a place where the Panel is sitting; or\n\n(d) do any other act or thing that would, if the Panel were a court of record, constitute a contempt of that court.\n\n1. 10 penalty units.\n\nPt 7A (Heading and ss 73A–73H) inserted by No. 7/2002 s. 30.\n\n","sortOrder":136},{"sectionNumber":"Part 7A","sectionType":"part","heading":"Interstate transfer of persons subject to supervision orders","content":"Part 7A—Interstate transfer of persons subject to supervision orders\n\nS. 73A inserted by No. 7/2002 s. 30.\n\n","sortOrder":137},{"sectionNumber":"73A","sectionType":"section","heading":"Definitions","content":"\t73A Definitions\n\n***corresponding law*** means a law that, under an order in force under section 73B, is declared to be a corresponding law for the purposes of this Part;\n\n***corresponding Minister***, in relation to a participating State means the Minister or Ministers of that State who is or are responsible for the administration of the corresponding law of that State;\n\n***interstate supervision order*** means an order of a type that is declared to be an interstate supervision order under an order in force under section 73B, for the purposes of this Part;\n\n***participating State*** means a State in which a corresponding law is in force;\n\n***State*** includes Territory;\n\n***Victorian Minister*** means the Minister administering this Part or, if there is more than one Minister administering this Part, those Ministers acting jointly.\n\nS. 73B inserted by No. 7/2002 s. 30.\n\n","sortOrder":138},{"sectionNumber":"73B","sectionType":"section","heading":"Corresponding laws and orders","content":"\t73B Corresponding laws and orders\n\nThe Governor in Council on the recommendation of the Victorian Minister, by Order published in the Government Gazette, may declare—\n\n(a) that a law of a State (other than this State) is a corresponding law for the purposes of this Part;\n\n(b) that a type of order under the law of a participating State is an interstate supervision order for the purposes of this Part.\n\nS. 73C inserted by No. 7/2002 s. 30.\n\n","sortOrder":139},{"sectionNumber":"73C","sectionType":"section","heading":"Informed consent","content":"\t73C Informed consent\n\nFor the purposes of this Part, a person is to be taken to have given informed consent to a transfer or interim disposition only if he or she gives written consent to the transfer or disposition (as the case requires) after—\n\n(a) he or she has been given a clear explanation of the process involved in the transfer or disposition and the reasons for the transfer or disposition, containing sufficient information to enable him or her to make a balanced judgment; and\n\n(b) any relevant questions asked by him or her have been answered and he or she has understood the answers.\n\nS. 73D inserted by No. 7/2002 s. 30.\n\n","sortOrder":140},{"sectionNumber":"73D","sectionType":"section","heading":"Transfer of persons from Victoria to a participating State","content":"\t73D Transfer of persons from Victoria to a participating State\n\n(1) A person who is subject to a supervision order may be transferred to a participating State if—\n\n(a) the transfer is permitted by or under a corresponding law in that participating State; and\n\n(b) the Victorian Minister makes an order under this section authorising the transfer.\n\n(2) The Victorian Minister may make an order under this section authorising a transfer if—\n\n(a) the chief psychiatrist has certified in writing that the transfer is for the benefit of the person subject to the supervision order; and\n\n(b) the Victorian Minister is satisfied that the transfer is permitted by or under a corresponding law in the participating State; and\n\n(c) the Victorian Minister is satisfied that—\n\n(i) the person subject to the order has given informed consent to the transfer; or\n\n(ii) if the person is incapable of giving informed consent—his or her guardian has given informed consent to the transfer.\n\n(3) On the transfer of a person from Victoria in accordance with an order under this section, the supervision order to which the person is subject is in force only if the person returns to Victoria and while the person is in Victoria.\n\nS. 73E inserted by No. 7/2002 s. 30.\n\n","sortOrder":141},{"sectionNumber":"73E","sectionType":"section","heading":"Transfer of persons from a participating State to Victoria","content":"\t73E Transfer of persons from a participating State to Victoria\n\n(1) A person who is subject to an interstate supervision order may be transferred to Victoria if—\n\n(a) the transfer is permitted by or under a corresponding law in the participating State in which the supervision order was made; and\n\n(b) the Victorian Minister has agreed to the transfer and determined an interim disposition for the person.\n\n(2) The Victorian Minister may agree to a transfer of a person to Victoria and determine an interim disposition if—\n\n(a) the chief psychiatrist has certified in writing that the transfer is for the benefit of the person and there are facilities or services available for the custody, care or treatment of the person (as the case requires); and\n\n(b) the Victorian Minister is satisfied that the transfer is necessary for the maintenance or re-establishment of family relationships or relationships with people who can assist in supporting the person; and\n\n(c) the Victorian Minister is satisfied that—\n\n(i) the person subject to the order has given informed consent to the transfer and interim disposition; or\n\n(ii) if the person is incapable of giving informed consent—his or her guardian has given informed consent to the transfer and interim disposition.\n\n(3) The interim dispositions that the Victorian Minister may determine under this section are—\n\n(a) that the person be detained in an appropriate place determined by the Victorian Minister as if the person were subject to a custodial supervision order;\n\n(b) that the person be absent on leave from an appropriate place determined by the Minister, on any conditions determined by the Minister, as if the person were subject to a custodial supervision order and had been granted extended leave.\n\nNote to s. 73E(3) amended by Nos 23/2006 s. 237(3), 26/2014 s. 450(1), 19/2019 s. 246(1).\n\nAn ***appropriate place*** is a designated mental health service or a residential treatment facility—see section 3.\n\n(4) On the transfer of a person to Victoria under this section—\n\nS. 73E(4)(a) amended by No. 26/2014 s. 450(2).\n\n(a) if the interim disposition is that the person be detained in a designated mental health service—the person is to be so detained and is deemed to be a forensic patient;\n\nS. 73E(4)(b) amended by Nos 23/2006 s. 237(4)(a), 19/2019 s. 246(2)(a).\n\n(b) if the interim disposition is that the person be detained in a residential treatment facility—the person is to be so detained and is deemed to be a forensic resident;\n\nS. 73E(4)(c) amended by No. 26/2014 s. 450(3).\n\n(c) if the interim disposition is that the person be absent on leave from a designated mental health service—the person is deemed to be a forensic patient absent from the designated mental health service on extended leave;\n\nS. 73E(4)(d) amended by Nos 23/2006 s. 237(4), 19/2019 s. 246(2)(b)(c).\n\n(d) if the interim disposition is that the person be absent on leave from a residential treatment facility—the person is deemed to be a forensic resident absent from the residential treatment facility on extended leave.\n\n(5) Nothing in this section is to be taken as requiring the Victorian Minister to agree to a transfer of a person to Victoria.\n\nS. 73F inserted by No. 7/2002 s. 30.\n\n","sortOrder":142},{"sectionNumber":"73F","sectionType":"section","heading":"Review of persons transferred to Victoria","content":"\t73F Review of persons transferred to Victoria\n\nS. 73F(1) substituted by No. 29/2010 s. 33(1), amended by No. 15/2015 s. 37(28).\n\n(1) Within 6 months after a person has been transferred to Victoria under section 73E, the Secretary to the Department of Health and Human Services must apply to the Supreme Court for a review.\n\n(2) The purpose of the review is to determine the appropriate disposition for the person.\n\n(a) make a supervision order in respect of the person as if the person had been declared to be liable to supervision under Part 5; or\n\n(b) order the person to be released unconditionally.\n\n(5) The court cannot make a supervision order that is more restrictive on the person's freedom and personal autonomy than the interstate supervision order to which the person was subject, unless satisfied that the safety of the person or members of the public would be seriously endangered if a more restrictive order is not made.\n\n(6) If the court makes a supervision order, the court must set a nominal term for the order in accordance with section 28 as modified by section 73G.\n\n(7) If the court makes a custodial supervision order, the court may grant extended leave to the person if the court could have granted them extended leave on an application under section 57.\n\nS. 73F(8) inserted by No. 29/2010 s. 33(2), repealed by No. 15/2015 s. 37(29).\n\nS. 73G inserted by No. 7/2002 s. 30.\n\n","sortOrder":143},{"sectionNumber":"73G","sectionType":"section","heading":"Nominal term of supervision order","content":"\t73G Nominal term of supervision order\n\n(1) The court must set the nominal term of a supervision order made under section 73F in accordance with section 28 as if—\n\n(a) the offence that led to the person being made subject to the interstate supervision order had been committed in Victoria; and\n\n(b) the maximum penalty for that offence were the maximum penalty attaching to that offence at the date of the person's transfer to Victoria.\n\n(2) If the offence referred to in subsection (1) no longer exists at the date referred to in subsection (1)(b)—\n\n(a) the court must determine whether there is an existing offence, as at that date, with which the person could have been charged had it existed at the time of the original charge;\n\n(b) if there is such an offence, the nominal term is to be determined by reference to the maximum penalty for that offence as at the date referred to in subsection (1)(b);\n\n(c) if there is no such offence, the court must set the nominal term as 5 years.\n\n(3) If there never was an equivalent offence in Victoria to the offence that led to the person being made subject to the interstate supervision order, the court must set the nominal term of the supervision order as 5 years.\n\n(4) Despite section 28(4), the nominal term of the supervision order runs from the day on which the person was first made subject to the interstate supervision order.\n\n(5) If the nominal term of the supervision order has expired, the first major review must be undertaken within 12 months after the review under section 73F.\n\nS. 73H inserted by No. 7/2002 s. 30.\n\n","sortOrder":144},{"sectionNumber":"73H","sectionType":"section","heading":"Appeal against unconditional release","content":"\t73H Appeal against unconditional release\n\n(1) The Attorney-General may appeal to the Court of Appeal against an order for unconditional release under section 73F(4)(b) if he or she considers that—\n\nS. 73H(1A) inserted by No. 68/2009 s. 97(Sch. item 39.44).\n\n(1A) An appeal under subsection (1) is commenced by filing a notice of appeal in accordance with the rules of court within 28 days after the day on which the order is made or any extension of that period granted under section 76C.\n\nS. 73H(1B) inserted by No. 68/2009 s. 97(Sch. item 39.44).\n\n(1B) A notice of appeal under subsection (1A) must be signed by the Attorney-General personally.\n\nS. 73H(1C) inserted by No. 68/2009 s. 97(Sch. item 39.44).\n\n(1C) A copy of the notice of appeal must be served personally on the respondent in accordance with section 391 of the **Criminal Procedure Act 2009** within 7 days after the day on which the notice of appeal is filed.\n\nS. 73H(1D) inserted by No. 68/2009 s. 97(Sch. item 39.44).\n\n(1D) The Attorney-General must provide a copy of the notice of appeal to the legal practitioner who last represented the respondent in the review under section 73F, if that legal practitioner can reasonably be identified.\n\nS. 73H(2)(b) amended by No. 68/2009 s. 97(Sch. item 39.45).\n\n(b) set aside the order and make a supervision order in respect of the person as if the person had been declared to be liable to supervision under Part 5; or\n\nS. 73H(2)(c) amended by No. 68/2009 s. 97(Sch. item 39.45).\n\n(c) set aside the order and remit the matter, with or without directions, to the court that made the order for unconditional release.\n\n(3) If the Court of Appeal remits a matter to a court under subsection (2)(c), that court must make a supervision order in respect of the person in accordance with this Act and any directions given by the Court of Appeal.\n\n(4) The Court of Appeal may make any one or more of the following orders pending the making of a supervision order under this section—\n\n(b) subject to subsection (5), an order remanding the person in custody in an appropriate place;\n\n(c) subject to subsection (6), an order remanding the person in custody in a prison;\n\n(5) The Court of Appeal must not make an order remanding a person in custody in an appropriate place unless the Court of Appeal has received a certificate under section 47 stating that the facilities or services necessary for that order are available.