Div 3Aorder—see section 269NB;

Division 3A order—see section 269NB; drug means alcohol or any other substance that is capable (either alone or in combination with other substances) of influencing mental functioning; intoxication means a temporary disorder, abnormality or impairment of the mind that results from the consumption or administration of a drug; judge includes magistrate; limiting term for a supervision order—see section 269O; medical practitioner means a registered medical practitioner or registered dentist; mental illness means a pathological infirmity of the mind (including a temporary one of short duration)1; mental impairment includes— (a) a mental illness; or (b) an intellectual disability; or (c) a disability or impairment of the mind resulting from senility; Minister means the Minister responsible for the administration of the Mental Health Act 1993; next of kin of a person means a person's spouse, domestic partner, parents and children; objective element of an offence means an element of an offence that is not a subjective element; prescribed authority means— (a) the person for the time being performing the duties, or holding or acting in the position, of the Clinical Director, Forensic Mental Health Service South Australia; or (b) if no such position exists—the person declared by the regulations to be the prescribed authority for the purposes of this Part; psychiatrist means a person registered under the Health Practitioner Regulation National Law as a specialist in psychiatry; recreational use of a drug—consumption of a drug is to be regarded as recreational use of the drug unless— (a) the drug is administered against the will, or without the knowledge, of the person who consumes it; or (b) the consumption occurs accidentally; or (c) the person who consumes the drug does so under duress, or as a result of fraud or reasonable mistake; or (d) the consumption is therapeutic; self-induced—see subsections (2a) and (2b); subjective element of an offence means voluntariness, intention, knowledge or some other mental state that is an element of the offence; supervision order—see section 269O; therapeutic—the consumption of a drug is to be regarded as therapeutic if— (ii) is consumed for a purpose recommended by the manufacturer and in accordance with the manufacturer's instructions; training centre means a training centre established for the detention of youths; victim, in relation to an offence or conduct that would, but for the perpetrator's mental impairment, have constituted an offence, means a person who suffered significant mental or physical injury as a direct consequence of the offence or the conduct; youth has the same meaning as in the Young Offenders Act 1993. (2) For the purposes of this Part— (a) the question whether a person was mentally competent to commit an offence is a question of fact; (b) the question whether a person is mentally unfit to stand trial on a charge of an offence is a question of fact. (2a) Intoxication resulting from the recreational use of a drug is to be regarded as self‑induced. (2b) If a person becomes intoxicated as a result of the combined effect of the therapeutic consumption of a drug and the recreational use of the same or another drug, the intoxication is to be regarded as self‑induced even though in part attributable to therapeutic consumption. (3) In applying a provision of this Part to a youth who is being or has been dealt with as a youth (and not as an adult)— (a) a reference to custody in a prison is to be read as detention in a training centre; and (b) a reference to the Parole Board is to be read as a reference to the Training Centre Review Board. 1 A condition that results from the reaction of a healthy mind to extraordinary external stimuli is not a mental illness, although such a condition may be evidence of mental illness if it involves some abnormality and is prone to recur (see R v Falconer (1990) 171 CLR 30). 269AB—Reference to finding of not guilty to include finding of mental incompetence A reference to a person being found not guilty of an offence in any Act, legislative instrument or other law will, unless the contrary intention appears, be taken to include a reference to a finding of a court under this Part that the objective elements of the offence are established but the person is not criminally responsible due to mental incompetence. 269B—Distribution of judicial functions between judge and jury (1) An investigation under this Part by the Supreme Court or the District Court into— (a) a defendant's mental competence to commit an offence or a defendant's mental fitness to stand trial; or (b) whether elements of the offence have been established, is to be conducted before a jury unless the defendant has elected to have the matter dealt with by a judge sitting alone. (2) The same jury may deal with issues arising under this Part about a defendant's mental competence to commit an offence, or fitness to stand trial, and the issues on which the defendant is to be tried, unless the trial judge thinks there are special reasons to have separate juries. (3) Any other powers or functions conferred on a court by this Part are to be exercised by the court constituted of a judge sitting alone. (4) The defendant's right to elect to have an investigation under this Part conducted by a judge sitting alone is not subject to any statutory qualification.1 1 The intention is to ensure that the right to elect for trial by judge alone is unfettered by the statutory qualifications on that right imposed by the Juries Act 1927 (thus preserving the principle enunciated in R v T [1999] SASC 429 on this point). 