Criminal Procedure (Mentally Impaired Persons) Act 2003

Subpart 5Assessment of defendants

38 Power of court to require assessment report
  • (1) When a person is in custody at any stage of a proceeding against the person, whether before or during the hearing or trial, or while awaiting sentence or the determination of an appeal, a court may, on the application of the prosecution or the defence or on its own initiative, order that a health assessor prepare an assessment report on the person for the purpose of assisting the court to determine 1 or more of the following matters:

    • (a) whether the person is unfit to stand trial:

    • (b) whether the person is insane within the meaning of section 23 of the Crimes Act 1961:

    • (c) the type and length of sentence that might be imposed on the person:

    • (d) the nature of a requirement that the court may impose on the person as part of, or as a condition of, a sentence or order.

    (2) If a court orders that an assessment report on a person be prepared under subsection (1), the court may—

    • (a) make it a condition of a grant of bail that the person go to a place approved by the court for the purpose of the assessment; or

    • (b) order that the person be detained in a prison for the purpose of the assessment for any period not exceeding 14 days as the court thinks fit; or

    • (c) order that the person be detained in a hospital or secure facility for the purpose of the assessment for any period not exceeding 14 days as the court thinks fit, if—

      • (i) a remand to a prison for that purpose would be inappropriate for any reason; and

      • (ii) a health assessor has expressed the opinion, in a certificate or in evidence, that it would be desirable if an assessment, or a further assessment, take place in a hospital or in a secure facility.

    (3) No order may be made under subsection (2)(b) or (c) in respect of a person if—

    • (a) the person is bailable as of right; or

    • (b) the person would have been released on bail but for the need for an assessment report.

    (4) If the court makes an order under subsection (2)(c) for a person's detention and assessment in a hospital or secure facility, it must record the reasons why it would have been inappropriate to order the detention of the person in a prison for that assessment.

    (5) Subsection (1)—

    • (a) has effect despite other enactments; but

    • (b) is subject, in the case of a defendant who is under 20 years, to sections 171 to 175 of the Criminal Procedure Act 2011 and to section 15 of the Bail Act 2000.

    Compare: 1985 No 120 s 121(1)–(4)

    Section 38(2)(b): amended, on 1 June 2005, by section 206 of the Corrections Act 2004 (2004 No 50).

    Section 38(2)(c)(i): amended, on 1 June 2005, by section 206 of the Corrections Act 2004 (2004 No 50).

    Section 38(4): amended, on 1 June 2005, by section 206 of the Corrections Act 2004 (2004 No 50).

    Section 38(5)(b): amended, on 1 July 2013, by section 4 of the Criminal Procedure (Mentally Impaired Persons) Amendment Act 2011 (2011 No 87).