Supreme Court (Chapter VI Mental Impairment
and Unfitness To Be Tried Amendment) Rules 2014
S.R. No. 207/2014
TABLE OF PROVISIONS
Rule
1
2
3
4
5
6
7
Page
Object
Authorising provisions
Commencement
Principal Rules
New Rule 2.17.1 inserted
2.17.1 Application of this Part
New Order 3C
1
1
1
1
2
2
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
3C.02 Appeal by child against finding of unfitness to be tried
3C.03 Appeal by child against finding of not guilty because of
mental impairment
3C.04 Appeal by DPP against order for unconditional release
3C.05 Appeal by child against supervision order
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
3C.07 Affidavit in support
3C.08 Children's Court recording officer to give Court
documents when required
New Forms 6–3CA to 6–3CE inserted
2
2
2
3
3
3
3
5
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
i
Rule
Page
Form 6–3CD—Notice of Appeal by a Child Against Supervision
Order
11
Form 6–3CE—Notice of Appeal by *DPP/*AttorneyGeneral/*Secretary to the Department of Human
Services/*Secretary to the Department of Health
Against Supervision Order
13
═══════════════
ENDNOTES
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ii
STATUTORY RULES 2014
S.R. No. 207/2014
Supreme Court Act 1986
Supreme Court (Chapter VI Mental Impairment
and Unfitness To Be Tried Amendment) Rules 2014
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.
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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
(Mental Impairment and Unfitness to be
Tried) Act 1997 shall be in Form 6–3CB.
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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
(b) the grounds in the notice of appeal.
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(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—
(a) section 392 of the Criminal Procedure
Act 2009 in the case of an appeal by a
child; and
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(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 6–3CA
IN 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].
[Signed by or on behalf of the
appellant or by legal
practitioner on behalf of
appellant]
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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 6–3CB
IN 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
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 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.
The grounds of the appeal are:
[set out the grounds in numbered paragraphs].
[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.
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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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Amendment) Rules 2014
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Rule 3C.04
FORM 6–3CC
IN 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
TO the Registrar of the Children's Court at:
TO the Prothonotary at:
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.
The grounds of the appeal are:
[set out the grounds in numbered paragraphs].
Date:
[Signed personally by DPP]
PARTICULARS
1.
Address for service of appellant:
2.
Name and address of respondent child:
3.
Alleged offence(s) to which this appeal relates:
4.
Name and address of legal practitioner who represented appellant at
proceeding in the Children's Court:
5.
Name of counsel (if any) who represented appellant at proceeding in
the Children's Court:
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.
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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.
*Delete if not applicable
__________________
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Amendment) Rules 2014
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Rule 3C.05
FORM 6–3CD
IN 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
TO the Registrar of the Children's Court at:
TO the Prothonotary at:
AND TO the respondent [name]:
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].
The grounds of the appeal are:
[set out the grounds in numbered paragraphs].
[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.
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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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Amendment) Rules 2014
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Rule 3C.06
FORM 6–3CE
IN 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/*ATTORNEYGENERAL/*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:
TO the Prothonotary at:
AND TO the respondent [name of respondent child]:
I, [full name], the *Director of Public Prosecutions/*AttorneyGeneral/*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.
The grounds of the appeal are:
[set out the grounds in numbered paragraphs].
Date:
[Signed personally by
*DPP/*AttorneyGeneral/*Secretary to the
Department of Human
Services/*Secretary to the
Department of Health]
PARTICULARS
1.
Address for service of appellant:
2.
Name and address of respondent child:
3.
Alleged offence(s) to which this appeal relates:
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4.
Name and address of legal practitioner who represented appellant at
proceeding in the Children's Court:
5.
Name of counsel (if any) who represented appellant at proceeding in
the Children's Court:
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 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.
*Delete if not applicable
__________________".
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
S.R. No. 207/2014
ENDNOTES
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.
16