269BA—Charges on which alternative verdicts are possible (1) A person charged with an offence is taken, for the purposes of this Part, to be charged in the alternative with any lesser offence for which a conviction is possible on that charge. (2) It follows that a trial of a charge on which an alternative verdict for a lesser offence is possible is taken to be a trial of a charge of each of the offences for which a conviction is possible. Division 2—Mental competence to commit offences 269C—Mental competence (1) A person is mentally incompetent to commit an offence if, at the time of the conduct alleged to give rise to the offence, the person is suffering from a mental impairment and, in consequence of the mental impairment— (a) does not know the nature and quality of the conduct; or (b) does not know that the conduct is wrong; that is, the person could not reason about whether the conduct, as perceived by reasonable people, is wrong; or Paragraph (b) adopts the test as stated and excludes from consideration whether the defendant could reason with a moderate degree of sense and composure as set out in R v Porter (1936) 55 CLR 182. (c) is totally unable to control the conduct. (2) If, on an investigation under this Division, a person is found to be mentally incompetent to commit an offence and the trial judge is satisfied, on the balance of probabilities, that the mental impairment at the time of the conduct alleged to give rise to the offence was substantially caused by self‑induced intoxication (whether the intoxication occurred at the time of the relevant conduct or at any other time before the relevant conduct), the person may not be dealt with under this Part but may (if appropriate) be dealt with under Part 8. (3) However, despite the fact that the judge is satisfied that the person's mental impairment at the time of the conduct alleged to give rise to the offence was substantially caused by self‑induced intoxication, the judge may nevertheless make an order that the person be dealt with under this Part after taking into account— (a) the time and circumstances of when and how the intoxication caused the mental impairment; and (b) the interests of justice; and (c) whether the making of such an order would affect public confidence in the administration of justice. 269D—Presumption of mental competence A person's mental competence to commit an offence is to be presumed unless the person is found, on an investigation under this Division, to have been mentally incompetent to commit the offence. 269E—Reservation of question of mental competence (1) If, on the trial of a person for an offence— (a) the defendant raises a defence of mental incompetence; or (b) the court decides, on application by the prosecution or on its own initiative, that the defendant's mental competence to commit the offence should be investigated in the interests of the proper administration of justice, the question of the defendant's mental competence to commit the offence must be separated from the remainder of the trial. (2) The trial judge has a discretion to proceed first with the trial of the objective elements of the offence or with the trial of the mental competence of the defendant. (3) If, at committal proceedings for a charge of an indictable offence, the question of the defendant's mental competence to commit the offence arises, the question must be reserved for consideration by the court of trial. 269F—What happens if trial judge decides to proceed first with trial of defendant's mental competence to commit offence If the trial judge decides that the defendant's mental competence to commit the offence is to be tried first, the court proceeds as follows. A—Trial of defendant's mental competence (1) The court— (a) must hear relevant evidence and representations put to the court by the prosecution and the defence on the question of the defendant's mental competence to commit the offence; and (b) may require the defendant to undergo an examination by a psychiatrist or other appropriate expert and require the results of the examination to be reported to the court. (b) if the judge considers the examination and report necessary to prevent a possible miscarriage of justice—on the judge's own initiative. (3) At the conclusion of the trial of the defendant's mental competence, the court must decide whether it has been established, on the balance of probabilities, that the defendant was at the time of the alleged offence mentally incompetent to commit the offence and— (a) if so—must record a finding to that effect; (b) if not—must record a finding that the presumption of mental competence has not been displaced and proceed with the trial in the normal way. (a) dispense with, or terminate, an investigation into a defendant's mental competence to commit an offence; and (b) record a finding that the defendant was mentally incompetent to commit the offence. B—Trial of objective elements of offence (1) If the court records a finding that the defendant was mentally incompetent to commit the offence, the court must hear evidence and representations put to the court by the prosecution and the defence relevant to the question whether the court should find that the objective elements of the offence are established. (2) If the court is satisfied that the objective elements of the offence are established beyond reasonable doubt, the court must record a finding that the objective elements of the offence are established. (3) If the court finds that the objective elements of the offence are established, the court must record a finding of conduct proved but not criminally responsible due to mental incompetence, and (subject to Division 3A) declare the defendant to be liable to supervision under Division 4 Subdivision 2; but otherwise the court must find the defendant not guilty of the offence and discharge the defendant. (4) On the trial of the objective elements of an offence, the court is to exclude from consideration any question of whether the defendant's conduct is defensible. 