Criminal Law Consolidation (Mental Impairment) Amendment Bill

Introduction and First Reading

The Hon. J.R. RAU (Enfield—Deputy Premier, Attorney-General, Minister for Justice Reform, Minister for Planning, Minister for Industrial Relations, Minister for Child Protection Reform, Minister for the Public Sector, Minister for Consumer and Business Services, Minister for the City of Adelaide) (10:44): Obtained leave and introduced a bill for an act to amend the Criminal Law Consolidation Act 1935. Read a first time.

Second Reading

The Hon. J.R. RAU (Enfield—Deputy Premier, Attorney-General, Minister for Justice Reform, Minister for Planning, Minister for Industrial Relations, Minister for Child Protection Reform, Minister for the Public Sector, Minister for Consumer and Business Services, Minister for the City of Adelaide) (10:44): I move:

That this bill be now read a second time.

The Criminal Law Consolidation (Mental Impairment) Amendment Bill 2016 implements a number of the recommendations contained in the Sentencing Advisory Council's report on the operation of part 8A of the Criminal Law Consolidation Act 1935.

The council is an advisory body comprised of representatives from the Director of Public Prosecutions, the Parole Board, the Legal Services Commission, the South Australian Bar Association, the Commissioner for Victims' Rights, the Law Society of South Australia, the Attorney-General's Department and South Australia Police. Its membership also includes community representatives and experts. In March 2012, the following terms of reference were referred to the council for its consideration:

To consider the operation of Part 8A of the Criminal Law Consolidation Act 1935 with particular reference to:

the test of mental incompetence in section 269C;

the fixing of limiting terms; and

the supervision of defendants released on licence pursuant to section 269O.

The council completed a recommendation report in November 2014, which contained 27 recommendations to the government, which included some proposals for legislative reform. This bill implements a number of these reforms. I seek leave to insert the remainder of the second reading explanation into Hansard without my reading it.

Leave granted.

The Council completed a Recommendation Report in November 2014 which contained 27 recommendations to the Government, which included some proposals for legislative reform. This Bill implements a number of these reforms.

The Bill amends section 269C of the Act to provide a clear legislative definition of 'mental incompetence'.

An additional 'gloss' was added to the definition of 'wrongfulness' in R v Porter (1936) 55 CLR 182. Justice Dixon's reference to whether the defendant could 'reason with a moderate degree of sense and composure' has been taken up in other decisions, and has become known as 'the Porter gloss'. The intention of the amendment to this subsection is to address one aspect of the Porter 'gloss' frequently used both in jury directions and in considerations by the court.

The Bill also amends section 269C(1)(c) to require that the defendant be totally unable to control his or her conduct, as recommended by the Council. The intention is to make clear that a partial inability to control one's conduct is not sufficient.

The Bill amends the Act by incorporating provisions which ensure that the paramount consideration of the court must be the safety of the community, when determining whether to release a defendant, or when considering a substantial change to a defendant's licence conditions. In addition, the Bill also explicitly provides that the paramount consideration of the safety of the community outweighs the principle that restrictions on the defendant's freedom and personal autonomy should be kept to a minimum.

This reform is firmly focussed on protecting the safety and well-being of the community.

The Bill inserts new provisions into the Act which provide for a licensee to be administratively detained for up to 14 days where future breaches of licence conditions are likely, or treatment is required to prevent future breaches.

These provisions expressly provide the prescribed authority with the power to direct the detention of a defendant for up to 14 days, without the person having an opportunity to be heard in Court, and for the prescribed authority to decide where the person will be detained. The prescribed authority is defined in section 269A as the person for the time being performing the duties, or holding or acting in the position of Clinical Director, Forensic Mental Health Service South Australia, or if no such person exists, a person declared by the Regulations. The amending provisions also explicitly provide police officers with powers to apprehend relevant licensees, without the need for a court warrant.

