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Supreme Court (Chapter VI Mental Impairment and Unfitness To Be Tried Amendment) Rules 2014

S.R. No. 207/2014

TABLE OF PROVISIONSRule Page

1 Object 12 Authorising provisions 13 Commencement 14 Principal Rules 15 New Rule 2.17.1 inserted 2

2.17.1 Application of this Part 26 New Order 3C 2

ORDER 3C—APPEALS FROM CHILDREN'S COURT UNDER THE CRIMES (MENTAL IMPAIRMENT AND UNFITNESS TO BE TRIED) ACT 1997 2

3C.01 Application of Order 23C.02 Appeal by child against finding of unfitness to be tried 23C.03 Appeal by child against finding of not guilty because of

mental impairment 23C.04 Appeal by DPP against order for unconditional release 33C.05 Appeal by child against supervision order 33C.06 Appeal by DPP, Attorney-General or Secretary to the

Department of Human Services or Secretary to the Department of Health against supervision order 3

3C.07 Affidavit in support 33C.08 Children's Court recording officer to give Court

documents when required 57 New Forms 6–3CA to 6–3CE inserted 5

Form 6–3CA—Notice of Appeal by a Child Against Finding of Unfitness to be Tried 5

Form 6–3CB—Notice of Appeal by Child Against Finding of Not Guilty Because of Mental Impairment 7

Form 6–3CC—Notice of Appeal by DPP Against an Order for Unconditional Release 9

1

Form 6–3CD—Notice of Appeal by a Child Against Supervision Order 11

Form 6–3CE—Notice of Appeal by *DPP/*Attorney-General/*Secretary to the Department of Human Services/*Secretary to the Department of Health Against Supervision Order 13

═══════════════ENDNOTES 16

STATUTORY RULES 2014

S.R. No. 207/2014

Supreme Court Act 1986


The Judges of the Supreme Court make the following Rules:

1 Object

The object of these Rules is to amend Chapter VI of the Rules of the Supreme Court as a consequence of the enactment of Part 5 of the Criminal Organisations Control and Other Acts Amendment Act 2014 and in particular so as to deal with appeals to the Trial Division from decisions of the Children's Court constituted by the President of that Court in matters arising under the new Part 5A of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997.

2 Authorising provisions

These Rules are made under section 25 of the Supreme Court Act 1986 and all other enabling powers.

3 Commencement

These Rules come into operation on 31 October 2014.

4 Principal Rules

In these Rules, the Supreme Court (Criminal Procedure) Rules 20081 are called the Principal Rules.

1

5 New Rule 2.17.1 inserted

In Part 5 of Order 2 of the Principal Rules, before Rule 2.18 insert—

"2.17.1 Application of this Part

This Part of this Order does not apply to Part 5A of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997.".

6 New Order 3C

After Order 3B of the Principal Rules insert—

"ORDER 3C

APPEALS FROM CHILDREN'S COURT UNDER THE CRIMES (MENTAL IMPAIRMENT AND

UNFITNESS TO BE TRIED) ACT 1997

3C.01 Application of Order

This Order applies to appeals to the Trial Division from the Children's Court constituted by the President of that Court under Part 5A of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997.

3C.02 Appeal by child against finding of unfitness to be tried

A notice of appeal to the Trial Division under section 38U(1) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 shall be in Form 6–3CA.

3C.03 Appeal by child against finding of not guilty because of mental impairment

A notice of appeal to the Trial Division under section 38ZE(1) of the Crimes

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(Mental Impairment and Unfitness to be Tried) Act 1997 shall be in Form 6–3CB.

3C.04 Appeal by DPP against order for unconditional release

A notice of appeal to the Trial Division under section 38ZF(1) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 shall be in Form 6–3CC.

3C.05 Appeal by child against supervision order

A notice of appeal to the Trial Division under section 38ZJ(1) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 shall be in Form 6–3CD.

3C.06 Appeal by DPP, Attorney-General or Secretary to the Department of Human Services or Secretary to the Department of Health against supervision order

A notice of appeal to the Trial Division under section 38ZJ(2) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 shall be in Form 6–3CE.