269G—What happens if trial judge decides to proceed first with trial of objective elements of offence If the trial judge decides to proceed first with the trial of the objective elements of the offence, the court proceeds as follows. A—Trial of objective elements of offence (1) The court must first hear evidence and representations put to the court by the prosecution and the defence relevant to the question whether the court should find that the objective elements of the offence are established against the defendant. (2) If the court is satisfied that the objective elements of the offence are established beyond reasonable doubt, the court must record a finding that the objective elements of the offence are established; but otherwise the court must find the defendant not guilty of the offence and discharge the defendant. (3) On the trial of the objective elements of an offence, the court is to exclude from consideration any question of whether the defendant's conduct is defensible. B—Trial of defendant's mental competence (1) If the court records a finding that the objective elements of the offence are established, the court— (a) must hear relevant evidence and representations put to the court by the prosecution and the defence on the question of the defendant's mental competence to commit the offence; and (b) may require the defendant to undergo an examination by a psychiatrist or other appropriate expert and require the results of the examination to be reported to the court. (b) if the judge considers the examination and report necessary to prevent a possible miscarriage of justice—on the judge's own initiative. (3) At the conclusion of the trial of the defendant's mental competence, the court must decide whether it has been established, on the balance of probabilities, that the defendant was at the time of the alleged offence mentally incompetent to commit the offence and— (a) if so—must declare that the defendant was mentally incompetent to commit the offence, record a finding of conduct proved but not criminally responsible due to mental incompetence, and (subject to Division 3A) declare the defendant to be liable to supervision under Division 4 Subdivision 2; (b) if not—must record a finding that the presumption of mental competence has not been displaced and proceed with the trial in the normal way. (4) If the trial is to proceed under subsection B(3)(b), the objective elements of the offence are to be accepted as established. (a) dispense with, or terminate, an investigation into a defendant's mental competence to commit an offence; and (b) declare that the defendant was mentally incompetent to commit the offence, record a finding of conduct proved but not criminally responsible due to mental incompetence, and (subject to Division 3A) declare the defendant to be liable to supervision under Division 4 Subdivision 2. Division 3—Mental unfitness to stand trial 269H—Mental unfitness to stand trial A person is mentally unfit to stand trial on a charge of an offence if the person's mental processes are so disordered or impaired that the person is— (a) unable to understand, or to respond rationally to, the charge or the allegations on which the charge is based; or (b) unable to exercise (or to give rational instructions about the exercise of) procedural rights (such as, for example, the right to challenge jurors); or (c) unable to understand the nature of the proceedings, or to follow the evidence or the course of the proceedings. 269I—Presumption of mental fitness to stand trial A person's mental fitness to stand trial is to be presumed unless it is established, on an investigation under this Division, that the person is mentally unfit to stand trial. 269J—Order for investigation of mental fitness to stand trial (1) If there are reasonable grounds to suppose that a person is mentally unfit to stand trial, the court before which the person is to be tried may order an investigation under this Division of the defendant's mental fitness to stand trial. (2) The court's power to order an investigation into the defendant's mental fitness to stand trial may be exercised— (b) if the judge considers the investigation necessary to prevent a possible miscarriage of justice—on the judge's own initiative. (3) If a court orders an investigation into the defendant's mental fitness to stand trial after the trial begins, the court may adjourn or discontinue the trial to allow for the investigation. (4) If a court before which committal proceedings for an indictable offence are conducted is of the opinion that the defendant may be mentally unfit to stand trial, the committal proceedings may continue, but the court must raise for consideration by the court of trial the question whether there should be an investigation under this Division of the defendant's mental fitness to stand trial. 