The Bill inserts new provisions into the Act, in Division 4 Subdivision 3 of Part 8A, providing for the continued supervision of a defendant. The Bill provides that the Crown may apply to the Supreme Court, within 12 months of the expiry of a defendant's limiting term, to have a continued supervision order made. If the order is made, a defendant will either then be committed to detention or released pursuant to licence conditions until such time as the order is revoked by the court.

There are currently no legislative provisions which permit licence conditions to be extended, or for there to be supervision of a defendant once a defendant's limiting term expires. They are simply released unconditionally. The intention of these provisions is to address concerns which have been raised that there are defendants who at the end of their limiting term remain a risk to the community and should continue to be supervised.

The Bill inserts provisions into the Act which are designed to provide more flexibility for courts of summary jurisdiction, as per a recommendation of the Council. The provisions inserted into Division 3A of Part 8A provide additional dispositions for people found not guilty due to mental incompetence.

These provisions only apply to courts of summary jurisdiction and apply where it has been found the defendant is mentally incompetent to commit the offence or mentally unfit to stand trial, but the court considers it appropriate to utilise these more flexible dispositions.

In these circumstances the court may dismiss the charge and discharge the defendant unconditionally, adjourn the proceedings, remand the defendant on bail or make any other order the court considers appropriate.

The provisions also provide for a court of summary jurisdiction to make a Division 3A order releasing a defendant on a licence for a period, which must not exceed 5 years, specified on the licence. This order is designed to be imposed for less serious offences and provides a less onerous avenue for disposition.

The use of the mental impairment defence has become much more common in summary proceedings, and the intention of this reform is to provide flexibility to Magistrates to deal with defendants through flexible remedies.

The Bill amends section 269T(2) of the Act by reducing the number of expert reports the court needs to rely on when considering releasing a defendant under Division 4, or when significantly reducing the degree of supervision to which a defendant is subject to.

A provision has been inserted to provide judicial officers with a discretion to order further reports where necessary.

Factors relevant to that discretion being exercised should include whether there is a dispute over the defendant's diagnosis, the nature of the defendant's impairment and whether it is likely to have changed, and whether the information already available to the court from previous reports is sufficient to address the matters in issue.

The intention of this amendment is to reduce unnecessary expense and unjustifiable delays.

The Bill inserts new provisions which provide for the co-operative interstate transfer of people under supervision in Division 4A of Part 8A.

The insertion of these new provisions will enable South Australian courts to set conditions of supervision where a person who has been under supervision in another participating Australian jurisdiction moves to South Australia. The provisions provide that the South Australian Minister must be satisfied of a number of conditions, and that the Chief Psychiatrist has certified in writing that the transfer is for the benefit of the person and that there are appropriate facilities available in South Australia for their custody, treatment or care.

The provisions also provide that defendants who are currently subject to supervision in South Australia can apply to move interstate to another participating jurisdiction. Similarly, the South Australian Minister must satisfy themselves of certain conditions and again the transfer can only be approved if the Chief Psychiatrist has certified in writing that the transfer is for the benefit of the person subject to the supervision order.

The intention of the insertion of Division 4A is to provide a clear mechanism which provides for the co-operative interstate transfer of people under supervision.

Finally, the Bill inserts a new provision into section 269C of the Act to stop offenders whose mental impairment was caused by self-induced intoxication from utilising the defence of mental incompetence in Part 8A.

Statistics collected from a case file review undertaken by the Attorney-General's Department indicated that almost a quarter of offenders who successfully used the mental incompetence defence were suffering from an impairment caused by drug induced psychosis or from substance abuse and dependence.

The new provision provides that if a person is found 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 caused (either wholly or in part) 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 Part 8A, but may (if appropriate) be dealt with under the Intoxication provisions in Part 8.

Further, the Bill inserts a definition of intoxication into section 267A. Intoxication is defined as a temporary disorder, abnormality or impairment of the mind that results from the consumption or administration of a drug. This same definition is also included in section 269A. The definition of mental impairment contained in section 269A has also been amended to delete reference to, 'but does not include intoxication'.