3C.07 Affidavit in support

(1) At the time of filing a notice of appeal in accordance with Rule 3C.02, 3C.03, 3C.04, 3C.05 or 3C.06 (as the case requires), the appellant shall file an affidavit in support of the appeal, together with the requisite exhibits.

(2) The affidavit shall set out the acts, facts, matters and circumstances relating to—

(a) the finding or order of the Children's Court constituted by the President against which the appeal is brought; and

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(b) the grounds in the notice of appeal.

(3) There shall be included as exhibits to the affidavit—

(a) a copy of the charge, indictment or other written process against the appellant;

(b) a copy of the finding or order against which the appeal is brought; and

(c) a copy of any reasons given for the finding or order—

or their absence as exhibits shall be accounted for in the affidavit.

(4) There shall also be included as exhibits to the affidavit copies of all other documents on which the appellant intends to rely in support of the appeal, insofar as those documents or copies are within the possession or power of the appellant.

(5) At the time of transmitting the notice of appeal to the Supreme Court as required by the applicable provisions of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, the Children's Court shall also transmit to the Supreme Court the affidavit and exhibits filed by the appellant under this Rule.

(6) At the time of serving the notice of appeal as required by the applicable provisions of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997, the appellant shall also serve a copy of the affidavit and copies of the exhibits on the respondent in accordance with—

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(a) section 392 of the Criminal Procedure Act 2009 in the case of an appeal by a child; and

(b) section 391 of that Act in any other case.

3C.08 Children's Court recording officer to give Court documents when required

The Court may require the recording officer of the Children's Court to provide to the Court any documents retained by the Children's Court that are relevant to the appeal.

__________________".

7 New Forms 6–3CA to 6–3CE inserted

After Form 6–3BI of the Principal Rules insert—"Rule 3C.02

FORM 6–3CAIN THE MATTER of an appeal by [name], a child, under section 38U(1) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997

NOTICE OF APPEAL BY A CHILD AGAINST FINDING OF UNFITNESS TO BE TRIED

TO the Registrar of the Children's Court at:

TO the Prothonotary at:

AND TO the respondent [name]:

I, [full name of appellant], a child, appeal to the Trial Division of the Supreme Court under section 38U(1) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 against a finding that I am unfit to stand trial made by the Children's Court constituted by the President on [date] at [place].

The grounds of the appeal are:

[set out the grounds in numbered paragraphs].

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[Signed by or on behalf of the appellant or by legal practitioner on behalf of appellant]

PARTICULARS

1. Name and address of appellant:

2. Address for service of appellant:

3. Name and address of respondent:

4. Alleged offence(s) to which this appeal relates:

5. Name and address of legal practitioner who represented appellant at proceeding in the Children's Court:

6. Name of counsel (if any) who represented appellant at proceeding in the Children's Court:

*7. I intend to personally attend the hearing of the appeal.

*7. I intend to appear by audio visual link at the appeal.

ACCOMPANYING AFFIDAVIT

Filed with this notice of appeal is an affidavit in support and the requisite exhibits in accordance with Rule 3C.07 of Chapter VI of the Supreme Court Rules.

The Children's Court must transmit this notice and the accompanying affidavit and exhibits to the Prothonotary of the Supreme Court. The appellant must serve a copy of this notice and a copy of the accompanying affidavit and copies of the exhibits on the respondent in accordance with section 392 of the Criminal Procedure Act 2009 within 7 days after the day on which this notice is filed.

*Delete if not applicable

__________________

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Rule 3C.03

FORM 6–3CBIN THE MATTER of an appeal by [name], a child, under section 38ZE(1) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997

NOTICE OF APPEAL BY CHILD AGAINST FINDING OF NOT GUILTY BECAUSE OF MENTAL IMPAIRMENT




I, [full name of appellant], a child, appeal to the Trial Division of the Supreme Court under section 38ZE(1) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 against a finding of the Children's Court constituted by the President made on [date] at [place] and recorded against me that I am not guilty of *an alleged offence/*alleged offences because of mental impairment.