\n\n(6) The Court of Appeal must not make an order remanding a person in custody in a prison unless satisfied that there is no practicable alternative in the circumstances.\n\nPt 7B (Heading and ss 73I–73N) inserted by No. 7/2002 s. 30.\n\n","sortOrder":145},{"sectionNumber":"Part 7B","sectionType":"part","heading":"Persons absconding to Victoria from interstate","content":"Part 7B—Persons absconding to Victoria from interstate\n\nS. 73I inserted by No. 7/2002 s. 30.\n\n","sortOrder":146},{"sectionNumber":"73I","sectionType":"section","heading":"Definitions","content":"\t73I Definitions\n\n***interstate supervision order*** means—\n\n(a) an order under the law of another State of a similar nature to a supervision order under the **Crimes (Mental Impairment and Unfitness to be Tried) Act 1997**; or\n\n(b) an order under the law of another State that a person be kept in custody during the Governor's pleasure;\n\n***mental health facility*** means a facility for the detention and treatment of persons who are mentally ill;\n\n***relevant offence***, in relation to a person found unfit to stand trial or not guilty because of mental impairment or other mental condition in another State, means the offence with which the person was charged that led to that finding;\n\n***relevant State***, in relation to a person found unfit to stand trial or not guilty because of mental impairment or other mental condition in another State, means the State in which they were subject to an interstate supervision order or in which they were on remand awaiting the making of an interstate supervision order;\n\n***State*** includes Territory.\n\nS. 73J inserted by No. 7/2002 s. 30.\n\n","sortOrder":147},{"sectionNumber":"73J","sectionType":"section","heading":"Warrant to arrest person who absconds to Victoria","content":"\t73J Warrant to arrest person who absconds to Victoria\n\nS. 73J(1) amended by Nos 29/2010 s. 34, 15/2015 s. 37(30).\n\n(1) The Secretary to the Department of Health and Human Services may apply to the Magistrates' Court for a warrant to arrest a person if the Secretary reasonably believes that—\n\n(a) the person—\n\n(i) has, in another State, been found unfit to stand trial for, or not guilty because of mental impairment or other mental condition of, an offence that, if committed in Victoria, would be an indictable offence; and\n\n(ii) is subject to an interstate supervision order or on remand awaiting the making of such an order; and\n\n(b) the person is in Victoria; and\n\n(c) the person could be apprehended in the relevant State, if the person were still in that State, because he or she—\n\n(i) is absent without leave or other lawful authority from a mental health facility in the relevant State; or\n\n(ii) is in breach of an interstate supervision order that is non-custodial in nature; and\n\n(d) one of the following applies—\n\n(i) the person cannot be lawfully apprehended in Victoria because a warrant to apprehend or arrest the person has not been or cannot be issued in the relevant State, or such a warrant cannot be executed in Victoria; or\n\nS. 73J(1)(d)(ii) amended by Nos 26/2014 s. 451, 39/2022 s. 819.\n\n(ii) the person cannot be lawfully apprehended in Victoria under section 608 of the **Mental Health and Wellbeing Act 2022**; or\n\n(iii) although the person could be lawfully apprehended in Victoria, the person would not be able to be returned to the relevant State following the apprehension.\n\n(2) For the purposes of subsection (1)(c)(i), a person is taken to be absent without lawful authority from a mental health facility in a relevant State if the person did not return to the facility when required to do so under a law of that State.\n\nS. 73J(3) amended by No. 6/2018 s. 68(Sch. 2 item 36.4).\n\n(3) If the Magistrates' Court is satisfied by evidence on oath or by affirmation or by affidavit, of the matters specified in paragraphs (a) to (d) of subsection (1), the court may order that a warrant to arrest be issued against the person who is the subject of the application.\n\n(4) Despite section 64(2)(a) of the **Magistrates' Court Act 1989**, a person arrested under a warrant issued under this section must be brought before the Magistrates' Court on the day of his or her arrest or on the next sitting day of the court.\n\nS. 73K inserted by No. 7/2002 s. 30.\n\n","sortOrder":148},{"sectionNumber":"73K","sectionType":"section","heading":"Interim disposition order","content":"\t73K Interim disposition order\n\n(1) When a person arrested under a warrant issued under section 73J is brought before the Magistrates' Court, the court must make an interim disposition order in respect of him or her in accordance with this section, unless the court is satisfied that the matters specified in paragraphs (a) to (d) of section 73J(1) are not made out.\n\n(2) The interim disposition orders that the court may make in respect of a person are—\n\n(a) that the person be granted bail; or\n\n(b) that the person be detained in an appropriate place determined by the court as if he or she were subject to a custodial supervision order; or\n\n(c) that the person be remanded in custody in a prison.\n\n(3) The court may, from time to time, adjourn a proceeding in which it is considering making an interim disposition order for any reasonable period not exceeding 7 days on each occasion and remand the person on bail or in custody in an appropriate place or a prison during any period of adjournment.\n\n(4) The court must not make an order under subsection (2)(b), or an order under subsection (3) remanding a person in custody in an appropriate place, unless it has received a certificate under section 47 stating that the facilities or services necessary for that order are available.\n\n(5) The court must not make an order under subsection (2)(c), or an order under subsection (3) remanding a person in custody in a prison, unless satisfied that there is no practicable alternative in the circumstances.\n\n(6) If the court is satisfied that any of the matters specified in paragraphs (a) to (c) of section 73J(1) is not made out, the court must discharge the person.\n\n(7) If the court is satisfied that the matters specified in paragraphs (a) to (c) of section 73J(1) are made out, but that the person can be returned to the relevant State, the court must order the person to be released into the custody of a person who is authorised to escort the person to the relevant State.\n\n(8) On the making of an interim disposition order under subsection (2)(b) in respect of a person or an order under subsection (3) remanding a person in custody in an appropriate place—\n\nS. 73K(8)(a) amended by No. 26/2014 s. 452.\n\n(a) if the appropriate place is a designated mental health service—the person is deemed to be a forensic patient;\n\nS. 73K(8)(b) amended by Nos 23/2006 s. 237(5), 19/2019 s. 247.\n\n(b) if the appropriate place is a residential treatment facility—the person is deemed to be a forensic resident.\n\nS. 73L inserted by No. 7/2002 s. 30.\n\n","sortOrder":149},{"sectionNumber":"73L","sectionType":"section","heading":"Review of interim disposition order","content":"\t73L Review of interim disposition order\n\nS. 73L(1) substituted by No. 29/2010 s. 35(1), amended by No. 15/2015 s. 37(31).\n\n(1) Within 7 days after an interim disposition order has been made in respect of a person, the Secretary to the Department of Health and Human Services must apply to the Supreme Court for a review.\n\n(2) The purpose of the review is to determine the appropriate disposition for the person.\n\n(a) make a supervision order in respect of the person as if the person had been declared to be liable to supervision under Part 5; or\n\n(b) order the person to be released unconditionally—\n\nunless the court is satisfied that the person can be returned to the relevant State.\n\n(5) If the court is satisfied that the person can be returned to the relevant State, the court must order the person to be released into the custody of a person who is authorised to escort the person to the relevant State.\n\n(6) If the court makes a supervision order, the court must set a nominal term for the order in accordance with section 28 as modified by section 73M.\n\n(7) If the court makes a custodial supervision order, the court may grant extended leave to the person if the court could have granted them extended leave on an application under section 57.\n\nS. 73L(8) inserted by No. 29/2010 s. 35(2), repealed by No. 15/2015 s. 37(32).\n\nS. 73M inserted by No. 7/2002 s. 30.\n\n","sortOrder":150},{"sectionNumber":"73M","sectionType":"section","heading":"Nominal term of supervision order","content":"\t73M Nominal term of supervision order\n\n(1) The court must set the nominal term of a supervision order made under section 73L in accordance with section 28 as if—\n\n(a) the relevant offence had been committed in Victoria; and\n\n(b) the maximum penalty for that offence were the maximum penalty attaching to that offence at the date the person was arrested in Victoria; and\n\n(c) subsection (2) of this section applied instead of section 28(5).\n\n(2) For the purpose of declaring a day under section 28(4), the court may take into account—\n\n(a) any period of time during which the person was held in custody, or detained in a mental health facility, in the relevant State in relation to proceedings for the relevant offence; and\n\n(b) any period of time during which the person was held in custody, or detained in a mental health facility, in the relevant State under an interstate supervision order; and\n\n(c) any period of time during which the person was held in custody, or detained in an appropriate place, since the person was arrested under a warrant issued under section 73J.\n\n(3) If the nominal term of the supervision order has expired, the first major review must be undertaken within 12 months after the review under section 73L.\n\nS. 73N inserted by No. 7/2002 s. 30.\n\n","sortOrder":151},{"sectionNumber":"73N","sectionType":"section","heading":"Appeal against unconditional release","content":"\t73N Appeal against unconditional release\n\n(1) The Attorney-General may appeal to the Court of Appeal against an order for unconditional release under section 73L(4)(b) if he or she considers that—\n\nS. 73N(1A) inserted by No. 68/2009 s. 97(Sch. item 39.46).\n\n(1A) An appeal under subsection (1) is commenced by filing a notice of appeal in accordance with the rules of court within 28 days after the day on which the order is made or any extension of that period granted under section 76C.\n\nS. 73N(1B) inserted by No. 68/2009 s. 97(Sch. item 39.46).\n\n(1B) A notice of appeal under subsection (1A) must be signed by the Attorney-General personally.\n\nS. 73N(1C) inserted by No. 68/2009 s. 97(Sch. item 39.46).\n\n(1C) A copy of the notice of appeal must be served personally on the respondent in accordance with section 391 of the **Criminal Procedure Act 2009** within 7 days after the day on which the notice of appeal is filed.\n\nS. 73N(1D) inserted by No. 68/2009 s. 97(Sch. item 39.46).\n\n(1D) The Attorney-General must provide a copy of the notice of appeal to the legal practitioner who last represented the respondent in the review under section 73L, if that legal practitioner can reasonably be identified.\n\nS. 73N(2)(b) amended by No. 68/2009 s. 97(Sch. item 39.47).\n\n(b) set aside the order and make a supervision order in respect of the person as if the person had been declared to be liable to supervision under Part 5; or\n\nS. 73N(2)(c) amended by No. 68/2009 s. 97(Sch. item 39.47).\n\n(c) set aside the order and remit the matter, with or without directions, to the court that made the order for unconditional release; or\n\nS. 73N(2)(d) amended by No. 68/2009 s. 97(Sch. item 39.47).\n\n(d) set aside the order and, if satisfied that the person can be returned to the relevant State, order the person to be released into the custody of a person who is authorised to escort the person to the relevant State.\n\n(3) If the Court of Appeal remits a matter to a court under subsection (2)(c), that court must—\n\n(a) make a supervision order in respect of the person in accordance with this Act and any directions given by the Court of Appeal; or\n\n(b) if satisfied that the person can be returned to the relevant State, order the person to be released into the custody of a person who is authorised to escort the person to the relevant State.\n\n(4) The Court of Appeal may make any one or more of the following orders pending the making of a supervision order under this section—\n\n(b) subject to subsection (5), an order remanding the person in custody in an appropriate place;\n\n(c) subject to subsection (6), an order remanding the person in custody in a prison;\n\n(5) The Court of Appeal must not make an order remanding a person in custody in an appropriate place unless the Court of Appeal has received a certificate under section 47 stating that the facilities or services necessary for that order are available.\n\n(6) The Court of Appeal must not make an order remanding a person in custody in a prison unless satisfied that there is no practicable alternative in the circumstances.\n\nS. 73N(7)(8) repealed by No. 68/2009 s. 97(Sch. item 39.48).\n\nPt 7C (Heading and ss 73O–73R) inserted by No. 26/2014 s. 453.