House of Representatives

Crimes Legislation Amendment (Serious and Organised Crime) Bill (No. 2) 2009

Explanatory Memorandum

Circulated by authority of the Attorney-General, the Honourable Robert McClelland MP

Schedule 6 - Unfitness to plead

GENERAL OUTLINE

The purpose of this Schedule is to preserve the right of a person accused of a federal offence in Victoria to appeal a finding that he or she is unfit to plead. This right of appeal is currently given to criminal defendants in Victoria by section 570C of the Crimes Act 1958 (Vic). This section applies to federal defendants due to the operation of section 68 of the Judiciary Act 1903 (Cth), which applies State and Territory laws relating to the arrest and custody of offenders, or people charged with an offence, and procedures for their bail, committal, trial, conviction and appeal, to people who have committed, or are accused of, a Commonwealth offence.

However, the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 (Vic) (CMIA) changed the Victorian law in this area by introducing a new scheme for dealing with defendants who have been found unfit to plead. Prior to the CMIA, a jury's finding that a person was unfit to plead operated, in effect, as a finalisation of criminal proceedings. The CMIA provides that criminal proceedings continue even if a person is not fit to stand trial, and that appeal powers exist in relation to the outcomes of those proceedings.

As section 570C of the Victorian Crimes Act no longer serves any purpose in relation to offences against Victorian law, the section was repealed, with effect from October 2009, by section 369 of the Criminal Procedure Act 2009 (Vic).

The Commonwealth provisions relating to the fitness of a federal defendant to be tried are set out at Division 6 of Part 1B of the Commonwealth Crimes Act. In accordance with sections 68 and 79 of the Judiciary Act, these provisions apply in concert with the relevant State and Territory provisions, unless the State or Territory provisions are incompatible with the Crimes Act provisions.

The scheme provided in the CMIA does not apply to people accused of a federal offence in Victoria as it is incompatible with Division 6 of Part 1B of the Commonwealth Crimes Act.

The Commonwealth Crimes Act does not provide federal defendants with a right of appeal equivalent to that in current section 570C of the Victorian Crimes Act. As a result, although that section is no longer required for people accused of offences against Victorian law, it retains relevance for federal offenders. If the appeal mechanism provided by section 570C of the Victorian Crimes Act is not maintained in some form, a federal defendant in Victoria would not be able to appeal a finding that he or she is unfit to plead. Such a finding may, under subsection 20(2) of the Commonwealth Crimes Act, result in the detention of the defendant in a hospital or prison for a period not exceeding the maximum term of imprisonment for the offence. Due to the potential serious consequences of a finding that a person is unfit to plead to a Commonwealth offence, it is critical that federal defendants are able to challenge such decisions.

Accordingly, this Schedule amends Division 6 of Part 1B of the Commonwealth Crimes Act to provide federal defendants with the ability to appeal a finding that they are unfit to plead, in a manner that reflects current section 570C of the Victorian Crimes Act.

Commencement

Current sections 570A and 570C of the Victorian Crimes Act were repealed by section 369 of the Victorian Criminal Procedure Act. However, the provisions of the Victorian Criminal Procedure Act that repeal sections 570A and 570C of the Victorian Crimes Act have not yet commenced and, at the time of preparing this Explanatory Memorandum, a firm date for their commencement had not been advised. The Commonwealth has been advised that the repeal will take effect in October 2009.

Given that federal defendants in Victoria will lose their ability to appeal a decision that they are unfit to plead when the relevant provisions of the Victorian Criminal Procedure Act come into effect, the commencement of this Schedule is linked to the commencement of subsection 369(4) of that Act.

Accordingly, item 2 of this Bill provides that items 1 and 2 of this Schedule commence at the later of:

the day after this enacted Bill receives Royal Assent, or
immediately after the commencement of subsection 369(4) of the Victorian Criminal Procedure Act.

This will ensure that there is no overlap between the operation of new section 20BI of the Commonwealth Crimes Act and sections 570A and 570C of the Victorian Crimes Act.

Item 2 of this Bill further provides that item 3 of this Schedule, which sets out transitional arrangements, commences immediately after the commencement of subsection 369(4) of the Victorian Criminal Procedure Act. If that provision commences before this Schedule, item 3 of this Schedule will commence retrospectively. This is necessary to preserve the rights of federal defendants in Victoria to appeal findings of unfitness to plead, to ensure the ability to conduct such appeals is maintained without interruption.

Crimes Act 1914

Item 1 - At the end of Division 6 of Part 1B

This item inserts new section 20BI into Division 6 of Part 1B of the Commonwealth Crimes Act. Division 6 sets out the Commonwealth provisions relating to the fitness of a federal defendant to be tried. In accordance with sections 68 and 79 of the Judiciary Act, Division 6 applies in concert with the relevant State and Territory provisions, unless the State or Territory provisions are incompatible with the Crimes Act provisions.

New section 20BI will reflect current section 570C of the Victorian Crimes Act to preserve the right of a person accused of a federal offence in Victoria to appeal a jury's finding that he or she is unfit to plead.

Current section 570C of the Victoria Crimes Act applies to federal defendants due to the operation of section 68 of the Judiciary Act.