269K—Preliminary prognosis of defendant's condition (1) Before formally embarking on an investigation under this Division of a defendant's mental fitness to stand trial, a court may require production of psychiatric or other expert reports that may exist on the defendant's mental condition and may, if it thinks fit, itself have a report prepared on the defendant's mental condition. (2) If it appears from a report that the defendant is mentally unfit to stand trial but there is a reasonable prospect that the defendant will regain the necessary mental capacity over the next 12 months, the court may adjourn the defendant's trial for not more than 12 months. (3) If after the adjournment the court is of the opinion that the grounds on which the investigation was thought to be necessary no longer exist, the court may revoke the order for the investigation and the trial will then proceed in the normal way. 269L—Trial judge's discretion about course of trial If the court orders an investigation into a defendant's mental fitness to stand trial, the question of the defendant's mental fitness to stand trial may, at the discretion of the trial judge, be separately tried before any other issue that is to be tried or after a trial of the objective elements of the alleged offence. 269M—What happens if trial judge decides to proceed first with trial of defendant's mental fitness to stand trial If the trial judge decides that the defendant's mental fitness to stand trial is to be tried first, the court proceeds as follows. A—Trial of defendant's mental fitness to stand trial (1) The court— (a) must hear relevant evidence and representations put to the court by the prosecution and the defence on the question of the defendant's mental fitness to stand trial; and (b) may require the defendant to undergo an examination by a psychiatrist or other appropriate expert and require the results of the examination to be reported to the court. (b) if the judge considers the examination and report necessary to prevent a possible miscarriage of justice—on the judge's own initiative. (3) At the conclusion of the trial of the defendant's mental fitness to stand trial, the court must decide whether it has been established, on the balance of probabilities, that the defendant is mentally unfit to stand trial and— (a) if so—must record a finding to that effect; (b) if not—must proceed with the trial in the normal way. (a) dispense with, or terminate, an investigation into a defendant's fitness to stand trial; and (b) record a finding that the defendant is mentally unfit to stand trial. B—Trial of objective elements of offence (1) If the court records a finding that the defendant is mentally unfit to stand trial, the court must hear evidence and representations put to the court by the prosecution and the defence relevant to the question whether a finding should be recorded under this section that the objective elements of the offence are established. (2) If the court is satisfied beyond reasonable doubt that the objective elements of the offence are established, the court must record a finding to that effect, and (subject to Division 3A) declare the defendant to be liable to supervision under Division 4 Subdivision 2; but otherwise the court must find the defendant not guilty of the offence and discharge the defendant. (3) On the trial of the objective elements of an offence under this section, the court is to exclude from consideration any question of whether the defendant's conduct is defensible. 269N—What happens if trial judge decides to proceed first with trial of objective elements of offence If the trial judge decides to proceed first with the trial of the objective elements of the offence, the court proceeds as follows. A—Trial of objective elements of offence (1) The court must first hear evidence and representations put to the court by the prosecution and the defence relevant to the question whether the court should find that the objective elements of the offence are established. (2) If the court is satisfied beyond reasonable doubt that the objective elements of the offence are established, the court must record a finding to that effect; but otherwise the court must find the defendant not guilty of the offence and discharge the defendant. (3) On the trial of the objective elements of an offence under this section, the court is to exclude from consideration any question of whether the defendant's conduct is defensible. B—Trial of defendant's mental fitness to stand trial (1) If the court records a finding that the objective elements of the offence are established, the court— (a) must hear relevant evidence and representations put to the court by the prosecution and the defence on the question of the defendant's mental fitness to stand trial; and (b) may require the defendant to undergo an examination by a psychiatrist or other appropriate expert and require the results of the examination to be reported to the court. (b) if the judge considers the examination and report necessary to prevent a possible miscarriage of justice—on the judge's own initiative. (3) If the court is satisfied on the balance of probabilities that the defendant is mentally unfit to stand trial, the court must record a finding to that effect, and (subject to Division 3A) declare the defendant to be liable to supervision under Division 4 Subdivision 2. (4) If the court is not satisfied on the balance of probabilities that the defendant is mentally unfit to stand trial, the court must proceed with the trial of the remaining issues (or may, at its discretion, re-start the trial). (a) dispense with, or terminate, an investigation into a defendant's mental fitness to stand trial; and (b) declare that the defendant is mentally unfit to stand trial, and declare the defendant to be liable to supervision under this Part. Division 3A—Disposition of persons with mental impairment charged with summary and minor indictable offences