\n\n","sortOrder":152},{"sectionNumber":"Part 7C","sectionType":"part","heading":"International forensic patients","content":"Part 7C—International forensic patients\n\nS. 73O inserted by No. 26/2014 s. 453.\n\n","sortOrder":153},{"sectionNumber":"73O","sectionType":"section","heading":"Definition","content":"\t73O Definition\n\n***international forensic patient*** means a person who—\n\n(a) is not subject to a Secure Treatment Order; and\n\n(b) is detained in a designated mental health service while serving a sentence of imprisonment within the meaning of the International Transfer of Prisoners Act 1997 of the Commonwealth.\n\nS. 73P inserted by No. 26/2014 s. 453.\n\n","sortOrder":154},{"sectionNumber":"73P","sectionType":"section","heading":"Review of international forensic patients","content":"\t73P Review of international forensic patients\n\nS. 73P(1) amended by No. 15/2015 s. 37(33).\n\n(1) Within 6 months after an international forensic patient has been received at a designated mental health service, the Secretary to the Department of Health and Human Services must apply to the Supreme Court for a review.\n\n(2) The purpose of the review is to determine the appropriate disposition for the international forensic patient.\n\n(a) make a supervision order in respect of the international forensic patient as if the international forensic patient had been declared to be liable to supervision under Part 5; or\n\n(b) order the international forensic patient to be released unconditionally.\n\n(5) The court cannot make a supervision order that is more restrictive on the person's freedom and personal autonomy than the sentence of imprisonment within the meaning of the International Transfer of Prisoners Act 1997 of the Commonwealth to which the international forensic patient was subject, unless satisfied that the safety of the international forensic patient or members of the public would be seriously endangered if a more restrictive order is not made.\n\n(6) If the court makes a supervision order, the court must set a nominal term for the order in accordance with section 28 as modified by section 73Q.\n\n(7) If the court makes a custodial supervision order, the court may grant extended leave to the international forensic patient if the court could have granted the international forensic patient extended leave on an application under section 57.\n\nS. 73Q inserted by No. 26/2014 s. 453.\n\n","sortOrder":155},{"sectionNumber":"73Q","sectionType":"section","heading":"Nominal term of supervision order","content":"\t73Q Nominal term of supervision order\n\n(1) The court must set the nominal term of a supervision order made under section 73P in accordance with section 28 as if—\n\n(a) the offence that led to the person being made subject to the sentence of imprisonment within the meaning of the International Transfer of Prisoners Act 1997 of the Commonwealth had been committed in Victoria; and\n\n(b) the maximum penalty for that offence were the maximum penalty attaching to that offence at the date of the person's transfer to Victoria.\n\n(2) If the offence referred to in subsection (1) no longer exists at the date referred to in subsection (1)(b)—\n\n(a) the court must determine whether there is an existing offence, as at that date, with which the person could have been charged had it existed at the time of the original charge; and\n\n(b) if there is such an offence, the nominal term is to be determined by reference to the maximum penalty for that offence as at the date referred to in subsection (1)(b); and\n\n(c) if there is no such offence, the court must set the nominal term as 5 years.\n\n(3) If there never was an equivalent offence in Victoria to the offence that led to the person being made subject to the sentence of imprisonment within the meaning of the International Transfer of Prisoners Act 1997 of the Commonwealth, the court must set the nominal term of the supervision order as 5 years.\n\n(4) Despite section 28(4), the nominal term of the supervision order runs from the day on which the person was first made subject to the sentence of imprisonment within the meaning of the International Transfer of Prisoners Act 1997 of the Commonwealth.\n\n(5) If the nominal term of the supervision order has expired, the first major review must be undertaken within 12 months after the review under section 73P.\n\nS. 73R inserted by No. 26/2014 s. 453.\n\n","sortOrder":156},{"sectionNumber":"73R","sectionType":"section","heading":"Appeal against unconditional release","content":"\t73R Appeal against unconditional release\n\n(1) The Attorney-General may appeal to the Court of Appeal against an order for unconditional release under section 73P(4)(b) if he or she considers that—\n\n(2) An appeal under subsection (1) is commenced by filing a notice of appeal in accordance with the rules of court within 28 days after the day on which the order is made or any extension of that period granted under section 76C.\n\n(3) A notice of appeal under subsection (2) must be signed by the Attorney-General personally.\n\n(4) A copy of the notice of appeal must be served personally on the respondent in accordance with section 391 of the **Criminal Procedure Act 2009** within 7 days after the day on which the notice of appeal is filed.\n\n(5) The Attorney-General must provide a copy of the notice of appeal to the Australian legal practitioner who last represented the respondent in the review under section 73P, if that Australian legal practitioner can reasonably be identified.\n\n(6) On an appeal under subsection (1), the Court of Appeal may—\n\n(b) set aside the order and make a supervision order in respect of the person as if the person had been declared to be liable to supervision under Part 5; or\n\n(c) set aside the order and remit the matter, with or without directions, to the court that made the order for unconditional release.\n\n(7) If the Court of Appeal remits a matter to a court under subsection (6)(c), that court must make a supervision order in respect of the person in accordance with this Act and any directions given by the Court of Appeal.\n\n(8) The Court of Appeal may make any one or more of the following orders pending the making of a supervision order under this section—\n\n(b) subject to subsection (9), an order remanding the person in custody in an appropriate place;\n\n(c) subject to subsection (10), an order remanding the person in custody in a prison or any other place;\n\n(d) if it is of the opinion that it is in the interests of justice to do so, an order that—\n\n(i) the person undergo an examination by a registered medical practitioner or registered psychologist; and\n\n(ii) the results of the examination be put before the court that is to make the supervision order;\n\n(9) The Court of Appeal must not make an order remanding a person in custody in an appropriate place unless the Court of Appeal has received a certificate under section 47 stating that the facilities or services necessary for that order are available.\n\n(10) The Court of Appeal must not make an order remanding a person in custody in a prison unless satisfied that there is no practicable alternative in the circumstances.\n\n","sortOrder":157},{"sectionNumber":"Part 8","sectionType":"part","heading":"General","content":"Part 8—General\n\n","sortOrder":158},{"sectionNumber":"74","sectionType":"section","heading":"Service of notices of hearings to family members and victims","content":"\t74 Service of notices of hearings to family members and victims\n\nA notice of a hearing required to be given to a family member or victim under this Act must be sent to the person by registered post.\n\n","sortOrder":159},{"sectionNumber":"75","sectionType":"section","heading":"Suppression orders","content":"\t75 Suppression orders\n\n(1) In any proceeding before a court under this Act, the court, if satisfied that it is in the public interest to do so, may order—\n\n(a) that any evidence given in the proceeding;\n\n(b) that the content of any report or other document put before the court in the proceeding;\n\nS. 75(1)(c) amended by No. 68/2009 s. 97(Sch. item 39.49).\n\n(c) that any information that might enable an accused or any person who has appeared or given evidence in the proceeding to be identified—\n\nmust not be published except in the manner and to the extent (if any) specified in the order.\n\n(2) An order under this section may be made on the application of a party or on the court's own initiative.\n\n(3) A person must not publish or cause to be published any material in contravention of an order under this section.\n\n1. 500 penalty units in the case of a body corporate;\n\n120 penalty units or imprisonment for 1 year or both in any other case.\n\n","sortOrder":160},{"sectionNumber":"76","sectionType":"section","heading":"Inadmissibility of evidence in other proceedings","content":"\t76 Inadmissibility of evidence in other proceedings\n\n(1) In this section—\n\nS. 76(1) def. of *hearing* amended by No. 55/2014 s. 129.\n\n***hearing*** means—\n\n(a) an investigation under Part 2 or Division 2 of Part 5A;\n\n(b) a special hearing under Part 3 or Division 3 of Part 5A;\n\n(c) a hearing referred to in section 36(1);\n\n(d) a hearing of the Panel under Part 7.\n\n(2) Evidence of anything said on a hearing, or of any document prepared solely for the purpose of a hearing, is not admissible in any civil or criminal proceeding except—\n\n(a) a proceeding arising out of the hearing; or\n\n(b) a proceeding for an offence against section 314(1) of the **Crimes Act 1958** (perjury) or for any other offence that involves an interference with the due administration of justice; or\n\n(c) with the consent of the person to whom the words or document principally refers or relates.\n\n(3) A court, tribunal or person acting judicially may rule as admissible in a proceeding before them any matter inadmissible because of subsection (2) if satisfied, on the application of a party to the proceeding, that it is in the interests of justice to do so.\n\nS. 76A inserted by No. 7/2002 s. 31.\n\n","sortOrder":161},{"sectionNumber":"76A","sectionType":"section","heading":"Directions","content":"\t76A Directions\n\n(1) The court may give directions at any time in a proceeding under this Act and hold any hearings it considers necessary for the purpose of giving directions.\n\n(2) The directions may include a direction that the Director of Public Prosecutions file an outline of the case with the court within the time specified in the direction.\n\nS. 76B inserted by No. 7/2002 s. 31, amended by No. 7/2009 s. 425(d) (as amended by No. 68/2009 s. 54(k)), substituted by No. 68/2009 s. 97(Sch. item 39.50).\n\n","sortOrder":162},{"sectionNumber":"76B","sectionType":"section","heading":"Rules of court","content":"\t76B Rules of court\n\n(1) Rules of court made by the authority having for the time being power to make rules regulating the practice and procedure of a court may include rules for or with respect to any matter for which provision is to be made under this Act by rules of court.\n\n(2) Rules of court made under this Act may regulate generally the practice and procedure under this Act.\n\nS. 76C inserted by No. 68/2009 s. 97(Sch. item 39.51).\n\n","sortOrder":163},{"sectionNumber":"76C","sectionType":"section","heading":"Extension of time for filing notice of appeal","content":"\t76C Extension of time for filing notice of appeal\n\nS. 76C(1) amended by Nos 34/2010 s. 48, 81/2011 s. 22(4), 55/2014 s. 130(1).\n\n(1) The Court of Appeal, or, in accordance with the rules of court, the Registrar of Criminal Appeals of the Supreme Court at any time may extend the time within which a notice of appeal may be filed under this Act (other than Part 5A).\n\n(2) If the Registrar of Criminal Appeals of the Supreme Court refuses an application to extend time under subsection (1), the applicant is entitled to have the Court of Appeal determine the application.\n\nS. 76C(3) inserted by No. 55/2014 s. 130(2).\n\n(3) The County Court or the Trial Division of the Supreme Court at any time may extend the time within which a notice of appeal may be filed under Part 5A.\n\nS. 76D inserted by No. 68/2009 s. 97(Sch. item 39.51).\n\n","sortOrder":164},{"sectionNumber":"76D","sectionType":"section","heading":"Powers which may be exercised by a single Judge of Appeal","content":"\t76D Powers which may be exercised by a single Judge of Appeal\n\n(1) The power of the Court of Appeal under section 76C to extend the time within which notice of appeal may be given may be exercised by a single Judge of Appeal in the same manner as it may be exercised by the Court of Appeal.\n\n(2) If a Judge of Appeal refuses an application to exercise a power referred to in subsection (1), the applicant is entitled to have the application determined by the Court of Appeal.\n\nS. 77 repealed by No. 7/2002 s. 32.\n\n","sortOrder":165},{"sectionNumber":"78","sectionType":"section","heading":"Abolition of Governor's pleasure orders","content":"\t78 Abolition of Governor's pleasure orders\n\n(1) A court does not have jurisdiction or power to order that a person be kept in strict custody until the Governor's pleasure is known.\n\n(2) The Governor does not have authority to make an order directing that a person be kept in strict custody during the Governor's pleasure.