Div 4AInterstate transfer of persons subject to supervision order

Division 4A—Interstate transfer of persons subject to supervision order 269VB—Interpretation Chief Psychiatrist means the person appointed to the position of Chief Psychiatrist under the Mental Health Act 2009; corresponding law means a law, or a part of a law, of another State or a Territory of the Commonwealth declared by the regulations to be a corresponding law for the purposes of this Part; corresponding Minister, in relation to a participating jurisdiction, means the Minister or Ministers of that jurisdiction who is or are responsible for the administration of the corresponding law of that jurisdiction; guardian—a person is the guardian of another if the person is acting or appointed under any Act or law as the guardian of the other; interstate supervision order means an order made under a corresponding law that corresponds or substantially corresponds to a supervision order; participating jurisdiction means another State or a Territory of the Commonwealth in which a corresponding law is in force; South Australian Minister means the Minister administering this Part or, if there is more than 1 Minister administering this Part, those Ministers acting jointly; supervision order means— (a) a Division 3A order; or (b) a supervision order or a continuing supervision order made under Division 4. 269VC—Informed consent For the purposes of this Division, a person is to be taken to have given informed consent to a transfer or interim disposition only if the person gives written consent to the transfer or disposition (as the case requires) after— (a) the person 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 the person to make a balanced judgment; and (b) any relevant questions asked by the person have been answered and the person has understood the answers. 269VD—Transfer of persons from South Australia to another participating jurisdiction (1) A person who is subject to a supervision order may be transferred to a participating jurisdiction if— (a) the transfer is permitted under a corresponding law in that participating jurisdiction; and (b) the South Australian Minister makes an order under this section authorising the transfer. (2) The South Australian Minister may make an order under this section authorising a transfer if— (a) the Chief Psychiatrist has certified in writing that the transfer is for the benefit of the person subject to the supervision order; and (b) the South Australian Minister is satisfied that the transfer is permitted under a corresponding law in the participating jurisdiction; and (c) the South Australian Minister is satisfied that— (i) the person subject to the order has given informed consent to the transfer; or (ii) if the person is incapable of giving informed consent—his or her guardian has given informed consent to the transfer. (3) On the transfer of a person from South Australia 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 South Australia and while the person is in South Australia. 269VE—Transfer of persons from participating jurisdiction to South Australia (1) A person who is subject to an interstate supervision order may be transferred to South Australia if— (a) the transfer is permitted by or under a corresponding law in the participating jurisdiction in which the supervision order was made; and (b) the South Australian Minister has agreed to the transfer and determined an interim disposition for the person. (2) The South Australian Minister may agree to a transfer of a person to South Australia and determine an interim disposition if— (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 (b) the South Australian 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 (c) the South Australian Minister is satisfied that— (i) the person subject to the order has given informed consent to the transfer and interim disposition; or (ii) if the person is incapable of giving informed consent—his or her guardian has given informed consent to the transfer and interim disposition. (3) The interim dispositions that the South Australian Minister may determine under this section are— (a) that the person be released on licence as if the person were subject to a Division 3A order releasing the person on licence subject to the conditions imposed by section 269NB(4) and any other conditions imposed by the Minister; or (b) that the person be detained as if the person were subject to a supervision order under Division 4 committing the person to detention; or (c) that the person be released on licence as if the person were subject to a supervision order under Division 4 releasing the person on licence subject to the conditions imposed by section 269O(1a) and any other conditions imposed by the Minister. (4) On the transfer of a person to South Australia under this section— (a) if the interim disposition is that the person be detained—the person is to be so detained; and (b) if the interim disposition is that the person be released on licence—the person is taken to have been so released on licence under a Division 3A order or a supervision order made under Division 4. (5) Nothing in this section is to be taken as requiring the South Australian Minister to agree to a transfer of a person to South Australia. Division 5—Miscellaneous 269W—Counsel to have independent discretion (1) If the defendant is unable to instruct counsel on questions relevant to an investigation under this Part, the counsel may act, in the exercise of an independent discretion, in what he or she genuinely believes to be the defendant's best interests. (2) If the counsel for the defendant in criminal proceedings (apart from proceedings under this Part) has reason to believe that the defendant is unable, because of mental impairment, to give rational instructions on questions relevant to the proceedings (including whether to be tried by judge alone), the counsel may act, in the exercise of an independent discretion, in what the counsel genuinely believes to be the defendant's best interests. 