❓ Question regarding the ongoing incarceration of Marlon Noble despite no charges. The Attorney General explains the legal basis for detention under the Criminal Law (Mentally Impaired Accused) Act, highlighting the role of custody orders and the Mentally Impaired Accused Review Board.
AnsweredQoN 123Legislative Assembly
QuestionView source ↗
MARLON NOBLE — IMPRISONMENT
I refer to the case of Marlon Noble as reported in The West Australian this morning. (1) On 26 August 2010, the state of Western Australia indicated that it had no intention of proceeding with any charge against Mr Noble for any offence. On what basis does the state of Western Australia persist with his incarceration given that he is not an accused person? (2) Why did the Attorney General allow Mr Noble’s unlawful incarceration to continue since the time the Director of Public Prosecutions indicated that there was no intention to proceed with a prosecution against Mr Noble? (3) How many other people who do not face any charges and whom the DPP does not intend to charge are being held under the Criminal Law (Mentally Impaired Accused) Act? Mr C.C. PORTER
I refer to the case of Marlon Noble as reported in The West Australian this morning. (1) On 26 August 2010, the state of Western Australia indicated that it had no intention of proceeding with any charge against Mr Noble for any offence. On what basis does the state of Western Australia persist with his incarceration given that he is not an accused person? (2) Why did the Attorney General allow Mr Noble’s unlawful incarceration to continue since the time the Director of Public Prosecutions indicated that there was no intention to proceed with a prosecution against Mr Noble? (3) How many other people who do not face any charges and whom the DPP does not intend to charge are being held under the Criminal Law (Mentally Impaired Accused) Act? Mr C.C. PORTER
AnswerView source ↗
I thank the member for his question, which raises an interesting, if somewhat discrete, point of law; that is, when an unfitness to stand trial determination is made by a court, it is generally made at a time, obviously, when charges are laid and the person is before the court pursuant to those charges. In those circumstances, the court receives, on an application from the accused person’s counsel, submissions that the accused person is unfit to stand trial due to some or other mental infirmity. That is to be shown by the accused person on balance of probabilities, and the court accepts that or it rejects it. If it rejects that submission, the person stands trial. If the court accepts the submission that the person is unfit to stand trial, the person does not stand trail. In those circumstances, as I noted earlier, the framework of the act provides, with less serious offences, that the accused may actually be released and the charges dismissed. For more serious offences, it provides for the making of a custody order, which is what happened with Mr Noble. In making that custody order, as I noted, the court must take into account a range of matters, including, and very importantly, the strength of the evidence against the person. As a matter of legal procedure in the circumstances in which there is such a custody order, the indictment, which first brings the person to the court, is quashed under the Mental Health Act. When the custody order takes effect, the indictment is quashed. Mr J.R. Quigley : But if his health improves, he can re-present. Mr C.C. PORTER : The member for Mindarie should just listen for a moment and then make his submissions afterwards. Several members interjected. The SPEAKER : Thank you, members! Mr C.C. PORTER : At that point, under the provisions of the act, the person is held in custody pursuant to the custody order, and whether there is an indictment or not is irrelevant to the legal basis for the person being held in custody. In fact, the act provides for the fact that if there is a custody order, the indictment must be quashed. The member for Mindarie raises a good point. I do not think the strength of the point is in the concept that there must be an indictment on foot, or even the prospect of one, for the detention to be lawful. He raises a good point. But something to be considered here by me, when a recommendation one way or the other is made, is, given that there is some indication that an argument could be put by the DPP that the person is now, after years, fit to stand trial, the DPP has determined that that will not happen even if the evidence exists. The point of distinction, member for Mindarie, is that my understanding—I am very happy to go to the State Solicitor’s Office and seek formal advice on this—is that the existence or otherwise of an indictment, or even the contemplation of the existence of indictment, does not make unlawful the continuing detention under the custody order. Mr J.R. Quigley : Unjust, nonetheless. Mr C.C. PORTER : The point here is whether the best thing in balancing the right of the community to be protected