\n\n","sortOrder":166},{"sectionNumber":"79","sectionType":"section","heading":"Supreme Court—limitation of jurisdiction","content":"\t79 Supreme Court—limitation of jurisdiction\n\nIt is the intention of section 78(1) to alter or vary section 85 of the **Constitution Act 1975**.\n\n","sortOrder":167},{"sectionNumber":"80","sectionType":"section","heading":"Regulations","content":"\t80 Regulations\n\nThe Governor in Council may make regulations for or with respect to any matter or thing authorised or required to be prescribed or necessary to be prescribed for carrying this Act into effect.\n\nPt 9  \n(Heading and ss 81–88) repealed by No. 7/2002 s. 50.\n\nPart 10—Savings and transitional provisions\n\n\t89 Savings and transitional provisions\n\nSchedule 3 has effect.\n\nS. 90 inserted by No. 26/2014 s. 454.\n\n","sortOrder":168},{"sectionNumber":"90","sectionType":"section","heading":"International forensic patient—transitional provision","content":"\t90 International forensic patient—transitional provision\n\nA person who, immediately before 1 July 2014, is—\n\n(a) not subject to a hospital transfer order or a restricted hospital transfer order under section 16(3) of the **Mental Health Act 1986** (as in force immediately before 1 July 2014); and\n\n(b) serving a sentence of imprisonment within the meaning of the International Transfer of Prisoners Act 1997 of the Commonwealth at an approved mental health service—\n\nis taken on 1 July 2014 to be received at a designated mental health service as an international forensic patient.\n\nS. 90A inserted by No. 11/2021 s. 123.\n\n","sortOrder":169},{"sectionNumber":"90A","sectionType":"section","heading":"Transitional provisions—Justice Legislation Amendment (System Enhancements and Other Matters) Act 2021","content":"\t90A Transitional provisions—Justice Legislation Amendment (System Enhancements and Other Matters) Act 2021\n\nOn and from the commencement of Division 2 of Part 2 as inserted by the **Justice Legislation Amendment (System Enhancements and Other Matters) Act 2021**, an investigation as to the fitness of an accused to stand trial is to be conducted in accordance with that Division irrespective of whether before, on or after that commencement—\n\n(a) the question of the fitness of the accused to stand trial is or was raised; or\n\n(b) the offence charged is or was alleged to have been committed; or\n\n(c) the criminal proceeding in respect of which the investigation relates is or was commenced.\n\nNew s. 91 inserted by No. 32/2024 s. 795.\n\n","sortOrder":170},{"sectionNumber":"91","sectionType":"section","heading":"Transitional provision—Youth Justice Act 2024—increase in minimum age of criminal responsibility","content":"\t91 Transitional provision—Youth Justice Act 2024—increase in minimum age of criminal responsibility\n\n(1) If, before the commencement of Part 1.2 of the **Youth Justice Act 2024**, a court has declared that a child is liable to supervision under Division 5 of Part 5A because of conduct by the child when the child was 10 or 11 years of age, on that commencement—\n\n(a) the declaration is of no effect; and\n\n(b) any supervision order made under section 38ZH in respect of the child because of the declaration is, by virtue of this section, taken to be set aside; and\n\n(c) any order made under the **Bail Act 1977** in respect of the child is, by virtue of this section, taken to be set aside; and\n\n(d) any other order relating to the declaration is, by virtue of this section, taken to be set aside.\n\n(2) If a supervision order made under section 38ZH is taken to be set aside under this section—\n\n(a) the child is released from any obligation to comply with the conditions of the order; and\n\n(b) if the child is in custody, the child must be unconditionally released; and\n\n(c) any order made under section 38ZM that a warrant to arrest be issued against the child is, by virtue of this section, taken to be set aside.\n\nPt 11 (Headings and ss 91–122) inserted by No. 11/2020 s. 30, amended by No. 27/2020 ss 11, 12, repealed by No. 65/1997 s. 122 (as amended by No. 27/2020 s. 12), new Pt 11 (Headings and new ss 91–120) inserted by No. 11/2022 s. 6, repealed by No. 65/1997 s. 120.\n\nSchedules\n\nSchedule 1––Provisions with respect to members of the Panel\n\nSection 59(3)\n\n\t1 Judicial members\n\n(1) The judicial members—\n\n(a) are to be appointed by the Governor in Council; and\n\n(b) hold office for a period of 5 years; and\n\n(c) are eligible for re-appointment at the end of the term of office; and\n\nSch. 1 cl. 1(1)(d) amended by Nos 46/1998  \ns. 7(Sch. 1), 108/2004 s. 117(1) (Sch. 3 item 50.2).\n\n(d) are not in respect of the office of member subject to the provisions of the **Public Administration Act 2004**.\n\n(2) The appointment of a judge to the Panel does not affect his or her tenure of office as a judge or rank, title, status, precedence, salary, annual or other allowances or other rights or privileges as the holder of an office as a judge and, for all purposes, service as a member of the Panel is to be taken to be service as the holder of an office as a judge.\n\n(3) For the purposes of sections 80A(5A)(a) and 83(4) of the **Constitution Act 1975** and sections 13A(5A)(a) and (5C) of the **County Court Act 1958**, the office of judicial member is not to be taken to be a judicial office or an office or place of profit under the Crown.\n\n\t2 Other members\n\n(1) Each member of the Panel (other than the judicial members and the chief psychiatrist or his or her nominee)—\n\n(a) is to be appointed by the Governor in Council on the nomination of the Minister; and\n\n(b) holds office for the term specified in his or her instrument of appointment, which must be no longer than 4 years; and\n\n(c) is eligible for re-appointment at the end of the term of office; and\n\n(d) is entitled to be paid—\n\n(i) the remuneration that is fixed from time to time by the Governor in Council; and\n\n(ii) the travelling and other expenses that are fixed by the Governor in Council; and\n\nSch. 1 cl. 2(1)(e) amended by No. 46/1998  \ns. 7(Sch. 1), substituted by Nos 108/2004 s. 117(1) (Sch. 3 item 50.3), 80/2006 s. 26(Sch. item 22).\n\n(e) is in respect of the office of member subject to the **Public Administration Act 2004** (other than Part 3 of that Act).\n\n(2) In nominating people for appointment to the Panel, the Minister must have regard to—\n\n(a) the matters that the Panel has jurisdiction to hear and determine; and\n\n(b) the need for the Panel to be comprised of both males and females so qualified by knowledge and experience that the Panel is capable of exercising the jurisdiction and performing the functions conferred on it.\n\n(3) In the case of the first appointment of members of the Panel—\n\n(a) as nearly as possible to half the number of members appointed are to hold office for a term of 2 years from their respective appointments; and\n\n(b) the remainder of members first appointed are to hold office for a term of 4 years from their respective appointments.\n\n\t3 Acting members\n\n(1) If a member is unable, whether on account of illness or otherwise, to perform the duties of office, the Governor in Council may appoint an eligible person to act as that member during the period of inability.\n\n(2) If an acting member has been appointed and the member for whom he or she is acting ceases to hold office without having resumed the performance of the duties of office, the appointment of the acting member continues until—\n\n(a) it is terminated by the Governor in Council; or\n\n(b) 12 months after the member ceases to hold office—\n\nwhichever occurs first.\n\n(3) An acting member—\n\n(a) has all the powers and may perform all the duties of the member for whom they are acting; and\n\n(b) except in the case of an acting judicial member, is entitled to be paid—\n\n(i) the remuneration that is fixed from time to time by the Governor in Council; and\n\n(ii) the travelling and other expenses that are fixed by the Governor in Council.\n\n(4) If the appointment of an acting member expires (whether because of effluxion of time, the resumption of duty by the member for whom they are acting or the filling of the relevant vacancy) at a time when the acting member is engaged in a hearing of a matter by the Panel, the acting member's appointment continues until the matter has been finally determined by the Panel.\n\n\t4 Judicial members\n\nA judicial member ceases to hold office on ceasing to hold the office of judge.\n\n\t5 General provisions as to members\n\n(1) The Governor in Council may specify terms and conditions of appointment in the instrument of appointment of a member.\n\n(2) The Governor in Council, on the recommendation of the Minister after consultation with the judicial members, may remove or suspend any member (other than the judicial members or the chief psychiatrist or his or her nominee) from office.\n\n(3) A member may resign from the office of member by writing signed by the member and delivered to the Governor in Council.\n\n(4) If any member (other than the judicial members or the chief psychiatrist or his or her nominee)—\n\n(a) becomes bankrupt; or\n\n(b) is convicted of an indictable offence or an offence that, if committed in Victoria, would be an indictable offence; or\n\n(c) becomes incapable of performing the duties of a member—\n\nthe office held by that member becomes vacant.\n\n(5) If the appointment of any member expires at a time when that member is engaged in the hearing of a matter by the Panel, the appointment continues until the matter has been finally determined by the Panel.\n\nSchedule 2––Provisions with respect to the procedure of the Panel\n\nSection 64(2)\n\n\t1 Constitution of Panel for hearings\n\n(1) For the purposes of a hearing, the Panel is to be constituted by—\n\n(a) a judicial member, being—\n\n(i) a Supreme Court judge in the case of an applicant for leave whose supervision order was made by the Supreme Court; or\n\n(ii) a County Court judge in the case of an applicant for leave whose supervision order was made by the County Court—\n\nwho is to be chairperson of the Panel for that hearing; and\n\n(b) a member appointed to the Panel to represent the views and opinions of members of the community; and\n\n(c) if the applicant for leave is a forensic patient—\n\n(i) the chief psychiatrist or his or her nominee; and\n\n(ii) a member of the Panel who is a registered medical practitioner with experience in forensic psychiatry; and\n\n(d) if the applicant for leave is a forensic resident, a member of the Panel who is a registered psychologist with experience in the field of intellectual disabilities and with forensic experience.\n\n(2) The member of the Panel referred to in subclause (1)(c) or (d) must not be a person who is primarily responsible for the treatment or care of the applicant for leave.\n\n(3) The members to constitute the Panel for a hearing are to be selected by the President.\n\n\t2 Procedure of the Panel\n\n(1) Unless clause 3 applies, a matter arising for determination by the Panel in a hearing is to be determined by the opinions of a majority of the members constituting the Panel for the purposes of that hearing, but if the Panel is evenly divided, the matter is to be determined by the opinion of the chairperson.\n\n(2) An act or decision of the Panel is not invalidated only because—\n\n(a) of a defect or irregularity—\n\n(i) in the appointment of a member; or\n\n(ii) in the selection of a member for a particular hearing; or\n\n(b) in the case of an acting member, the occasion for acting had not arisen or had ceased.\n\n(3) Subject to this Act, the procedure of the Panel is in its discretion.\n\n\t3 Determination of questions of law\n\n(1) A question of law that arises in proceedings before the Panel is to be decided by the chairperson.\n\n(2) The Panel, of its own motion or at the request of a party, may refer a question of law arising in a proceeding before it to the Court of Appeal for decision.\n\n(3) A question of law may be referred under subclause (2) only if the chairperson of the Panel agrees to the referral.\n\n(4) If a question of law is referred under subclause (2), the Panel must not, in the proceeding—\n\n(a) give a decision to which the question is relevant while the referral is pending; or\n\n(b) proceed in a manner or make a decision that is inconsistent with the opinion of the Court of Appeal.\n\n\t4 Directions as to arrangement of business and procedure\n\nThe President, after consultation with the other members of the Panel, may give directions as to—\n\n(a) the arrangement of the business of the Panel; and\n\n(b) the procedure of the Panel.\n\n\t5 Sittings of the Panel\n\n(1) The Panel is to sit—\n\n(a) at such times as the President determines; and\n\n(b) at the place where the applicant for leave is detained, unless the President determines otherwise.\n\n(2) The President may determine that there is to be a special sitting of the Panel in the case of an emergency.\n\n\t6 Powers of Panel\n\nThe Panel has power to—\n\n(a) order that any person who in the opinion of the Panel ought to be a party in any proceedings be added as a party or substituted for a party; and\n\n(b) order that any person who in the opinion of the Panel is not a proper or a necessary party in any proceedings cease to be a party; and\n\n(c) adjourn the hearing of any proceedings—\n\n(i) to any time and place; and\n\n(ii) for any purpose; and\n\n(iii) on any terms as to costs or otherwise—\n\nas the Panel considers necessary or just in the circumstances; and\n\n(d) reserve its decision in any proceedings to a date to be advised by the Panel; and\n\n(e) make an order that operates at a date after the making of the order as is specified in the order.