PARTICULARS









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__________________

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Rule 3C.04

FORM 6–3CCIN THE MATTER of an appeal by the DPP under section 38ZF(1) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997

NOTICE OF APPEAL BY DPP AGAINST AN ORDER FOR UNCONDITIONAL RELEASE



AND TO the respondent [name of respondent child]:

I, [full name], the Director of Public Prosecutions, appeal to the Trial Division of the Supreme Court under section 38ZF(1) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 against an order for unconditional release made by the Children's Court constituted by the President on [date] at [place] in relation to the respondent child [name].

I consider that the order for unconditional release should not have been made and that this appeal should be brought in the public interest.



Date:

[Signed personally by DPP]

PARTICULARS


2. Name and address of respondent child:






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__________________

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Rule 3C.05

FORM 6–3CDIN THE MATTER of an appeal by [name], a child, under section 38ZJ(1) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997

NOTICE OF APPEAL BY A CHILD AGAINST SUPERVISION ORDER




I, [full name of appellant], appeal to the Trial Division of the Supreme Court under section 38ZJ(1) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 against a supervision order made in relation to me by the Children's Court constituted by the President on [date] at [place].




PARTICULARS









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__________________

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Rule 3C.06

FORM 6–3CEIN THE MATTER of an appeal under section 38ZJ(2) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997

NOTICE OF APPEAL BY *DPP/*ATTORNEY-GENERAL/*SECRETARY TO THE

DEPARTMENT OF HUMAN SERVICES/*SECRETARY TO THE DEPARTMENT OF HEALTH AGAINST SUPERVISION

ORDER TO the Registrar of the Children's Court at:


AND TO the respondent [name of respondent child]:

I, [full name], the *Director of Public Prosecutions/*Attorney-General/*Secretary to the Department of Human Services/*Secretary to the Department of Health appeal to the Trial Division of the Supreme Court under section 38ZJ(2) of the Crimes (Mental Impairment and Unfitness to be Tried) Act 1997 against a supervision order made by the Children's Court constituted by the President on [date] at [place] in relation to the respondent child [name].

I consider that a different supervision order should have been made and that this appeal should be brought in the public interest.



Date:

[Signed personally by *DPP/*Attorney-General/*Secretary to the Department of Human Services/*Secretary to the Department of Health]

PARTICULARS


2. Name and address of respondent child:


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The Children's Court must transmit this notice and the accompanying affidavit and exhibits to the Prothonotary of the Supreme Court. The appellant must serve a copy of this notice and a copy of the accompanying affidavit and copies of the exhibits on the respondent in accordance with section 391 of the Criminal Procedure Act 2009 within 7 days after the day on which this notice is filed and provide a copy of the notice and a copy of the accompanying affidavit and copies of the exhibits to the legal practitioner who last represented the respondent in the proceeding in the Children's Court when the supervision order was made, if that legal practitioner can reasonably be identified.


__________________".

Dated: 30 October 2014

M. L. WARREN, C.J.

CHRISTOPHER MAXWELL, P.

ROBERT REDLICH, J.A.

MARK WEINBERG, J.A.

SIMON P. WHELAN, J.A.

J. G. SANTAMARIA, J.A.

DAVID F. R. BEACH, J.A.

K. WILLIAMS, J.

STEPHEN KAYE, J.

ELIZABETH HOLLINGWORTH, J.

KEVIN H. BELL, J.

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BETTY JUNE KING, J.

ANTHONY CAVANOUGH, J.

JACK FORREST, J.

JAMES JUDD, J.

TERRY FORREST, J.

KARIN EMERTON, J.

M. L. SIFRIS, J.

JOHN DIXON, J.

KATE McMILLAN, J.

GREG GARDE, J.

JAMES D. ELLIOTT, J.

T. J. GINNANE, J.

MELANIE SLOSS, J.

M. J. CROUCHER, J.

CHRISTOPHER W. BEALE, J.

MICHAEL McDONALD, J.═══════════════

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ENDNOTES

Endnotes S.R. No. 207/2014


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1 Rule 4: S.R. No. 12/2008. Reprint No. 1 as at 28 February 2011. Reprinted to S.R. No. 6/2011. Subsequently amended by S.R. Nos 120/2011, 39/2012, 48/2013 and 147/2013.

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