from people alleged to have undertaken serious offences and not fit to stand trial and the right of this person to be free in circumstances in which it has not been proved against him that he committed those offences is presently being properly achieved. I would say that, at the moment, it is a very, very fine balance in these circumstances. The point the member for Mindarie raises is kind of technically legally interesting but wrong. The real point here is whether the continuing detention is in the best interests of this person and the state, given very finely balanced considerations. I have my doubts, but I must await the recommendations in the report from the Mentally Impaired Accused Review Board before I make a decision that then will go to the Governor, and that is what I will do. Mr P. Papalia : All she considers is what security the original sentence — Mr C.C. PORTER : She is who? Mr P. Papalia : The chair. When she assesses it, she gives undue weight to the original charge. She does not consider any of his behaviour since then. You know that’s the case. Mr C.C. PORTER : That is totally incorrect. If the member for Warnbro had ever read one of these reports, which he probably has not had an opportunity to do, he would see that, in making that determination about whether someone should be released either on conditions or at large, the board takes into account the original nature and seriousness of the offences, the strength of the case that was originally against the person, the continuing risk the person might pose to the community, the safety of the community, the ability to be properly supervised according to conditions, and a range of other factors. The system is not perfect, but it is a very good system. That brings me to the point put by a number of people in serious submissions to me that one of the central features of debate about this system is whether the executive wing of government—that is, the Attorney General of the day—should have the last say in these matters. A serious submission has been put out there that the Mentally Impaired Accused Review Board, or a body like it, stocked full of professionals as it is—psychiatrists and judicial officers—should have the final say in the release back into the community of a person who has been declared unfit to stand trial, and the executive government should not be involved at all. I do not think it is a very wise submission precisely for reasons such as this. I reserve the residual power when a recommendation is made for continuing detention to not observe that recommendation and make a different recommendation to the Governor or, indeed, if a recommendation comes up for conditional release or release at large, to refuse to make the on-recommendation to the Governor. I think the people of Western Australia are better served by having elected members in the executive in charge of that decision. Mr P. Papalia : I agree. Mr C.C. PORTER : The point is interesting, but I do not think critical to the decision at hand, which is: what do we do now when the report comes back from the Mentally Impaired Accused Review Board?
(1) On 26 August 2010, the state of Western Australia indicated that it had no intention of proceeding with any charge against Mr Noble for any offence. On what basis does the state of Western Australia persist with his incarceration given that he is not an accused person? (2) Why did the Attorney General allow Mr Noble’s unlawful incarceration to continue since the time the Director of Public Prosecutions indicated that there was no intention to proceed with a prosecution against Mr Noble? (3) How many other people who do not face any charges and whom the DPP does not intend to charge are being held under the Criminal Law (Mentally Impaired Accused) Act? Mr C.C. PORTER replied: I thank the member for his question, which raises an interesting, if somewhat discrete, point of law; that is, when an unfitness to stand trial determination is made by a court, it is generally made at a time, obviously, when charges are laid and the person is before the court pursuant to those charges. In those circumstances, the court receives, on an application from the accused person’s counsel, submissions that the accused person is unfit to stand trial due to some or other mental infirmity. That is to be shown by the accused person on balance of probabilities, and the court accepts that or it rejects it. If it rejects that submission, the person stands trial. If the court accepts the submission that the person is unfit to stand trial, the person does not stand trail. In those circumstances, as I noted earlier, the framework of the act provides, with less serious offences, that the accused may actually be released and the charges dismissed. For more serious offences, it provides for the making of a custody order, which is what happened with Mr Noble. In making that custody order, as I noted, the court must take into account a range of matters, including, and very importantly, the strength of the