35Matters to which courts are to have regard

### 35 Matters to which courts are to have regard > > (1)  In determining proceedings under this Part, a court must, in addition to applying the principle in [section 34](#GS34@EN) , have regard to – > > > > > > (a) the nature of the defendant's mental impairment or other condition or disability; and > > > > > > > (b) whether the defendant is, or would if released be, likely to endanger another person or other persons generally; and > > > > > > > (c) whether there are adequate resources available for the treatment and support of the defendant in the community; and > > > > > > > (d) whether the defendant is likely to comply with the conditions of a supervision order; and > > > > > > > (e) other matters that the court thinks relevant. > > > (2)  [*\[Section 35 Subsection (2) amended by No. 72 of 2005, s. 107, Applied:20 Feb 2006\]*](/view/html/inforce/2006-02-20/act-2005-072#GS107@Hpa@EN) A court may not discharge a restriction order, release a defendant under [section 18(2)](#GS18@Gs2@EN) or [21(1)](#GS21@Gs1@EN) or this Part or significantly reduce the degree of supervision to which a defendant is subject unless the court – > > > > > > (a) [*\[Section 35 Subsection (2) amended by No. 72 of 2005, s. 107, Applied:20 Feb 2006\]*](/view/html/inforce/2006-02-20/act-2005-072#GS107@Hpb@EN) [*\[Section 35 Subsection (2) amended by No. 3 of 2010, Sched. 1, Applied:01 Jul 2010\]*](/view/html/inforce/2010-07-01/act-2010-003#JS1@Ja18@GC2@Hpa@EN) [*\[Section 35 Subsection (2) amended by No. 21 of 2016, s. 12, Applied:11 Jul 2016\]*](/view/html/inforce/2016-07-11/act-2016-021#GS12@EN) [*\[Section 35 Subsection (2) amended by No. 4 of 2023, s. 19, Applied:25 Sep 2023\]*](/view/html/inforce/2023-09-25/act-2023-004#GS19@Hpa@EN) has considered the reports of the Chief Psychiatrist, or a medical practitioner nominated by the Chief Psychiatrist, and one other expert, who may or may not be a medical practitioner, each of whom has personally examined the defendant, on – > > > > > > > > > > (i) the condition of the defendant; and > > > > > > > > > > > (ii) the possible effects of the proposed action on the behaviour of the defendant; and > > > > > > > (b) has considered the report on the attitudes of victims, if any, and next of kin prepared under this Part; and > > > > > > > (c) is satisfied that the defendant's next of kin and the victims, if any, of the offence with which the defendant was charged have been given reasonable notice of the proceedings. > > > (3)  Notice need not be given under [subsection (2)(c)](#GS35@Gs2@Hpc@EN) to a person whose whereabouts have not, after reasonable inquiry, been ascertained. > > > (4)  [*\[Section 35 Subsection (4) inserted by No. 3 of 2010, Sched. 1, Applied:01 Jul 2010\]*](/view/html/inforce/2010-07-01/act-2010-003#JS1@Ja18@GC2@Hpb@EN) In this section – > > > > > ***medical practitioner*** means a person who – > > > > > > > > (a) is a psychiatrist; or > > > > > > > > > (b) [*\[Section 35 Subsection (4) amended by No. 4 of 2023, s. 19, Applied:25 Sep 2023\]*](/view/html/inforce/2023-09-25/act-2023-004#GS19@Hpb@EN) is a medical practitioner approved by the Chief Psychiatrist as holding the requisite training and experience to provide medico-legal reports to the court.