269WA—Power to order examination etc in pre-trial proceedings (1) If in pre-trial proceedings it appears to the court that it might expedite the trial to order the examination of the defendant under this section in anticipation of trial, the court may, by order— (a) require the defendant to undergo an examination by a psychiatrist or other appropriate expert; and (b) require that the results of the examination be reported to the court. (2) The prosecution and the defence are entitled to access to the report. 269X—Power of court to deal with defendant before proceedings completed (1) If there is to be an investigation into a defendant's mental competence to commit an offence, or mental fitness to stand trial, or a court conducting committal proceedings reserves the question whether there should be such an investigation for consideration by the court of trial, the court by which the investigation is to be conducted, or the court reserving the question for consideration, may— (a) release the defendant on bail to appear later for the purposes of the investigation; or (b) commit the defendant to custody (in which case the defendant will, subject to subsections (4) and (5), be detained as if the defendant had been remanded in custody awaiting trial or sentence) until the conclusion of the investigation. (2) If a court declares a defendant to be liable to supervision under this Part, but unresolved questions remain about how the court is to deal with the defendant, the court may— (a) release the defendant on bail to appear subsequently to be dealt with by the court; or (b) commit the defendant to custody (being an appropriate form of custody determined, from time to time, by the Minister) until some subsequent date when the defendant is to be brought again before the court. (3) A defendant committed to custody under subsection (1)(b) is in the custody of the CE (regardless of where the defendant is detained or the form of custody in which the defendant is detained) and, subject to subsections (4) and (5), the CE may give such directions as to the custody, supervision and care of the defendant as the CE considers appropriate. (4) If, at the time at which a defendant is committed to custody under subsection (1)(b), the defendant is an involuntary inpatient at a treatment centre in accordance with the Mental Health Act 2009 (because the defendant is subject to an inpatient treatment order under that Act)— (a) the defendant must continue to be confined at the treatment centre for the duration of the inpatient treatment order and each subsequent inpatient treatment order that follows on from that order (if any); and (b) at the conclusion of the confinement referred to in paragraph (a), the defendant will (subject to subsection (5)) be detained as if the defendant had been remanded in custody awaiting trial or sentence. (5) If, at any time during the detention of a defendant under subsection (1)(b), the designated officer is satisfied that the defendant is not being detained in an appropriate form of custody, the designated officer may determine an appropriate form of custody and that determination is sufficient authorisation for the detention of the defendant in that alternative form of custody. (6) The regulations may make provision in relation to the manner in which the designated officer is to determine an appropriate form of custody for the purposes of subsection (5). CE has the same meaning as in the Correctional Services Act 1982; designated officer means the person, or holder of the office, prescribed by the regulations for the purposes of this section. 269Y—Appeals (1) An appeal lies to the appropriate appellate court against a declaration that a defendant is liable to supervision under Division 3A or Division 4 Subdivision 2 in the same way as an appeal against a conviction. (2) An appeal lies to the appropriate appellate court against a supervision order in the same way as an appeal against sentence. (3) An appeal lies with the permission of the court of trial or the appropriate appellate court against a key decision by the court of trial. (4) A key decision is— (a) a decision that the defendant was, or was not, mentally competent to commit the offence charged against the defendant; or (b) a decision that the defendant is, or is not, mentally unfit to stand trial; or (c) a decision that the objective elements of an offence are established against the defendant. (5) On an appeal, the appellate court may exercise one or more of the following powers: (a) confirm, set aside, vary or reverse a decision of the court of trial; (b) direct a retrial of the case or an issue arising in the case; (c) make any finding or exercise any power that could have been made or exercised by the court of trial; (d) make ancillary orders and directions. 269Z—Counselling of next of kin and victims (1) If an application is made under Division 4 that might result in a defendant being released from detention, the Minister must ensure that counselling services in respect of the application are made available to— (a) the defendant's next of kin; and (b) the victim (if any) of the defendant's conduct; and (c) if a victim was killed as a result of the defendant's conduct—the next of kin of the victim. (2) A person does not, in disclosing information about the defendant during the course of providing counselling under this section, breach any code or rule of professional ethics. 269ZA—Exclusion of evidence A finding made on an investigation into a defendant's fitness to stand trial does not establish an issue estoppel against the defendant in any later (civil or criminal) proceedings, and evidence of such a finding is not admissible against the defendant in criminal proceedings against the defendant. 269ZB—Arrest of person who escapes from detention etc (1) If a person who is committed to detention under this Part— (a) escapes from the detention; or (b) is absent, without proper authority, from the place of detention, the person may be arrested without warrant, and returned to the place of detention, by a police officer or an authorised person. (2) A Judge or other proper officer of a court by which a person is released on licence under this Part may, if satisfied that there are proper grounds to suspect that the person may have contravened or failed to comply with a condition of the licence, issue a warrant to have the person arrested and brought before the court.