These amendments have been designed to address the issue that there are currently no provisions in the Act which specifically address the issue of comorbid mental impairment and substance abuse. The aim of these provisions is to prevent individuals from relying on the defence of mental incompetence if the mental impairment at the time of the conduct alleged to give rise to the offence was caused (either wholly or in part) by self-induced intoxication.

Defendants who seek to rely on the defence are now required to prove, on the balance of probabilities, that their ignorance of the nature and quality of their conduct, inability to appreciate that it was wrong, or inability to control their conduct was not a consequence of the combined effect of their mental illness and a state of self-induced intoxication. If they are unable to prove this, they would be prevented from relying on Part 8A of the Act and instead their case would need to be addressed in accordance with the intoxication provisions in Part 8.

This policy intent is reflected clearly in the Bill.

I commend the Bill to Members.

Explanation of Clauses

Part 1—Preliminary

1—Short title

2—Commencement

3—Amendment provisions

These clauses are formal.

Part 2—Amendment of Criminal Law Consolidation Act 1935

4—Amendment of section 267A—Definitions

This clause proposes to insert a definition of intoxication to match the definition to be inserted in section 269A of the Criminal Law Consolidation Act 1935 (the principal Act).

5—Amendment of section 269A—Interpretation

This clause proposes to insert a number of definitions for the purposes of Part 8A of the principal Act, including definitions that help to define intoxication.

6—Amendment of section 269C—Mental competence

Section 269C sets out the meaning of mental incompetence in relation to the offending conduct. Current paragraph (b) provides that 1 of the tests of mental incompetence to commit an offence is that the person does not know that the person's conduct is wrong. The proposed amendment to section 269C(b) clarifies that test by adding the explanation that this means the person could not reason about whether the conduct, as perceived by reasonable people, is wrong. This amendment would exclude a court, when considering the question, from considering whether the defendant could reason with a moderate degree of sense and composure (as set out in R v Porter (1936) 55 CLR 182). It is also proposed to amend paragraph (c) and insert an additional subsection that excludes mental incompetence caused wholly or in part by self-induced intoxication, whether the intoxication occurred at the time of the relevant conduct or at any time before the relevant conduct. It may be appropriate in circumstances where intoxication is a factor to deal with the matter under Part 8 of the principal Act but the matter may not be dealt with under Part 8A.

7—Amendment of section 269F—What happens if trial judge decides to proceed first with trial of defendant's mental competence to commit offence

8—Amendment of section 269G—What happens if trial judge decides to proceed first with trial of objective elements of offence

9—Amendment of section 269M—What happens if trial judge decides to proceed first with trial of defendant's mental fitness to stand trial

10—Amendment of section 269N—What happens if trial judge decides to proceed first with trial of objective elements of offence

These amendments are consequential on the proposed insertion of Division 3A under clause 11.

11—Insertion of Part 8A Division 3A

It is proposed to insert new Division 3A after section 269N. The Division makes provision for the court, when dealing with persons with mental impairment who have been charged with a summary or minor indictable offence, to dispose of the matters in a way other than under Division 4.

Division 3A—Disposition of persons with mental impairment charged with summary and minor indictable offences

Subdivision 1—Principle on which court is to act

269NA—Principle on which court is to act

The paramount consideration of the court in determining whether to release a defendant under this new Division, or the conditions of a licence, must be to protect the safety of the community (whether as individuals or in general). This paramount consideration outweighs the principle that restrictions on the defendant's freedom and personal autonomy should be kept to a minimum.

Subdivision 2—Making, variation and revocation of Division 3A orders

269NB—Division 3A orders

New section 269NB provides that the 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—

on an investigation under Division 2—that the objective elements of the offence are established but the defendant is not guilty of the offence because the defendant was mentally incompetent to commit the offence; or

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.

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.

If the Division 3A order is made releasing the defendant on licence, the licence is subject to conditions prohibiting the possession of firearms and ammunition and any other conditions decided by the court and specified in the licence. New section 269NB provides examples of the sorts of conditions that may be imposed on the licence and procedures for assisting in the determination of proceedings under this Division.

269NC—Court may direct defendant to surrender firearm etc.