\n\n\t7 Reasons to be signed\n\n(1) Written reasons for determinations of the Panel (if requested under section 66) must be signed by the members constituting the Panel that made the determination.\n\n(2) If one or more members of the Panel are unavailable for the purpose of signing the reasons, it is sufficient if one of the members signs the reasons.\n\n(3) The production in any proceedings of a document purporting to be a copy of reasons for a determination made by the Panel and purporting to be signed by a member or members of the Panel is conclusive evidence of the reasons for the determination and of the due making and existence of the determination.\n\n\t8 Power to amend determination\n\n(1) The Panel may at any time make a determination correcting a determination made by it if there is in the determination—\n\n(a) a clerical mistake or an error arising from any accidental slip or omission; or\n\n(b) any evident material miscalculation of figures or an evident material mistake in the description of any person, thing or property referred to in the determination.\n\n(2) A determination under subclause (1) may be made on the application of any person or on the Panel's own initiative.\n\nSchedule 3––Savings and transitional provisions\n\n\t1 Definitions\n\nIn this Schedule—\n\n***commencement day*** means the day on which this Schedule comes into operation;\n\n***existing detainee*** means a person who, immediately before the commencement day, was subject to an order under section 393 or 420 of the **Crimes Act 1958** (whether by the court or by the Governor).\n\n\t2 Existing detainees\n\n(1) Each existing detainee is, on and after the commencement day, deemed to be subject to a custodial supervision order under this Act.\n\n(2) The nominal term of the custodial supervision order is to be determined in accordance with section 28 as if the maximum penalty for the offence which led to the person becoming an existing detainee were the maximum penalty attaching to that offence on the commencement day.\n\n(3) If the offence referred to in subsection (2) no longer exists—\n\n(a) the Supreme Court, on application by the existing detainee or the Director of Public Prosecutions, must determine whether there is an existing offence, as at the commencement day, with which the existing detainee could have been charged had it existed at the time of the original charge; and\n\n(b) if there is such an offence, the nominal term is to be determined by reference to the maximum penalty for that offence as at the commencement day.\n\n(4) The nominal term runs from the day on which the existing detainee was made subject to the order under section 393 or 420 of the **Crimes Act 1958**.\n\nSch. 3 cl. 2(5) amended by No. 43/1998 s. 40(b)(i).\n\n(5) If the nominal term has expired, a major review must be held within 6 months after the commencement day.\n\n\t3 Leave\n\n(1) Subject to this clause, an existing detainee who, immediately before the commencement day, was on leave from the place of detention that corresponds to leave that may be granted under Part 7 is deemed to be on the corresponding leave as if granted under that Part, and any conditions to which the leave was subject immediately before the commencement day continue to apply.\n\nSch. 3 cl. 3(2) amended by No. 43/1998 s. 40(b)(ii).\n\n(2) Subclause (1) applies for the period of 12 months commencing on, and including, the commencement day.\n\n(3) For the purposes of this clause, leave granted before the commencement day corresponds to leave that may be granted under Part 7 if it is substantially similar to that leave.\n\nSch. 3 cl. 3(4) inserted by No. 7/2002 s. 33(1).\n\n(4) Sections 53 and 54, as in force immediately before the commencement of sections 24 and 25 of the **Forensic Health Legislation (Amendment) Act 2002**, continue to apply in relation to any limited off-ground leave granted before that commencement, until the expiry of that leave.\n\n\t4 Revocation of supervision order\n\n(1) Despite anything to the contrary in Part 5, an existing detainee who has been, or is deemed to have been, on extended leave for a period of at least 12 months may apply to the court that made the original order under which he or she was detained for revocation of his or her supervision order.\n\n(2) On an application under subclause (1) the court may revoke the supervision order if satisfied on the evidence available that the safety of the existing detainee or members of the public will not be seriously endangered as a result of the revocation of the order.\n\n(3) In considering an application for revocation of a supervision order in respect of an existing detainee the court may take into account any reports on the existing detainee made by, or submitted to, the Adult Parole Board before the commencement day.\n\n\t5 Persons released under section 498 of Crimes Act 1958\n\nDespite the repeal of section 498 of the **Crimes Act 1958**, any conditions imposed on a person under that section that were in force immediately before the commencement day continue to apply on and after the commencement day.\n\n\t6 Unfitness to stand trial\n\n(1) Part 2 applies with respect to an offence that is alleged to have been committed, whether before, on or after the commencement day.\n\n(2) If a person has been found unfit to stand trial but no order has been made in respect of the person before the commencement day, the court must proceed to hold a special hearing under Part 3 in respect of the person.\n\n\t7 Mental impairment and insanity\n\n(1) Despite section 25, the defence of insanity continues to apply with respect to any offence alleged to have been committed before the commencement day.\n\n(2) If a jury returns a verdict of not guilty on account of insanity in relation to a person charged with an offence alleged to have been committed before the commencement day, that verdict is to be taken for all purposes to be a finding of not guilty because of mental impairment under Part 4.\n\nSch. 3 cl. 8 inserted by No. 7/2002 s. 33(2).\n\n\t8 Periodic major reviews\n\nSection 35, as amended by section 14 of the **Forensic Health Legislation (Amendment) Act 2002**, applies to a supervision order made before, on or after the commencement of that section 14.\n\nSch. 3 cl. 9 inserted by No. 7/2002 s. 33(2).\n\n\t9 Notification requirements\n\nSections 38A, 38B, 38C and 38E, as inserted by section 17 of the **Forensic Health Legislation (Amendment) Act 2002**, apply to—\n\n(a) applications that are made after the commencement of that section 17; and\n\n(b) reviews that are listed by the court after the commencement of that section 17.\n\nSch. 3 cl. 10 inserted by No. 7/2002 s. 33(2).\n\n\t10 Appeals\n\n(1) An order for unconditional release can be appealed under section 19A or 24A (as the case may be) whether the order was made before or after the commencement of that section, unless—\n\n(2) A supervision order can be appealed under section 28A whether the order was made before or after the commencement of that section, unless—\n\n(3) An order confirming, varying or revoking a supervision order can be appealed under section 34 (as substituted by section 13 of the **Forensic Health Legislation (Amendment) Act 2002**) or section 34A (as the case may be) whether the order was made before or after the commencement of that section, unless—\n\n(4) A refusal to grant extended leave or a grant of extended leave can be appealed under section 57B whether the refusal or grant was made before or after the commencement of that section.\n\n(5) A revocation of extended leave or a refusal to revoke extended leave can be appealed under section 58A whether the revocation or refusal was made before or after the commencement of that section.\n\n(6) Any appeal referred to in subclause (1)(a), (2)(a) or (3)(a) that has not been determined before the commencement referred to in that subclause is to be determined in accordance with this Act as in force immediately before that commencement.\n\nSch. 3 cl. 11 inserted by No. 68/2009 s. 97(Sch. item 39.52).\n\n\t11 Transitional provisions—Criminal Procedure Act 2009\n\n(1) Section 14A as inserted by section 423 of the **Criminal Procedure Act 2009** applies to a finding on an investigation under Part 2 that an accused is unfit to stand trial made on or after the commencement of section 423 of that Act.\n\n(2) Section 24AA as inserted by section 424 of the **Criminal Procedure Act 2009** applies to a verdict of not guilty because of mental impairment recorded on or after the commencement of section 424 of that Act.\n\nSch. 3 cl. 12 inserted by No. 68/2009 s. 97(Sch. item 39.52).\n\n\t12 Transitional provisions—Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009\n\n(1) Section 19A as amended by item 39.17 of the Schedule to the **Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009** applies to an appeal under that section where the order to which the appeal relates is made on or after the commencement of that item.\n\n(2) Section 24A as amended by item 39.24 of the Schedule to the **Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009** applies to an appeal under that section where the order to which the appeal relates is made on or after the commencement of that item.\n\n(3) Section 28A as amended by item 39.25 of the Schedule to the **Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009** applies to an appeal under that section where the order to which the appeal relates is made on or after the commencement of that item.\n\n(4) Section 34 as amended by item 39.28 of the Schedule to the **Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009** applies to an appeal under that section where the order to which the appeal relates is made on or after the commencement of that item.\n\n(5) Section 34A as amended by item 39.31 of the Schedule to the **Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009** applies to an appeal against the revocation of a non-custodial supervision order where the order revoking the supervision order is made on or after the commencement of that item.\n\n(6) Section 57B as amended by item 39.38 of the Schedule to the **Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009** applies to an appeal under that section where the application for extended leave is refused or granted, as the case may be, on or after the commencement of that item.\n\n(7) Section 58A as amended by item 39.40 of the Schedule to the **Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009** applies to an appeal under that section where the extended leave is revoked or the application for revocation of extended leave is refused, as the case may be, on or after the commencement of that item.\n\n(8) Section 73H as amended by item 39.44 of the Schedule to the **Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009** applies to an appeal under that section where the order to which the appeal relates is made on or after the commencement of that item.\n\n(9) Section 73N as amended by item 39.46 of the Schedule to the **Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009** applies to an appeal under that section where the order to which the appeal relates is made on or after the commencement of that item.\n\nSch. 3 cl. 13 (Heading) amended by No. 29/2011 s. 3(Sch. 1 item 23).\n\nSch. 3 cl. 13 inserted by No. 29/2010 s. 36.\n\n\t13 Transitional provision—Health and Human Services Legislation Amendment Act 2010\n\nAny act matter or thing of a continuing nature that was done by or in relation to, or any proceeding brought by or against, the Secretary to the Department of Human Services before the commencement of Division 1 of Part 5 of the **Health and Human Services Legislation Amendment Act 2010** is to be taken to be done by or in relation to, and may be brought by or against, the Secretary to the Department of Health after that commencement if the act matter or thing or proceeding relates to—\n\n(a) a forensic patient; or\n\n(b) an approved mental health service.\n\nSch. 3 cl. 15 inserted by No. 55/2014 s. 131.\n\n\t15 Transitional provision—Criminal Organisations Control and Other Acts Amendment Act 2014\n\nThis Act as amended by Division 1 of Part 5 of the **Criminal Organisations Control and Other Acts Amendment Act 2014** applies to—\n\n(a) a proceeding for an offence that is commenced on or after the commencement of Division 1 of Part 5 of that Act; and\n\n(b) a proceeding for an offence that, on the commencement of Division 1 of Part 5 of that Act, is before the Children's Court, irrespective of when the proceeding was commenced.\n\nSch. 3 cl. 16 inserted by No. 6/2017 s. 12.\n\n\t16 Transitional provision—Crimes Legislation Further Amendment Act 2017\n\nThis Act as amended by Part 3 of the **Crimes Legislation Further Amendment Act 2017** applies to an investigation into the fitness of an accused to stand trial that commences on or after the day on which that Part comes into operation.\n\nSch. 3 cl. 16A inserted by No. 11/2020 s. 31.