Subdiv 2Making, variation and revocation of Division 3A orders

Subdivision 2—Making, variation and revocation of Division 3A orders 269NB—Division 3A orders (1) This section applies in respect of a defendant who has been charged with a summary offence or a minor indictable offence in relation to which the court has found— (a) on an investigation under Division 2—that the objective elements of the offence are established but the defendant is not criminally responsible because the defendant was mentally incompetent to commit the offence; or (b) on an investigation under Division 3—that the objective elements of the offence are established but the defendant is mentally unfit to stand trial for the offence. (2) The court may— (a) dismiss the charge and release the defendant unconditionally; or (b) declare the defendant to be liable to supervision under Division 4 Subdivision 2; or (c) make an order (a Division 3A order) releasing the defendant on licence for the period (which must not exceed 5 years) specified by the court in the licence; or (d) adjourn the proceedings; or (e) remand the defendant on bail; or (f) make any other order that the court thinks fit. (3) If a Division 3A order is made releasing the defendant on licence, the licence is subject to the following conditions: (a) the conditions imposed by subsection (4); (b) any other condition decided by the court and specified in the licence. (4) Subject to this Act, every licence under subsection (2)(c) is subject to the following conditions: (a) a condition prohibiting the defendant from possessing a firearm or ammunition (both within the meaning of the Firearms Act 2015) or any part of a firearm; (b) a condition requiring the defendant to submit to such tests (including testing without notice) for gunshot residue as may be reasonably required by a person or body specified by the court. (5) A court may only vary or revoke the conditions imposed by subsection (4) if the defendant satisfies the court, by evidence given on oath, that— (b) the possession of a firearm, ammunition or part of a firearm by the defendant does not represent an undue risk to the safety of the public. (6) Without limiting the generality of subsection (3)(b), release on licence under a Division 3A order may, for example, be subject to— (b) a condition that the defendant be under the care of a responsible person (who must be specified in the licence); or (c) a condition that the defendant undergo assessment or treatment (or both) relating to the defendant's mental condition; or (d) a condition that the defendant be monitored by use of an electronic device approved under section 4 of the Correctional Services Act 1982; or (e) any other condition that the court thinks fit. (7) For the purpose of assisting a court to determine proceedings under this Division, the court may require the Crown to provide the court with a report setting out, so far as reasonably ascertainable, the views of— (a) the next of kin of the defendant; and (b) the victim (if any) of the defendant's conduct. 269NC—Court may direct defendant to surrender firearm etc (1) The court by which a defendant is declared to be liable to a Division 3A order may, in relation to the condition imposed by section 269NB(4)(a), direct the defendant to immediately surrender at a police station specified by the court any firearm, ammunition or part of a firearm owned or possessed by the defendant. (2) No criminal liability attaches to a person to the extent that the person is complying with a direction under this section. (3) The Commissioner of Police must deal with any surrendered firearm, ammunition or part of a firearm in accordance with the scheme set out in the regulations. (4) No compensation is payable by the Crown or any other person in respect of the exercise of a function or power under this section. (5) The regulations may provide for the payment, recovery or waiver of fees in respect of this section. 269ND—Variation or revocation of condition of Division 3A order At any time during the period that a defendant is subject to a Division 3A order, the court may, on the application of the Crown, the defendant, the Parole Board, the Public Advocate or another person with a proper interest in the matter (including a person who has been specified in the licence as a responsible person), vary or revoke the order and, if the order is revoked, make, in substitution for the order, any other order that the court might have made under this Division in the first instance. 269NDA—Revision of Division 3A orders (1) If a person who has been released on licence under this Division contravenes or is likely to contravene a condition of the licence, the court by which the Division 3A order was made may, on application by the Crown (which may be made, in a case of urgency, by telephone), review the order. (2) On an application for a review being made, the court may make an interim order in such terms as the court thinks appropriate in the circumstances, including an order that the person be detained in a specified place for a specified period pending the determination of the review. (3) After allowing the Crown and the person subject to the order a reasonable opportunity to be heard on the application for review, the court may do 1 or more of the following: (a) confirm the present terms of the