evidence against the person. As a matter of legal procedure in the circumstances in which there is such a custody order, the indictment, which first brings the person to the court, is quashed under the Mental Health Act. When the custody order takes effect, the indictment is quashed. Mr J.R. Quigley : But if his health improves, he can re-present. Mr C.C. PORTER : The member for Mindarie should just listen for a moment and then make his submissions afterwards. Several members interjected. The SPEAKER : Thank you, members! Mr C.C. PORTER : At that point, under the provisions of the act, the person is held in custody pursuant to the custody order, and whether there is an indictment or not is irrelevant to the legal basis for the person being held in custody. In fact, the act provides for the fact that if there is a custody order, the indictment must be quashed. The member for Mindarie raises a good point. I do not think the strength of the point is in the concept that there must be an indictment on foot, or even the prospect of one, for the detention to be lawful. He raises a good point. But something to be considered here by me, when a recommendation one way or the other is made, is, given that there is some indication that an argument could be put by the DPP that the person is now, after years, fit to stand trial, the DPP has determined that that will not happen even if the evidence exists. The point of distinction, member for Mindarie, is that my understanding—I am very happy to go to the State Solicitor’s Office and seek formal advice on this—is that the existence or otherwise of an indictment, or even the contemplation of the existence of indictment, does not make unlawful the continuing detention under the custody order. Mr J.R. Quigley : Unjust, nonetheless. Mr C.C. PORTER : The point here is whether the best thing in balancing the right of the community to be protected from people alleged to have undertaken serious offences and not fit to stand trial and the right of this person to be free in circumstances in which it has not been proved against him that he committed those offences is presently being properly achieved. I would say that, at the moment, it is a very, very fine balance in these circumstances. The point the member for Mindarie raises is kind of technically legally interesting but wrong. The real point here is whether the continuing detention is in the best interests of this person and the state, given very finely balanced considerations. I have my doubts, but I must await the recommendations in the report from the Mentally Impaired Accused Review Board before I make a decision that then will go to the Governor, and that is what I will do. Mr P. Papalia : All she considers is what security the original sentence — Mr C.C. PORTER : She is who? Mr P. Papalia : The chair. When she assesses it, she gives undue weight to the original charge. She does not consider any of his behaviour since then. You know that’s the case. Mr C.C. PORTER : That is totally incorrect. If the member for Warnbro had ever read one of these reports, which he probably has not had an opportunity to do, he would see that, in making that determination about whether someone should be released either on conditions or at large, the board takes into account the original nature and seriousness of the offences, the strength of the case that was originally against the person, the continuing risk the person might pose to the community, the safety of the community, the ability to be properly supervised according to conditions, and a range of other factors. The system is not perfect, but it is a very good system. That brings me to the point put by a number of people in serious submissions to me that one of the central features of debate about this system is whether the executive wing of government—that is, the Attorney General of the day—should have the last say in these matters. A serious submission has been put out there that the Mentally Impaired Accused Review Board, or a body like it, stocked full of professionals as it is—psychiatrists and judicial officers—should have the final say in the release back into the community of a person who has been declared unfit to stand trial, and the executive government should not be involved at all. I do not think it is a very wise submission precisely for reasons such as this. I reserve the residual power when a recommendation is made for continuing detention to not observe that recommendation and make a different recommendation to the Governor or, indeed, if a recommendation comes up for conditional release or release at large, to refuse to make the on-recommendation to the Governor. I think the people of Western Australia are better served by having elected members in the executive in charge of that decision. Mr P. Papalia : I agree. Mr C.C. PORTER : The point is interesting, but I do not think critical to the decision at hand, which is: what do we do now when the report comes back from the Mentally Impaired Accused Review Board?