\n\n","sortOrder":171},{"sectionNumber":"16A","sectionType":"section","heading":"Transitional provision—COVID-19 Omnibus (Emergency Measures) Act 2020—investigations into fitness to stand trial","content":"\t16A Transitional provision—COVID-19 Omnibus (Emergency Measures) Act 2020—investigations into fitness to stand trial\n\n(1) Despite the repeal of Part 11, an investigation into the fitness of an accused—\n\n(a) that, immediately before that repeal, was being conducted by the court, without a jury, in accordance with that Part; and\n\n(b) in which the court had not yet made a finding—\n\nis to continue, after that repeal, to be conducted by the court, without a jury, in accordance with that Part.\n\n(2) For the purposes of an investigation that continues in accordance with subsection (1), Part 11 continues to have effect despite its repeal.\n\n(3) After the conclusion of an investigation that was continued in accordance with subsection (1), sections 95, 96, 97 and 98 continue to apply in relation to that investigation despite their repeal.\n\n(4) Subject to this section, on and after the repeal of Part 11, a finding of a court, on an investigation conducted in accordance with that Part, that an accused was or was not fit to stand trial has, for all purposes, the same effect as a finding of a jury.\n\nSch. 3 cl. 16B inserted by No. 11/2020 s. 31.\n\n","sortOrder":172},{"sectionNumber":"16B","sectionType":"section","heading":"Transitional provision—COVID-19 Omnibus (Emergency Measures) Act 2020—special hearings","content":"\t16B Transitional provision—COVID-19 Omnibus (Emergency Measures) Act 2020—special hearings\n\n(1) Despite the repeal of Part 11, a special hearing by judge alone in which judgment was not delivered before that repeal may continue to be held by judge alone, without a jury, after that repeal.\n\n(2) For the purposes of a special hearing that continues in accordance with subsection (1), Part 11 continues to have effect despite its repeal.\n\n(3) On and after the repeal of section 103, a finding of a judge at a special hearing by judge alone has, for all purposes, the same effect as a finding of a jury.\n\n(4) Subsection (3) has effect despite the repeal of section 103.\n\n(5) In this section—\n\n***special hearing by judge alone*** means a special hearing held in accordance with an order under section 101 as in force immediately before its repeal.\n\nSch. 3 cl. 16C inserted by No. 11/2020 s. 31.\n\n","sortOrder":173},{"sectionNumber":"16C","sectionType":"section","heading":"Transitional provision—COVID-19 Omnibus (Emergency Measures) Act 2020—special hearings","content":"\t16C Transitional provision—COVID-19 Omnibus (Emergency Measures) Act 2020—special hearings\n\nOn and after the repeal of section 121, that section continues to apply, despite its repeal, in relation to any issue, application or review that a court—\n\n(a) has determined to decide or determine entirely on the basis of written submissions and without the appearance of the parties; and\n\n(b) has not yet so decided or determined.\n\nSch. 3 cl. 16D inserted by No. 11/2022 s. 7.\n\n","sortOrder":174},{"sectionNumber":"16D","sectionType":"section","heading":"Transitional provision—Justice Legislation Amendment (Trial by Judge Alone and Other Matters) Act 2022","content":"\t16D Transitional provision—Justice Legislation Amendment (Trial by Judge Alone and Other Matters) Act 2022\n\n(1) If an application for an order under section 94 is made before the repeal of Part 11, and is not determined before that repeal, then despite that repeal—\n\n(a) the application may be heard and determined as if Part 11 had not been repealed; and\n\n(b) for the purposes of the application, and any order made on the application, and any special hearing to which that order relates, Part 11 as in force immediately before its repeal continues to have effect.\n\n(2) If, immediately before the repeal of Part 11, there was in force an order under section 94 and judgment had not yet been delivered in the special hearing to which that order relates, then despite that repeal—\n\n(a) the order continues to have effect as if Part 11 had not been repealed; and\n\n(b) for the purposes of the order and the special hearing to which it relates, Part 11 as in force immediately before its repeal continues to have effect.\n\n(3) Subsection (2) applies in relation to an order whether or not the special hearing to which the order relates commenced before the repeal of Part 11.\n\n(4) On and after the repeal of section 96, a finding of a judge at a special hearing by judge alone has, for all purposes, the same effect as a finding of a jury.\n\n(5) Subsection (4) has effect despite the repeal of section 96.\n\n(6) Nothing in this section limits section 14 of the **Interpretation of Legislation Act 1984**.\n\n(7) In this section—\n\n***special hearing by judge alone*** means a special hearing held in accordance with an order under section 94 as in force before its repeal.\n\nSch. 3 cl. 17 inserted by No. 5/2025 s. 55.\n\n\t17 Transitional provision—Justice Legislation Amendment (Committals) Act 2025\n\nThe repeal of sections 8(1)(b), 22(3), 38M(1)(b) and 38ZC(2) by the **Justice Legislation Amendment (Committals) Act 2025** applies only to a committal proceeding commenced on or after the repeal of those provisions.\n\nEndnotes\n\n1 General information\n\nSee [www.legislation.vic.gov.au](http://www.legislation.vic.gov.au) for Victorian Bills, Acts and current Versions of legislation and up-to-date legislative information.\n\n*Minister's second reading speech—*\n\n*Legislative Assembly: 18 September 1997*\n\n*Legislative Council: 15 October 1997*\n\nThe long title for the Bill for this Act was \"A Bill to reform the law relating to fitness to stand trial for criminal offences and to the defence of insanity, to amend the **Corrections Act 1986**, the **Crimes Act 1958**, the **Intellectually Disabled Persons' Services Act 1986** and the **Mental Health Act 1986** and for other purposes.\"\n\n**Constitution Act 1975:**\n\n*Section 85(5) statement:*\n\n*Legislative Assembly: 18 September 1997*\n\n*Legislative Council: 15 October 1997*\n\n*Absolute majorities:*\n\n*Legislative Assembly: 8 October 1997 and 11 November 1997*\n\n*Legislative Council: 28 October 1997*\n\nThe **Crimes (Mental Impairment and Unfitness to be Tried) Act 1997** was assented to on 18 November 1997 and came into operation as follows: Part 1 (sections 1–5) on 18 November 1997: section 2(1); rest of Act on 18 April 1998: section 2(3).\n\nINTERPRETATION OF LEGISLATION ACT 1984 (ILA)\n\nStyle changes\n\nSection 54A of the ILA authorises the making of the style changes set out in Schedule 1 to that Act.\n\nReferences to ILA s. 39B\n\nSidenotes which cite ILA s. 39B refer to section 39B of the ILA which provides that where an undivided section or clause of a Schedule is amended by the insertion of one or more subsections or subclauses, the original section or clause becomes subsection or subclause (1) and is amended by the insertion of the expression \"(1)\" at the beginning of the original section or clause.\n\nInterpretation\n\nAs from 1 January 2001, amendments to section 36 of the ILA have the following effects:\n\n• Headings\n\nAll headings included in an Act which is passed on or after 1 January 2001 form part of that Act. Any heading inserted in an Act which was passed before 1 January 2001, by an Act passed on or after 1 January 2001, forms part of that Act. This includes headings to Parts, Divisions or Subdivisions in a Schedule; sections; clauses; items; tables; columns; examples; diagrams; notes or forms. See section 36(1A)(2A).\n\n• Examples, diagrams or notes\n\nAll examples, diagrams or notes included in an Act which is passed on or after 1 January 2001 form part of that Act. Any examples, diagrams or notes inserted in an Act which was passed before 1 January 2001, by an Act passed on or after 1 January 2001, form part of that Act. See section 36(3A).\n\n• Punctuation\n\nAll punctuation included in an Act which is passed on or after 1 January 2001 forms part of that Act. Any punctuation inserted in an Act which was passed before 1 January 2001, by an Act passed on or after 1 January 2001, forms part of that Act. See section 36(3B).\n\n• Provision numbers\n\nAll provision numbers included in an Act form part of that Act, whether inserted in the Act before, on or after 1 January 2001. Provision numbers include section numbers, subsection numbers, paragraphs and subparagraphs. See section 36(3C).\n\n• Location of \"legislative items\"\n\nA \"legislative item\" is a penalty, an example or a note. As from 13 October 2004, a legislative item relating to a provision of an Act is taken to be at the foot of that provision even if it is preceded or followed by another legislative item that relates to that provision. For example, if a penalty at the foot of a provision is followed by a note, both of these legislative items will be regarded as being at the foot of that provision. See section 36B.\n\n• Other material\n\nAny explanatory memorandum, table of provisions, endnotes, index and other material printed after the Endnotes does not form part of an Act.  \nSee section 36(3)(3D)(3E).\n\n2 Table of Amendments\n\nThis publication incorporates amendments made to the **Crimes (Mental Impairment and Unfitness to be Tried) Act 1997** by Acts and subordinate instruments.\n\n–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––\n\n**Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, No. 65/1997**\n\n| Assent Date: | 18.11.97 |\n| Commencement Date: | S. 122 inserted on 25.4.20 by No. 11/2020 s. 30: s. 2 (as amended by No. 27/2020 s. 12); new s. 120 inserted on 30.3.22 by No. 11/2022 s. 6: s. 2 |\n| Note: | S. 122 repealed Pt 11 (ss 91–122) on 26.4.21; new s. 120 repealed new Pt 11 (new ss 91–120) on 30.3.23 |\n| Current State: | This information relates only to the provision/s amending the **Crimes (Mental Impairment and Unfitness to be Tried) Act 1997** |\n\n**Miscellaneous Acts (Omnibus No. 1) Act 1998, No. 43/1998**\n\n| Assent Date: | 26.5.98 |\n| Commencement Date: | S. 40 on 18.4.98: s. 2(3) |\n| Current State: | This information relates only to the provision/s amending the **Crimes (Mental Impairment and Unfitness to be Tried) Act 1997** |\n\n**Public Sector Reform (Miscellaneous Amendments) Act 1998, No. 46/1998**\n\n| Assent Date: | 26.5.98 |\n| Commencement Date: | S. 7(Sch. 1) on 1.7.98: s. 2(2) |\n| Current State: | This information relates only to the provision/s amending the **Crimes (Mental Impairment and Unfitness to be Tried) Act 1997** |\n\n**Psychologists Registration Act 2000, No. 41/2000**\n\n| Assent Date: | 6.6.00 |\n| Commencement Date: | S. 102(Sch. item 2) on 1.6.01: s. 2(2) |\n| Current State: | This information relates only to the provision/s amending the **Crimes (Mental Impairment and Unfitness to be Tried) Act 1997** |\n\n**Juries Act 2000, No. 53/2000**\n\n| Assent Date: | 12.9.00 |\n| Commencement Date: | S. 95 on 1.8.01: s. 2(3) |\n| Current State: | This information relates only to the provision/s amending the **Crimes (Mental Impairment and Unfitness to be Tried) Act 1997** |\n\n**Statute Law Further Amendment (Relationships) Act 2001, No. 72/2001**\n\n| Assent Date: | 7.11.01 |\n| Commencement Date: | S. 3(Sch. item 5) on 20.12.01: Government Gazette 20.12.01 p. 3127 |\n| Current State: | This information relates only to the provision/s amending the **Crimes (Mental Impairment and Unfitness to be Tried) Act 1997** |\n\n**Forensic Health Legislation (Amendment) Act 2002, No. 7/2002**\n\n| Assent Date: | 9.4.02 |\n| Commencement Date: | S. 50 on 10.4.02: s. 2(1); ss 3–33 on 1.7.02: s. 2(3) |\n| Current State: | This information relates only to the provision/s amending the **Crimes (Mental Impairment and Unfitness to be Tried) Act 1997** |\n\n**Mental Health Legislation (Commonwealth Detainees) Act 2004, No. 44/2004**\n\n| Assent Date: | 16.6.04 |\n| Commencement Date: | Ss 6–10 on 17.6.04: s. 2 |\n| Current State: | This information relates only to the provision/s amending the **Crimes (Mental Impairment and Unfitness to be Tried) Act 1997** |\n\n**Public Administration Act 2004, No. 108/2004**\n\n| Assent Date: | 21.12.04 |\n| Commencement Date: | S. 117(1)(Sch. 3 item 50) on 5.4.05: Government Gazette 31.3.05 p. 602 |\n| Current State: | This information relates only to the provision/s amending the **Crimes (Mental Impairment and Unfitness to be Tried) Act 1997** |\n\n**Statute Law Revision Act 2005, No. 10/2005**\n\n| Assent Date: | 27.4.05 |\n| Commencement Date: | S. 3(Sch. 1 item 7) on 28.4.05: s. 2 |\n| Current State: | This information relates only to the provision/s amending the **Crimes (Mental Impairment and Unfitness to be Tried) Act 1997** |\n\n**Legal Profession (Consequential Amendments) Act 2005, No. 18/2005**\n\n| Assent Date: | 24.5.05 |\n| Commencement Date: | S. 18(Sch. 1 item 30) on 12.12.05: Government Gazette 1.12.05 p. 2781 |\n| Current State: | This information relates only to the provision/s amending the **Crimes (Mental Impairment and Unfitness to be Tried) Act 1997** |\n\n**Sentencing and Mental Health Acts (Amendment) Act 2005, No. 69/2005**\n\n| Assent Date: | 11.10.05 |\n| Commencement Date: | S. 27 on 1.10.06: s. 2(3) |\n| Current State: | This information relates only to the provision/s amending the **Crimes (Mental Impairment and Unfitness to be Tried) Act 1997** |\n\n**Crimes (Homicide) Act 2005, No. 77/2005**\n\n| Assent Date: | 22.11.05 |\n| Commencement Date: | S. 10 on 23.11.05: s. 2 |\n| Current State: | This information relates only