Division 3A order; (b) amend the order by varying the conditions of the licence; (c) revoke the order and declare the defendant to be liable to supervision under Division 4 Subdivision 2; Subdivision 3—Administrative detention for defendant released on licence under this Division 269NE—Administrative detention for defendant released on licence under this Division (1) If a defendant who has been released on licence under a Division 3A order contravenes or is likely to contravene a condition of the licence, the prescribed authority may issue an order (an administrative detention order) that the defendant be detained in a specified place for a specified period (which must not exceed 14 days). (2) An administrative detention order must— (a) be directed to the Commissioner of Police and police officers generally; and (b) be in writing in the form approved by the Minister. (3) A person in respect of whom an administrative detention order has been issued who is taken into the care and control of a police officer under this Subdivision must be given a copy of the order as soon as practicable. (4) The progress and circumstances of a person detained under an administrative detention order must be reviewed as soon as reasonably practicable after the person is so detained— (a) to determine whether an application should be made to the court for a review of the Division 3A order to which the person is subject; and (b) for any other purpose as the prescribed authority thinks fit in the circumstances. (5) Despite subsection (1), a person who has been detained under an administrative detention order cannot be detained under another such order unless a period of at least 14 days has elapsed since the expiry of the previous administrative detention order. 269NF—Powers of police officers relating to persons in respect of whom an administrative detention order has been issued (1) This section applies to a person in respect of whom an administrative detention order has been issued under section 269NE. (2) A police officer may, subject to this section, exercise the following powers in relation to a person to whom this section applies: (a) the police officer may take the person into the officer's care and control; (b) the police officer may transport the person from place to place; (c) the police officer may restrain the person and otherwise use force in relation to the person as reasonably required in the circumstances; (d) the police officer may enter and remain in a place where the officer reasonably suspects the person may be found; (e) the police officer may use reasonable force to break into a place when that is reasonably required in order to take the person into the officer's care and control; (f) the police officer may search the person's clothing or possessions and take possession of anything in the person's possession that the person may use to cause harm to the person's self or others or property. (3) A police officer who takes the person into the officer's care and control must, as soon as practicable, transport the person, or arrange for the person to be transported by some other police officer, in accordance with the administrative detention order. (4) The powers conferred by this section continue to be exercisable as reasonably required for the purpose of enabling or facilitating the medical examination or treatment of the person. (5) A search of a person must be carried out expeditiously and in a manner that avoids, as far as reasonably practicable, causing the person any humiliation or offence. (6) Anything taken into the possession of a police officer under this section may be held for as long as is necessary for reasons of safety, but must otherwise be returned to the person from whom it was taken or dealt with according to law. Subdivision 4—Custody, supervision and care 269NG—Custody, supervision and care (1) If a defendant is committed to detention under this Division, the defendant is in the custody of the Minister and the Minister may give directions for the custody, supervision and care of the defendant the Minister considers appropriate. (2) The Minister may— (a) place the defendant under the custody, supervision and care of another; and (b) if there is no practicable alternative—direct that a defendant be kept in custody in a prison. (3) Supervisory responsibilities arising from conditions on which a person is released on licence are to be divided between the Parole Board and the Minister in the following way: (a) the supervisory responsibilities are to be exercised by the Minister insofar as they relate to treating or monitoring the mental condition of the person; and (b) the supervisory responsibilities are in all other respects to be exercised by the Parole Board. (4) The Minister or the Parole Board (as the case may be) may delegate a power or function under this section— (a) to a person for the time being performing particular duties or holding or acting in a particular position; or (b) to any other person or body that, in the delegator's opinion, is competent to perform or exercise the relevant functions or powers. (5) A delegation under subsection (4)— (a) must be by instrument in writing; and (b) may be absolute or conditional; and (c) does not derogate from the ability of the delegator to act in any matter; and (d) is revocable at will by the delegator.