New section 269NC gives a court power to direct a defendant to surrender any firearm, ammunition or part of a firearm owned or possessed by the defendant.

269ND—Variation or revocation of condition of Division 3A order

New section 269ND makes provision for the court to vary or revoke a condition of a Division 3A order on application by the Crown, the defendant, the Parole Board, the Public Advocate, or any other person with a proper interest in the matter.

Subdivision 3—Administrative detention for defendant released on licence under this Division

269NE—Administrative detention for defendant released on licence under this Division

This new section provides for administrative detention (for no more than 14 days) if a defendant who has been released on licence under a Division 3A order has breached, or is likely to breach, a condition of the order.

269NF—Powers of police officers relating to persons in respect of whom an administrative detention order has been issued

This new section sets out the powers that a police officer may exercise in relation to a person in respect of whom an administrative detention order has been issued under new section 269NE.

Subdivision 4—Custody, supervision and care

269NG—Custody, supervision and care

This section provides that a defendant who is committed to detention under Division 3A is in the custody of the Minister (being the Minister who is responsible for the administration of the Mental Health Act 1993) and sets out the division of responsibilities between the Minister and the Parole Board.

Subdivision 5—Effect of supervening imprisonment on Division 3A order

269NH—Effect of supervening imprisonment on Division 3A order

This section provides that a Division 3A order will be suspended for any period during which a person who has been released on licence under the order is in prison for an offence committed while subject to the licence.

12—Amendment of heading to Part 8A Division 4

This amendment is consequential on the insertion of new Division 3A.

13—Insertion of Part 8A Division 4 Subdivision 1

It is proposed to subdivide Division 4.

Subdivision 1—Principle on which court is to act

269NI—Principle on which court is to act

This section contains the principle on which the court is to act when determining whether to release a defendant under Division 4 or the conditions of a licence and is in identical terms to the principle set out in new section 269NA.

14—Insertion of heading to Part 8A Division 4 Subdivision 2

It is proposed to insert a Subdivision heading before current section 269O. Subdivision 2 will be headed 'Making, variation and revocation of supervision orders'.

15—Amendment of section 269O—Supervision orders

A number of the amendments proposed to section 269O are consequential on the insertion of new provisions in Part 8A of the principal Act; other amendments clarify the conditions that may be imposed on a supervision order under which a defendant is released on licence; and another updates an obsolete reference.

16—Amendment of section 269OA—Court may direct defendant to surrender firearm etc.

These proposed amendments are consequential or update the language of the section.

17—Amendment of section 269P—Variation or revocation of supervision order

These proposed amendments clarify what the court can do on an application for variation or revocation of a supervision order.

18—Amendment of section 269Q—Report on mental condition of defendant

19—Amendment of section 269R—Reports and statements to be provided to court

These amendments are consequential on the proposed insertion of Division 3A and Subdivision 3 in Division 4.

20—Repeal of section 269S

It is proposed to repeal this section as the principle on which a court is to act in respect of supervision orders and continuing supervision orders under Division 4 is now to be articulated in new section 269NI.

21—Amendment of section 269T—Matters to which court is to have regard

Currently, this section requires that a court must consider at least 3 expert reports when determining whether to release a defendant under a supervision order or significantly reduce the level of supervision over the defendant. The proposed amendments will allow for 1 expert report unless the court requires further additional expert reports. Another proposed amendment inserts a public safety consideration into the matters to be taken into account under this section.

22—Amendment of section 269U—Revision of supervision orders

The proposed amendment to section 269U(2) matches the proposed structure of section 269P.

23—Insertion of Part 8A Division 4 Subdivision 3

New Subdivision 3 is proposed to be inserted after section 269U.