to the provision/s amending the **Crimes (Mental Impairment and Unfitness to be Tried) Act 1997** |\n\n**Health Professions Registration Act 2005, No. 97/2005**\n\n| Assent Date: | 7.12.05 |\n| Commencement Date: | S. 182(Sch. 4 item 15) on 1.7.07: s. 2(3) |\n| Current State: | This information relates only to the provision/s amending the **Crimes (Mental Impairment and Unfitness to be Tried) Act 1997** |\n\n**Disability Act 2006, No. 23/2006**\n\n| Assent Date: | 16.5.06 |\n| Commencement Date: | S. 237 on 1.7.07: s. 2(3) |\n| Current State: | This information relates only to the provision/s amending the **Crimes (Mental Impairment and Unfitness to be Tried) Act 1997** |\n\n**Public Sector Acts (Further Workplace Protection and Other Matters) Act 2006, No. 80/2006**\n\n| Assent Date: | 10.10.06 |\n| Commencement Date: | S. 26(Sch. item 22) on 11.10.06: s. 2(1) |\n| Current State: | This information relates only to the provision/s amending the **Crimes (Mental Impairment and Unfitness to be Tried) Act 1997** |\n\n**Relationships Act 2008, No. 12/2008**\n\n| Assent Date: | 15.4.08 |\n| Commencement Date: | S. 73(1)(Sch. 1 item 15) on 1.12.08: s. 2(2) |\n| Current State: | This information relates only to the provision/s amending the **Crimes (Mental Impairment and Unfitness to be Tried) Act 1997** |\n\n**Criminal Procedure Act 2009, No. 7/2009** (as amended by No. 68/2009)\n\n| Assent Date: | 10.3.09 |\n| Commencement Date: | Ss 423–425 on 1.1.10: Government Gazette 10.12.09 p. 3215 |\n| Current State: | This information relates only to the provision/s amending the **Crimes (Mental Impairment and Unfitness to be Tried) Act 1997** |\n\n**Criminal Procedure Amendment (Consequential and Transitional Provisions) Act 2009, No. 68/2009**\n\n| Assent Date: | 24.11.09 |\n| Commencement Date: | S. 97(Sch. item 39) on 1.1.10: Government Gazette 10.12.09 p. 3215 |\n| Current State: | This information relates only to the provision/s amending the **Crimes (Mental Impairment and Unfitness to be Tried) Act 1997** |\n\n**Statute Law Amendment (Evidence Consequential Provisions) Act 2009, No. 69/2009**\n\n| Assent Date: | 24.11.09 |\n| Commencement Date: | S. 54(Sch. Pt 1 item 13), (Sch. Pt 2 item 17) on 1.1.10: s. 2(2) |\n| Current State: | This information relates only to the provision/s amending the **Crimes (Mental Impairment and Unfitness to be Tried) Act 1997** |\n\n**Statute Law Amendment (National Health Practitioner Regulation) Act 2010, No. 13/2010**\n\n| Assent Date: | 30.3.10 |\n| Commencement Date: | S. 51(Sch. item 18) on 1.7.10: s. 2(2) |\n| Current State: | This information relates only to the provision/s amending the **Crimes (Mental Impairment and Unfitness to be Tried) Act 1997** |\n\n**Health and Human Services Legislation Amendment Act 2010, No. 29/2010**\n\n| Assent Date: | 8.6.10 |\n| Commencement Date: | Ss 18–36 on 1.7.10: Special Gazette (No. 235) 23.6.10 p. 1 |\n| Current State: | This information relates only to the provision/s amending the **Crimes (Mental Impairment and Unfitness to be Tried) Act 1997** |\n\n**Courts Legislation Miscellaneous Amendments Act 2010, No. 34/2010**\n\n| Assent Date: | 15.6.10 |\n| Commencement Date: | S. 48 on 1.1.11: s. 2(5) |\n| Current State: | This information relates only to the provision/s amending the **Crimes (Mental Impairment and Unfitness to be Tried) Act 1997** |\n\n**Statute Law Revision Act 2011, No. 29/2011**\n\n| Assent Date: | 21.6.11 |\n| Commencement Date: | S. 3(Sch. 1 item 23) on 22.6.11: s. 2(1) |\n| Current State: | This information relates only to the provision/s amending the **Crimes (Mental Impairment and Unfitness to be Tried) Act 1997** |\n\n**Criminal Procedure Amendment (Double Jeopardy and Other Matters) Act 2011, No. 81/2011**\n\n| Assent Date: | 21.12.11 |\n| Commencement Date: | S. 22(4) on 21.12.11: s. 2(1) |\n| Current State: | This information relates only to the provision/s amending the **Crimes (Mental Impairment and Unfitness to be Tried) Act 1997** |\n\n**Statute Law Revision Act 2012, No. 43/2012**\n\n| Assent Date: | 27.6.12 |\n| Commencement Date: | S. 3(Sch. item 10) on 28.6.12: s. 2(1) |\n| Current State: | This information relates only to the provision/s amending the **Crimes (Mental Impairment and Unfitness to be Tried) Act 1997** |\n\n**Legal Profession Uniform Law Application Act 2014, No. 17/2014**\n\n| Assent Date: | 25.3.14 |\n| Commencement Date: | S. 160(Sch. 2 item 29) on 1.7.15: Special Gazette (No. 151) 16.6.15 p. 1 |\n| Current State: | This information relates only to the provision/s amending the **Crimes (Mental Impairment and Unfitness to be Tried) Act 1997** |\n\n**Mental Health Act 2014, No. 26/2014**\n\n| *Assent Date:* | 8.4.14 |\n| *Commencement Date:* | Ss 436–454 on 1.7.14: s. 2(1) |\n| *Current State:* | This information relates only to the provision/s amending the **Crimes (Mental Impairment and Unfitness to be Tried) Act 1997** |\n\n**Victoria Police Amendment (Consequential and Other Matters) Act 2014, No. 37/2014**\n\n| *Assent Date:* | 3.6.14 |\n| *Commencement Date:* | S. 10(Sch. item 39) on 1.7.14: Special Gazette (No. 200) 24.6.14 p. 2 |\n| *Current State:* | This information relates only to the provision/s amending the **Crimes (Mental Impairment and Unfitness to be Tried) Act 1997** |\n\n**Criminal Organisations Control and Other Acts Amendment Act 2014, No. 55/2014** (as amended by No. 79/2014)\n\n| Assent Date: | 26.8.14 |\n| Commencement Date: | Ss 119–131 on 31.10.14: Special Gazette (No. 330) 23.9.14 p. 1; s. 155 on 31.10.14: s. 2(2) |\n| Current State: | This information relates only to the provision/s amending the **Crimes (Mental Impairment and Unfitness to be Tried) Act 1997** |\n\n**Mental Health Amendment Act 2015, No. 15/2015**\n\n| *Assent Date:* | 12.5.15 |\n| *Commencement Date:* | Ss 34, 37, 38 on 25.11.15: Special Gazette (No. 363) 24.11.15 p. 1 |\n| *Current State:* | This information relates only to the provision/s amending the **Crimes (Mental Impairment and Unfitness to be Tried) Act 1997** |\n\n**Justice Legislation Amendment Act 2015, No. 20/2015[[5]](#endnote-5)**\n\n| Assent Date: | 16.6.15 |\n| Commencement Date: | Ss 33–37 on 17.6.15: s. 2(3) |\n| Current State: | This information relates only to the provision/s amending the **Crimes (Mental Impairment and Unfitness to be Tried) Act 1997** |\n\n**Justice Legislation Further Amendment Act 2016, No. 3/2016**\n\n| Assent Date: | 16.2.16 |\n| Commencement Date: | Ss 101–105, 107 on 1.5.16: Special Gazette (No. 114) 26.4.16 p. 1 |\n| Current State: | This information relates only to the provision/s amending the **Crimes (Mental Impairment and Unfitness to be Tried) Act 1997** |\n\n**Crimes Legislation Further Amendment Act 2017, No. 6/2017**\n\n| Assent Date: | 15.3.17 |\n| Commencement Date: | Ss 10–12 on 1.4.17: s. 2(2) |\n| Current State: | This information relates only to the provision/s amending the **Crimes (Mental Impairment and Unfitness to be Tried) Act 1997** |\n\n**Oaths and Affirmations Act 2018, No. 6/2018**\n\n| Assent Date: | 27.2.18 |\n| Commencement Date: | S. 68(Sch. 2 item 36) on 1.3.19: s. 2(2) |\n| Current State: | This information relates only to the provision/s amending the **Crimes (Mental Impairment and Unfitness to be Tried) Act 1997** |\n\n**Disability (National Disability Insurance Scheme Transition) Amendment Act 2019, No. 19/2019**\n\n| Assent Date: | 25.6.19 |\n| Commencement Date: | Ss 240–247 on 1.7.20: s. 2(4) |\n| Current State: | This information relates only to the provision/s amending the **Crimes (Mental Impairment and Unfitness to be Tried) Act 1997** |\n\n**COVID-19 Omnibus (Emergency Measures) Act 2020, No. 11/2020**\n\n| Assent Date: | 24.4.20 |\n| Commencement Date: | Ss 30, 31 on 25.4.20: s. 2 |\n| Current State: | This information relates only to the provision/s amending the **Crimes (Mental Impairment and Unfitness to be Tried) Act 1997** |\n\n**COVID-19 Omnibus (Emergency Measures) and Other Acts Amendment Act 2020, No. 27/2020**\n\n| Assent Date: | 20.10.20 |\n| Commencement Date: | Ss 11, 12 on 21.10.20: s. 2 |\n| Current State: | This information relates only to the provision/s amending the **Crimes (Mental Impairment and Unfitness to be Tried) Act 1997** |\n\n**Justice Legislation Amendment (System Enhancements and Other Matters) Act 2021, No. 11/2021**\n\n| *Assent Date:* | 23.3.21 |\n| *Commencement Date:* | Ss 121–123 on 26.4.21: s. 2(2) |\n| *Current State:* | This information relates only to the provision/s amending the **Crimes (Mental Impairment and Unfitness to be Tried) Act 1997** |\n\n**Justice Legislation Amendment (Criminal Procedure Disclosure and Other Matters) Act 2022, No. 1/2022**\n\n| Assent Date: | 15.2.22 |\n| Commencement Date: | Ss 82–86 on 29.3.22: Special Gazette (No. 157) 29.3.22 p. 1 |\n| Current State: | This information relates only to the provision/s amending the **Crimes (Mental Impairment and Unfitness to be Tried) Act 1997** |\n\n**Justice Legislation Amendment (Trial by Judge Alone and Other Matters) Act 2022, No. 11/2022**\n\n| Assent Date: | 29.3.22 |\n| Commencement Date: | Ss 6, 7 on 30.3.22: s. 2 |\n| Current State: | This information relates only to the provision/s amending the **Crimes (Mental Impairment and Unfitness to be Tried) Act 1997** |\n\n**Mental Health and Wellbeing Act 2022, No. 39/2022** (as amended by No. 20/2023)\n\n| Assent Date: | 6.9.22 |\n| Commencement Date: | Ss 815−819 on 1.9.23: s. 2(2) |\n| Current State: | This information relates only to the provision/s amending the **Crimes (Mental Impairment and Unfitness to be Tried) Act 1997** |\n\n**Youth Justice Act 2024, No. 32/2024**\n\n| Assent Date: | 10.9.24 |\n| Commencement Date: | Ss 792–795 on 30.9.25: s. 2(2) |\n| Current State: | This information relates only to the provision/s amending the **Crimes (Mental Impairment and Unfitness to be Tried) Act 1997** |\n\n**Justice Legislation Amendment (Committals) Act 2025, No. 5/2025**\n\n| Assent Date: | 25.2.25 |\n| Commencement Date: | Ss 51–55 on 28.12.25: s. 2(2) |\n| Current State: | This information relates only to the provision/s amending the **Crimes (Mental Impairment and Unfitness to be Tried) Act 1997** |\n\n–––––––––––––––––––––––––––––––––––––––––––––––––––––––––––––\n\n3 Explanatory details\n\n1. S. 18(4): Section 23 provides similarly to this subsection in relation to a finding of not guilty because of mental impairment under section 17(1)(b). [↑](#endnote-ref-1)\n\n2. S. 18(4)(b): Section 40(2) applies to an order under this section. [↑](#endnote-ref-2)\n\n3. S. 23(b): See note 2. [↑](#endnote-ref-3)\n\n4. S. 26(1): Part 6 applies to a supervision order.\n\n  **Guide to Children's Court Process – CMIA**\n\n  **![]()** [↑](#endnote-ref-4)\n\n5. Table of Amendments: The amendment proposed by section 34 of the **Justice Legislation Amendment Act 2015**, No. 20/2015 (*repealed*) is not included in this publication because the words \"Unless the court revokes the order, the court\" do not appear in section 38ZO(3).\n\n  Section 34 reads as follows:\n\n   **34 Variation of custodial supervision orders on application or review**\n\n  In section 38ZO(3) of the **Crimes (Mental Impairment and Unfitness to  \nbe Tried) Act 1997**, for \"Unless the court revokes the order, the court\" **substitute** \"The court\". [↑](#endnote-ref-5)","sortOrder":175}],"analysis":{"kimi_summary":{"_metrics":{"source":"grok-batch-everything"},"content_quality":"ok","complexity_score":8,"scope_assessment":{"changed":true,"description":"The 1997 Act originally focused on three purposes in s 1: defining unfitness criteria (s 6), replacing common law insanity with statutory mental impairment (s 20, abrogated in s 25), and new procedures for unfit persons or those not guilty by reason of mental impairment, primarily for indictable offences in Supreme or County Courts (s 4). Its scope has grown substantially: Part 5A (inserted 2014) now provides parallel but distinct rules for the Children's Court (including shorter 6-month limits and different supervision durations per ss 38ZI, 38ZO–38ZP); Parts 7A–7C add interstate transfers, absconder provisions, and international forensic patient reviews (requiring Victorian Minister agreements, interim dispositions, and nominal term adjustments per ss 73D–73R); detailed victim/family notice and report rights (ss 38B–38F, 42) and the Forensic Leave Panel (Part 7) were added or expanded post-1997; temporary judge-alone unfitness option (Div 2 of Part 2, inserted 2021, applying until s 10 substituted) and transitional provisions for 2021 amendments, Youth Justice Act 2024 minimum age increase (s 91), and others reflect ongoing adaptation. The legislation now functions as a comprehensive, cross-jurisdictional code far exceeding its initial adult-trial focus."