Review of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997: Report

Appendix F: Presumptions and endangerment tests in the CMIA

Current presumptions in reviewing, varying and revoking orders in the CMIA

Stage

Presumption

Variation of custodial supervision order (CSO) during nominal term

(ss 32(1) and 32(2))

No presumption to vary the order

Court must either confirm the order, vary the place of custody or vary the order to a non-custodial supervision order (NCSO).

Court must not vary a CSO to a NCSO unless satisfied on the evidence available that the safety of the person subject to the order or members of the public will not be seriously endangered.

Court must not vary a CSO to a NCSO unless the forensic patient or resident has completed a period of 12 months extended leave. This applies whether during or after the nominal term.

Variation or revocation of NCSO during nominal term (s 33(1))

No presumption to vary or revoke the order

Court must either confirm the order, or vary the conditions of the order, or vary the order to a CSO, or revoke the order.

Major review of CSO (s 35(3)(a))

Presumption that the order will be varied

Court must vary the order to a NCSO unless satisfied on the evidence available that the safety of the person subject to the order or members of the public will be seriously endangered.

Major review of NCSO (s 35(3)(b))

No presumption to vary or revoke the order

The court may confirm the order, vary the conditions of the order or revoke the order.

Granting special leave (s 50(3))

Presumption that special leave will be granted

The authorised psychiatrist or Secretary to the Department of Human Services must grant the special leave of absence if satisfied that there are special circumstances and the safety of members of the public will not be seriously endangered.

Granting or varying on-ground or limited off-ground leave (ss 54(2), 54(3))

No presumption to grant or vary on-ground or limited off-ground leave

The Panel may grant on-ground or limited off-ground leave if satisfied that the proposed leave will contribute to the person’s rehabilitation and the safety of the person or members of the public will not be seriously endangered as a result of the person being allowed leave. Similar considerations for the variation of on-ground or limited off-ground leave.

Granting extended leave (s 57(2))

No presumption to grant extended leave

The court may grant an application if satisfied on the evidence available that the safety of the forensic patient or forensic resident or members of the public will not be seriously endangered as a result of the forensic patient or forensic resident being allowed extended leave.

Current tests for endangerment in the CMIA

Stage

Test

Making, varying and revoking an order (s 40(1)(c))

Likely to endanger

Court must consider whether the person is, or would if released be, likely to endanger themselves, another person, or other people generally because of his or her mental impairment.

Variation of CSO during nominal term (s 32(2))

Serious endangerment

Court must not vary a custodial supervision order to a non-custodial supervision order during the nominal term unless satisfied on the evidence available that the safety of the person subject to the order or members of the public will not be seriously endangered as a result of the release of the person on a non-custodial supervision order.

Major review of CSO (s 35(3)(a)(i))

Serious endangerment

Court must vary the order to a non-custodial supervision order, unless satisfied on the evidence available that the safety of the person subject to the order or members of the public will be seriously endangered as a result of the release of the person on a non custodial supervision order.

Granting special leave

(s 50(3)(b))

Serious endangerment

The authorised psychiatrist or Secretary to the Department of Human Services must grant an application for special leave of absence if satisfied the safety of members of the public will not be seriously endangered.

Granting and varying on-ground leave or limited off-ground leave (ss 54(2)(b) and 54(3)(b))

Serious endangerment

The Panel may grant an application for or vary on-ground leave or limited off-ground leave if satisfied the safety of the person or members of the public will not be seriously endangered as a result of the person being allowed leave.

Suspending special leave, on-ground leave or limited off-ground leave (s 55(1))

Serious endangerment

Special leave of absence, on-ground leave or limited off-ground leave may be suspended wholly or partly at any time by the Chief Psychiatrist (in the case of a forensic patient) or the Secretary to the Department of Human Services (in the case of a forensic resident) if the Chief Psychiatrist or Secretary is satisfied on the evidence available that the safety of the person on leave or members of the public will be seriously endangered if leave, or part of the leave is not suspended.

Granting extended leave (s 57(2))

Serious endangerment

The court may grant an application if satisfied on the evidence available that the safety of the forensic patient or forensic resident or members of the public will not be seriously endangered as a result of the forensic patient or forensic resident being allowed extended leave.

Granting extended leave (s 40(1)(c))

Likely to endanger

Court must consider whether the person is, or would if released be, likely to endanger themselves, another person, or other people generally because of his or her mental impairment.

Suspending or revoking extended leave (ss 58(1) and 58(4)(a))

Serious endangerment

Extended leave may be suspended at any time by the Chief Psychiatrist (in the case of a forensic patient) or the Secretary to the Department of Human Services (in the case of a forensic resident) if the Chief Psychiatrist or Secretary is satisfied on the evidence available that the safety of the person on leave or members of the public will be seriously endangered if leave is not suspended.

The court may then revoke the leave if satisfied on the evidence available that the safety of the forensic patient or forensic resident or members of the public will be seriously endangered if the suspension is not confirmed or leave is not revoked.

Revoking grant of extended leave (s 40(1)(c))

Likely to endanger

Court must consider whether the person is, or would if released be, likely to endanger themselves, another person, or other people generally because of his or her mental impairment.

Emergency power of apprehension (s 30(1)(b))

Serious endangerment

The safety of the person subject to the order or members of the public will be seriously endangered if the person is not apprehended.

Review of persons transferred to Victoria (s 74F(5))

Serious endangerment

The court cannot make a supervision order that is more restrictive on the person’s freedom and personal autonomy than the interstate supervision order to which the person was subject, unless satisfied that the safety of the person or members of the public would be seriously endangered if a more restrictive order is not made.

Revocation of Governor’s pleasure orders (sch 3 cl 4(2))

Serious endangerment

The court may revoke the supervision order if satisfied on the evidence available that the safety of the existing detainee or members of the public will not be seriously endangered as a result of the revocation of the order.