Subdivision 3—Continuing supervision orders

269UA—Application for continuing supervision

New section 269UA provides that if a defendant is declared to be liable to supervision under Subdivision 2, whether before or after the commencement of this section, the Crown may, while the defendant remains liable to supervision, apply to the Supreme Court to have the defendant declared to be liable to supervision under a continuing supervision order. An application cannot be made more than 12 months before the end of the limiting term fixed in respect of the relevant supervision order (and the limiting term will be taken to continue until the application is determined by the Court). The section sets out the procedures for such an application, who may be heard and the matters that may be taken into consideration when determining such an application. If the Court is satisfied, on the balance of probabilities, that the defendant to whom the application relates could, if unsupervised, pose a serious risk to the safety of the community or a member of the community, the Court must declare that, on the expiry of the supervision order under Subdivision 2, the defendant is liable to continuing supervision under this Subdivision.

269UB—Continuing supervision orders

New section 269UB provides that if, under section 269UA, the Supreme Court declares a defendant to be liable to continuing supervision, the Court may make an order (a continuing supervision order)—

committing the defendant to detention under this Subdivision; or

releasing the defendant on licence.

If the order is made releasing the defendant on licence, the licence is subject to conditions prohibiting the possession of firearms and ammunition and any other conditions decided by the Supreme Court and specified in the licence. The section provides examples of the sorts of conditions that may be imposed on the licence. A continuing supervision order remains in force against the defendant until the order is revoked by the Supreme Court.

269UC—Variation or revocation of continuing supervision order

New section 269UC makes provision for the court to vary or revoke a condition of a continuing supervision order on application by the Crown, the defendant, the Parole Board, the Public Advocate, or any other person with a proper interest in the matter.

269UD—Appeal

New section 269UD makes provision for an appeal to the Full Court against a decision by the Supreme Court—

to make a declaration and order under this Subdivision; or

not to make a declaration and order under this Subdivision.

On such an appeal, the Full Court may confirm or annul the decision subject to the appeal; remit the decision to the Supreme Court for further consideration or reconsideration; make consequential or ancillary orders.

Subdivision 4—Administrative detention for defendant released on licence under this Division

269UE—Administrative detention for defendant released on licence under this Division

This new section provides for administrative detention (for no more than 14 days) if a defendant, who has been released on licence under a supervision order or a continuing supervision order under Division 4, has breached, or is likely to breach, a condition of the order.

269UF—Powers of police officers relating to persons in respect of whom an administrative detention order has been issued

This new section sets out the powers that a police officer may exercise in relation to a person in respect of whom an administrative detention order has been issued under new section 269UE.

24—Insertion of heading to Part 8A Division 4 Subdivision 5

The new Subdivision 5 heading is to be 'Custody, supervision and care'.

25—Amendment of section 269V—Custody, supervision and care

This amendment is consequential.

26—Insertion of heading to Part 8A Division 4 Subdivision 6

The new Subdivision 6 heading is to be 'Effect of supervening imprisonment on an order under Division 4'.

27—Insertion of Part 8A Division 4A

It is proposed to insert a new Division in Part 8A after Division 4 of the principal Act dealing with interstate transfer of persons subject to a supervision order.

Division 4A—Interstate transfer of persons subject to supervision order

269VB—Interpretation

This new section provides for the definitions of words and phrases for the purposes of this new Division. A supervision order, in new Division 4A, is defined to include a Division 3A order; and both a supervision order and a continuing supervision order under Division 4.

269VC—Informed consent

This new section defines what is to be taken to be informed consent for the purposes of new Division 4A.

269VD—Transfer of persons from South Australia to another participating jurisdiction

This new section sets out what needs to occur administratively to allow and facilitate the transfer of a person who is subject to a supervision order (as defined in new section 269VB) to be transferred to a participating jurisdiction.

269VE—Transfer of persons from participating jurisdiction to South Australia

This new section sets out what needs to occur administratively to allow and facilitate the transfer of a person who is subject to the equivalent of a supervision order under a corresponding law to be transferred from a participating jurisdiction to South Australia.

28—Amendment of section 269Y—Appeals

This proposed amendment is consequential.

29—Amendment of section 269ZB—Arrest of person who escapes from detention etc.

This proposed amendment brings the language of the provision up-to-date.

Debate adjourned on motion of Ms Chapman.