},"complexity_factors":["47+ defined terms in s 3, many cross-referencing the Mental Health and Wellbeing Act 2022, Disability Act 2006, Criminal Procedure Act 2009, Children Youth and Families Act 2005 and Youth Justice Act 2024","10 Parts with nested Divisions (e.g. Part 2 has separate jury and judge-alone paths in Div 1 and temporary Div 2, repealed on substitution of s 10; Part 5A has 6 Divisions for Children's Court)","Conditional logic and exceptions throughout, e.g. prerequisites for custodial orders (certificate under s 47 required; no prison remand unless no practicable alternative per ss 10(3), 12(4), 26(4))","Multiple procedural pathways, presumptions (fitness presumed per s 7(1); mental impairment presumed absent per s 21(1)), standards of proof (balance of probabilities for fitness/impairment; beyond reasonable doubt for special hearing findings per s 17(2)), and time limits (e.g. 12 months to become fit per s 11(4), 3-month special hearing deadline per s 12(5))","Extensive appeal rights for accused, DPP, Attorney-General and Secretary at nearly every decision point (ss 14A, 14I, 19A, 24AA, 24A, 28A, 34, 34A, 57B, 58A and Part 5A equivalents), with specific filing rules, personal signing by DPP/Attorney-General, and Court of Appeal powers","Integration of evidence rules (ss 11(1A), 38(2)), reports (Part 6, ss 41–47), victim impact statements (s 38ZW, s 42), Forensic Leave Panel procedure (Part 7, Schedules 1–2), and interstate/international mechanisms (Parts 7A–7C requiring corresponding laws, informed consent per s 73C)"],"plain_english_summary":"**The Crimes (Mental Impairment and Unfitness to be Tried) Act 1997** is a Victorian law that sets clear rules for criminal cases where the accused person has a mental health condition or disability that affects their ability to participate in a trial or their responsibility for the alleged crime.\n\nIt does three key things:\n- **Defines unfitness to stand trial** (s 6): A person is unfit if their mental processes are disordered or impaired so they cannot understand the charge, enter a plea, follow the trial, understand evidence, or instruct their lawyer. Memory loss alone does not make someone unfit (s 6(2)).\n- **Creates a statutory defence of mental impairment** (s 20): This replaces the old common law 'insanity' defence (s 25). It applies if, at the time of the offence, the person's mental impairment meant they did not know what they were doing or did not know it was wrong (explained as being unable to reason with a moderate degree of sense and composure about whether reasonable people would think it wrong).\n- **Provides procedures and outcomes**: If someone is unfit, the court investigates (Part 2, with special rules for children in Part 5A). There are 'special hearings' (Part 3) to decide if the person committed the act. If not guilty because of mental impairment or a qualified finding of guilt at a special hearing, the person is usually made subject to a **supervision order** (Part 5) instead of ordinary punishment. These orders can be custodial (in a mental health service or residential treatment facility) or non-custodial, last for a 'nominal term' based on the offence seriousness (s 28), and are reviewed regularly (ss 35, 31–34). The law also covers leave of absence (Part 7), victim and family involvement (ss 38B–38F), appeals at every stage, and transfers between states or from overseas (Parts 7A–7C).\n\nIt affects accused people with mental impairments, their families, victims, courts (Supreme, County, Magistrates' and Children's), mental health services, the Director of Public Prosecutions, the Attorney-General, and the Secretary to the Department of Health and Human Services. It matters because it balances fairness to the person (treatment instead of punishment where appropriate), public safety (the principle in s 39 requires the least restriction consistent with community safety), and proper process. Decisions must consider the person's mental condition, offending relationship, risk, resources, and reports (s 40)."},"summary":{"complexity_score":7,"scope_assessment":{"changed":true,"description":"The Act was originally intended to consolidate and modernise Victoria's approach to mentally impaired accused persons, replacing fragmented older provisions. Over time, through successive amendments, its scope has expanded — particularly in relation to ongoing supervision order review mechanisms, the rights of victims to participate in proceedings, and the courts' supervisory jurisdiction. What began as primarily a procedural statute has evolved to incorporate broader therapeutic jurisprudence (a legal approach focused on rehabilitation and wellbeing) and victim engagement principles not prominent in the original 1997 design."},"complexity_factors":["Dual legal frameworks operating simultaneously (unfitness to be tried and mental impairment defence), each with distinct procedures and outcomes","Requires integration of legal standards with complex psychiatric and psychological assessments","Ongoing court supervision of orders means the legal process does not end at a single hearing — it is continuous and reviewable","Multiple types of orders available (custodial supervision, non-custodial supervision, unconditional release) with different criteria and conditions","Intersection of criminal law, mental health law, and human rights obligations creates layered obligations for practitioners","Definitions of key concepts like 'mental impairment' and 'unfitness' involve clinical judgment that must be translated into legal findings","Procedural complexity: special hearings differ significantly from standard criminal trials in rules, burdens, and outcomes","Version history suggests significant amendments over time, meaning practitioners must be alert to which version applies to a given case"],"plain_english_summary":"## Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Victoria)\n\nThis Victorian law deals with what happens when a person accused of a crime **cannot properly participate in their trial** because of a **mental illness or cognitive impairment** (such as severe intellectual disability, acquired brain injury, or a serious psychiatric condition).\n\n### Who does this affect?\n- People who are charged with a criminal offence but whose mental condition means they cannot understand the court process, instruct a lawyer, or follow proceedings\n- People who committed an act that would normally be a crime, but were so mentally unwell at the time that they cannot be held criminally responsible\n- Their families, carers, and support networks\n- Lawyers, judges, psychiatrists, and psychologists involved in criminal cases\n- The broader community, as the law must balance individual rights with public safety\n\n### What does it do?\nThe Act sets up a **special legal framework** for two distinct situations:\n\n1. **Unfitness to be tried** — If a person cannot meaningfully participate in their trial due to mental impairment, the court follows a different process. Instead of a normal criminal trial, a special hearing is held to determine whether the person actually committed the act (without finding them 'guilty' in the traditional sense).\n\n2. **Mental impairment defence** — If a person committed an act but, due to mental illness or impairment, did not understand what they were doing or that it was wrong, they are found 'not guilty because of mental impairment' rather than simply acquitted.\n\n### What happens after such a finding?\nThe court can make a range of **supervision orders** (legally enforceable arrangements that control where a person lives and what treatment they receive), including:\n- Detention in a secure mental health facility\n- Supervised release into the community with conditions\n- Unconditional release in some cases\n\nThe **court continues to oversee** these orders over time, and they can be changed as the person's condition improves or changes.\n\n### Why does it matter?\nThis law recognises that mentally impaired people should **not simply be imprisoned** like ordinary offenders, but also that the **community needs protection**. It tries to strike a balance between humane treatment and public safety, replacing older, harsher laws that gave little flexibility or ongoing oversight."},"flash_summary":{"complexity_score":9,"scope_assessment":{"changed":true,"description":"The original 1997 Act applied only to indictable offences in the Supreme Court and County Court, with limited application to the Magistrates' Court for summary offences. Since then, amendments have significantly expanded its scope: Part 5A (added in 2014) applies the scheme to the Children's Court, including summary offences and indictable offences heard summarily. Parts 7A, 7B and 7C were added to cover interstate transfers, persons absconding from interstate, and international forensic patients—none of which were in the original Act. The Act now also includes provisions for federal forensic patients, and transitional provisions have been added for increased minimum age of criminal responsibility. The original purpose was to reform fitness and insanity procedures for higher courts; it now covers a much broader range of proceedings, age groups, and jurisdictional contexts."},"complexity_factors":["Over 120 separate sections across 10 Parts and multiple Schedule","Approximately 40 defined terms in section 3, many cross-referencing other Acts","Nested structure: Parts divided into Divisions, with multiple layers of conditions and exceptions","Extensive cross-references both within the Act (e.g., sections referring to other sections) and to external Acts (e.g., Criminal Procedure Act, Mental Health and Wellbeing Act, Children Youth and Families Act)","Multiple parallel processes for adults (Supreme/County Court) and children (Children's Court) with similar but not identical provisions","Conditional logic: e.g., 'unless satisfied that safety would be endangered' appears repeatedly, creating discretionary complexity","Temporary provisions: Division 2 of Part 2 (judge-alone determination) is subject to repeal; Part 11 (COVID-19 measures) was inserted and later repealed with transitional savings","Numerous appeal rights with different time limits, signature requirements, and procedural rules","Transitional provisions (Schedule 3) with 17 clauses dealing with savings and amendments over many years","Tables for nominal terms and schedules for Panel membership and procedure add further detail"],"plain_english_summary":"This Victorian law sets out what happens when someone accused of a crime is mentally unfit to stand trial or was mentally impaired at the time of the offence. It replaces the old common law 'insanity' defence with a statutory 'mental impairment' defence. The law covers:\n\n- **Unfitness to stand trial**: A person is unfit if their mental disorder prevents them from understanding the charge, following the trial, or giving instructions. A judge or jury decides this. If unfit, the court can grant bail, remand in a mental health facility or prison, or later hold a 'special hearing' (similar to a trial) to determine if they committed the act.\n- **Mental impairment defence**: A person is not guilty by reason of mental impairment if, at the time of the offence, they did not know what they were doing or that it was wrong due to a mental condition.\n- **Outcomes**: If found not guilty due to mental impairment, or if a special hearing finds they committed the act, the court makes a 'supervision order'. This can be:\n  - **Custodial**: detention in a mental health facility, prison, or (for children) a youth justice centre.\n  - **Non-custodial**: release with conditions like treatment or supervision.\n  - Supervision orders have a 'nominal term' (like a sentence) and are reviewed regularly. The key principle is that restrictions on freedom should be kept to the minimum needed for community safety.\n- **Leave**: People under custodial orders can apply for leave (e.g., special leave for emergencies, extended leave for rehabilitation). A Forensic Leave Panel handles some leave decisions.\n- **Children**: Separate rules apply in the Children's Court, with shorter maximum supervision terms (up to 12 or 24 months depending on age).\n- **Interstate and international transfers**: The law allows transferring people on supervision orders between states, and deals with those who abscond to Victoria. It also covers international forensic patients (people transferred under international prisoner treaties).\n\nThe law affects accused persons with mental impairments, their victims and families, courts, mental health services, and correctional authorities. It matters because it provides a structured legal process for dealing with mentally impaired offenders, balancing public safety with individual rights.\n\n**Economic and practical considerations**: The legislation takes a procedural approach—it doesn't impose direct costs on business or individuals, but it does create compliance burdens for government agencies (e.g., preparing reports, managing supervision orders). The requirement for certificates of available services before making custodial orders can create bottlenecks if mental health facilities are full. The extensive appeal rights and review processes add legal costs and delay finality. The emphasis on minimising restrictions is a sensible check on state power, but the actual degree of supervision will depend on available resources and court discretion."}},"importantCases":[],"_links":{"self":"/api/acts/crimes-mental-impairment-and-unfitness-to-be-tried-act-1997","history":"/api/acts/crimes-mental-impairment-and-unfitness-to-be-tried-act-1997/history","analysis":"/api/acts/crimes-mental-impairment-and-unfitness-to-be-tried-act-1997/analysis","conflicts":"/api/acts/crimes-mental-impairment-and-unfitness-to-be-tried-act-1997/conflicts","importantCases":"/api/acts/crimes-mental-impairment-and-unfitness-to-be-tried-act-1997/important-cases","documents":"/api/acts/crimes-mental-impairment-and-unfitness-to-be-tried-act-1997/documents"}}