CRIMINAL CODE AMENDMENT (EXPERT PSYCHIATRIC OR MEDICAL EVIDENCE) BILL 2013 Second Reading Speech

Northern Territory Second Reading Speeches

CRIMINAL CODE AMENDMENT (EXPERT PSYCHIATRIC OR MEDICAL EVIDENCE) BILL 2013

(This an uncorrected proof of the daily report. It is made available under the condition that it is recognised as such.)

Mr Deputy Speaker, I move that the bill be now read a second time.

The Criminal Code Amendment (Expert Psychiatric or Medical Evidence) Bill 2013 implements the Northern Territory Law Reform Committee’s recommendations contained in the report on the defendants submitting to psychiatric or other medical examination, report No 36 of June 2012. That report recommended the Criminal Code Act be amended to empower a court, upon the application of the prosecution, and that the court’s discretion to require the accused person to submit to a psychiatric or other medical examination where a criminal defence based on a medical condition or particular state of mind is raised.

Part IIAA of the Criminal Code Act at sections 43G(1)(b), 43O(d) and 43P(3) allows the defence or prosecution to make an application to the court to require the accused person to submit to an examination by an appropriate expert where the defence of mental impairment is raised or there is an investigation regarding an accused person’s fitness to be tried.

Part IIAA of the Criminal Code Act also allows the court to make such an order on its own initiative. However, psychiatric and medical evidence can be used to show a criminal defence may reasonably exist in circumstances that do not amount to a mental impairment. In such cases, the defendant bears the onus of proving a reasonable possibility the defence existed, known as the evidentiary burden of proof, and that the prosecution bears the legal onus of disproving the defence beyond a reasonable doubt, known as the legal burden of proof.

The Law Reform Committee noted that when a criminal defence based on a medical condition or a particular state of mind is raised and the provisions of Part IIAA of the Criminal Code Act relating to mental impairment or an investigation regarding the fitness to plead are not applicable, the court does not have the power to require an accused

The Law Reform Committee noted that when a criminal defence, based on a medical condition or a particular state of mind is raised and the provisions of Part IIAA of the Criminal Code Act relating to mental impairment or an investigation regarding the fitness to plead are not applicable, the court does not have the power to require an accused person to undergo examination by either an independent medical expert or a prosecution expert.

This means that the prosecution is not in a position to:

(a) have the defendant examined by an expert witness approved by the court;

(b) call that expert to provide evidence of the results of their examination; and

(c) call the witness to give their expert opinion regarding the existence of the medical or psychiatric condition that forms part of the defence.

In their report, the Law Reform Committee stated that producing expert evidence to show a criminal defence may reasonably exist is not a ‘right to ambush’ the prosecution, and found the requirement to undergo a psychiatric or medical examination should apply regardless of whether the medical condition relates to a defence of mental impairment or any other criminal defence. At page 39 of their report, the Law Reform Committee recommended the Criminal Code be amended to ensure that, and I quote:

If the accused proposes to introduce expert psychiatric or other expert medical evidence relevant to an accused’s mental state or medical condition at the time of the alleged offence, the Court may, on application by a prosecutor, require the accused to submit, at the prosecution’s expense, to an examination by an independent expert approved by the court, and the Court may, on application of the prosecutor or the defence, allow such independent expert to be called to give evidence as to his examination of the accused, his findings and his opinions arising there from.

If the accused person refuses to admit to such an examination, the Law Reform Committee recommended the Criminal Code provide that, and I quote:

The prosecution may cross-examine the accused person or any expert witness called by the accused person who gives evidence, as to the reason for the accused’s refusal to submit to a medical or psychiatric examination.

This bill inserts section 331b into the Criminal Code and provides that:

(a) the section applies where the accused is to be tried upon indictment and intends to adduce expert psychiatric evidence or expert medical evidence relating to the accused’s state of mind or medical condition at the time of the alleged offending, regardless of whether the notice of the expert evidence requirement under Section 331a has been complied with

(b) the court may, upon application by the prosecutor, require the accused person to be examined by an independent expert

(c) the expert must be nominated by the prosecution and approved by the court
(d) the prosecution will bear the cost of such an examination
(e) the court may, upon application by either the prosecution or defence, allow the independent expert to be called to give evidence in chief for the applicant and therefore cross examined by the other party

(f) the independent expert may give evidence in relation to their examination of the accused including, any opinions or findings arising from the examination.

The bill provides that:

(a) if the accused refuses to undergo an examination, the prosecutor may cross examines the accused person or any expert witness called by the accused person, as to the possible reasons for the accused’s refusal to submit to a medical or psychiatric examination

(b) the prosecutor or the court may, when addressing the jury, comment on the refusal

(c) the court or prosecution cannot suggest that, as a result of the refusal, the accused is therefore guilty of the crime.
This provision mirrors section 331A(7)(b) of the Criminal Code.

This bill also states that Section 331B does not affect the operation of Part IIAA of the Criminal Code contains the procedures to be followed where mental impairment is raised or fitness to be tried is an issue.

It is important that section 331 B sits alongside, but does not affect, the operation of Part IIAA provisions.

Clause 5 of the bill inserts a transitional provision which provides that section 331B applies only in relation to an offence for which an accused person is committed for trial after the commencement of this act.

This government is committed to ensuring there are no loopholes or oversights in legislation and is committed to ensuring that administration of justice in the Northern Territory is properly served. I thank the Northern Territory Law Reform Commission for their diligence and hard work in the production of their report and for their considered and sensible recommendations.

I commend this bill to honourable members and table a copy of the explanatory statement.

Debate adjourned.

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