As set out in the General Outline of this Schedule, above, Victoria has introduced a new scheme for dealing with defendants who have been found unfit to plead. This scheme is set out in the CMIA. As a result of the existence of the new scheme, section 570C of the Victorian Crimes Act no longer serves any purpose in relation to offences against Victorian law. Accordingly, the section was repealed, with effect from October 2009, by section 369 of the Victorian Criminal Procedure Act.

However, the new scheme set out in the CMIA does not apply to federal defendants as it is not compatible with the Commonwealth provisions set out at Division 6 of Part 1B of the Commonwealth Crimes Act. As a result, although section 570C of the Victorian Crimes Act is no longer required for people accused of offences against Victorian law, it retains relevance for federal offenders. As the Commonwealth Crimes Act does not provide a federal defendant with a right to appeal a decision that they are unfit to plead, if the appeal mechanism provided by section 570C of the Victorian Crimes Act is not maintained in some form, a federal defendant in Victoria would not be able to appeal a finding that he or she is unfit to plead.

Subsection 20BI(1) will explain that section 20BI will apply if, in the prosecution of a federal offence in the Trial Division of the Supreme Court of Victoria or in the County Court of Victoria, a jury has found that the person accused of the federal offence is unfit to be tried. This reflects the position in current subsection 570C of the Victorian Crimes Act.

Subsection 20BI(2) will provide that a federal defendant who comes within the parameters of subsection 20BI(1) (that is, that, in proceedings for a federal offence in the Trial Division of the Supreme Court of Victoria or in the County Court of Victoria for a federal offence, a jury has found that he or she is unfit to be tried) may appeal the jury's finding to the Court of Appeal of Victoria. Paragraphs 20BI(2)(a) to (c) set out the grounds on which such an appeal may be based. The ability to appeal to the Court of Appeal of Victoria reflects the position in current section 570C of the Victorian Crimes Act. The grounds of appeal reflect the grounds on which appeals under current section 570C may be based. These grounds are set out in current subsection 570A(1) of the Victorian Crimes Act.

Subsection 20BI(3) will set out the circumstances where the Court of Appeal must allow an appeal under subsection 20BI(2). The circumstances where an appeal must be allowed are the same as those set out in current subsection 507A(2) of the Victorian Crimes Act.

Under subsection 20BI(5), the Court of Appeal may dismiss an appeal under subsection 20BI(2) if it considers that no substantial miscarriage of justice has occurred. This provision applies even in circumstances where the Court would otherwise be required, by subsection 20BI(3) to allow the appeal. Subsection 20BI(5) reflects current subsection 507A(3) of the Victorian Crimes Act.

Subsection 20BI(6) will set out the action that may be taken if the Court of Appeal allows an appeal under subsection 20BI(2). It reflects current subsection 507C(2) of the Victorian Crimes Act.

Subsection 20BI(7) provides that the rules of court for the Court of Appeal of Victoria, which are made under the Supreme Court Act 1986 (Vic), may make provision for appeals under subsection 20BI(2) and proceedings relating to orders for the custody or bail of the accused applicant, under paragraph 20BI(6)(b). Sections 570A and 570C of the Victorian Crimes Act do not specifically refer to the ability of the Court of Appeal of Victoria to make rules about the conduct of appeals under those sections, as the authority for the Court of Appeal to make such rules is given by section 25 of the Supreme Court Act. Accordingly, subsection 20BI(7) continues the arrangements in relation to rules of court that apply under current sections 570A and 570C of the Victorian Crimes Act. It is intended to clarify that the Supreme Court has the ability to make such rules, even though the proceedings will arise from federal, rather than Victorian legislation.

Item 2 - Application of section 20BI of the Crimes Act 1914

This item clarifies that new section 20BI of the Commonwealth Crimes Act, as inserted by item 1 of this Schedule, applies to findings made before, on or after the commencement of that section. This will ensure that all federal defendants will retain the ability to appeal a finding that they are unfit to plead, regardless of whether that finding was made before or after the commencement of these amendments. Item 3 of this Schedule further clarifies the arrangements that apply to appeals against findings of unfitness to plead that are commenced, but not concluded, before the commencement of new section 20BI.

Item 3 - Transitional provision

Item 3 applies if a federal defendant had commenced an appeal, under section 570C of the Victorian Crimes Act, against a jury's finding that he or she was unfit to plead to a Commonwealth offence, but that appeal had not been finalised (including, if the appeal was allowed, by the court making orders for the defendant's safe custody or bail under subsection 570C(2) of the Act) before section 570C was repealed.

Subitem 3(1) provides that, in such a case, new section 20BI of the Commonwealth Crimes Act does not apply to the defendant (despite item 2 of this Schedule). Instead, sections 570A and 570C of the Victorian Crimes Act (and any other provisions of that Act in so far as they relate to sections 570C or 570A as applied by section 570C) as in force immediately before their repeal, continue to apply to the appeal proceedings of the federal defendant. This ensures that a federal defendant is able to continue and complete the process of appealing a decision that they are unfit to plead under the legislation under which those proceedings were instigated. This should be simpler and less confusing for defendants and their legal representatives.


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