(2) Why did the Attorney General allow Mr Noble’s unlawful incarceration to continue since the time the Director of Public Prosecutions indicated that there was no intention to proceed with a prosecution against Mr Noble? (3) How many other people who do not face any charges and whom the DPP does not intend to charge are being held under the Criminal Law (Mentally Impaired Accused) Act? Mr C.C. PORTER replied: I thank the member for his question, which raises an interesting, if somewhat discrete, point of law; that is, when an unfitness to stand trial determination is made by a court, it is generally made at a time, obviously, when charges are laid and the person is before the court pursuant to those charges. In those circumstances, the court receives, on an application from the accused person’s counsel, submissions that the accused person is unfit to stand trial due to some or other mental infirmity. That is to be shown by the accused person on balance of probabilities, and the court accepts that or it rejects it. If it rejects that submission, the person stands trial. If the court accepts the submission that the person is unfit to stand trial, the person does not stand trail. In those circumstances, as I noted earlier, the framework of the act provides, with less serious offences, that the accused may actually be released and the charges dismissed. For more serious offences, it provides for the making of a custody order, which is what happened with Mr Noble. In making that custody order, as I noted, the court must take into account a range of matters, including, and very importantly, the strength of the evidence against the person. As a matter of legal procedure in the circumstances in which there is such a custody order, the indictment, which first brings the person to the court, is quashed under the Mental Health Act. When the custody order takes effect, the indictment is quashed. Mr J.R. Quigley : But if his health improves, he can re-present. Mr C.C. PORTER : The member for Mindarie should just listen for a moment and then make his submissions afterwards. Several members interjected. The SPEAKER : Thank you, members! Mr C.C. PORTER : At that point, under the provisions of the act, the person is held in custody pursuant to the custody order, and whether there is an indictment or not is irrelevant to the legal basis for the person being held in custody. In fact, the act provides for the fact that if there is a custody order, the indictment must be quashed. The member for Mindarie raises a good point. I do not think the strength of the point is in the concept that there must be an indictment on foot, or even the prospect of one, for the detention to be lawful. He raises a good point. But something to be considered here by me, when a recommendation one way or the other is made, is, given that there is some indication that an argument could be put by the DPP that the person is now, after years, fit to stand trial, the DPP has determined that that will not happen even if the evidence exists. The point of distinction, member for Mindarie, is that my understanding—I am very happy to go to the State Solicitor’s Office and seek formal advice on this—is that the existence or otherwise of an indictment, or even the contemplation of the existence of indictment, does not make unlawful the continuing detention under the custody order. Mr J.R. Quigley : Unjust, nonetheless. Mr C.C. PORTER : The point here is whether the best thing in balancing the right of the community to be protected from people alleged to have undertaken serious offences and not fit to stand trial and the right of this person to be free in circumstances in which it has not been proved against him that he committed those offences is presently being properly achieved. I would say that, at the moment, it is a very, very fine balance in these circumstances. The point the member for Mindarie raises is kind of technically legally interesting but wrong. The real point here is whether the continuing detention is in the best interests of this person and the state, given very finely balanced considerations. I have my doubts, but I must await the recommendations in the report from the Mentally Impaired Accused Review Board before I make a decision that then will go to the Governor, and that is what I will do. Mr P. Papalia : All she considers is what security the original sentence — Mr C.C. PORTER : She is who? Mr P. Papalia : The chair. When she assesses it, she gives undue weight to the original charge. She does not consider any of his behaviour since then. You know that’s the case. Mr C.C. PORTER : That is totally incorrect. If the member for Warnbro had ever read one of these reports, which he probably has not had an opportunity to do, he would see that, in making that determination about whether someone should be released either on conditions or at large, the board takes into account the original nature and seriousness of the offences, the strength of the case that was originally against the person, the continuing risk the person might pose to the community, the safety of the community, the ability to be properly supervised according to conditions, and a range of other factors. The system is not perfect, but it is a very good system. That brings me to the point put by a number of people in serious submissions to me that one of the central features of debate about this system is whether the executive wing of government—that is, the Attorney General of the day—should have the last say in these matters. A serious submission has been put out there that the Mentally Impaired Accused Review Board, or a body like it, stocked full of professionals as it is—psychiatrists and judicial officers—should have the final say in the release back into the community of a person who has been declared unfit to stand trial, and the executive government should not be involved at all. I do not think it is a very wise submission precisely for reasons such as this. I reserve the residual power when a recommendation is made for continuing detention to not observe that recommendation and make a different recommendation to the Governor or, indeed, if a recommendation comes up for conditional release or release at large, to refuse to make the on-recommendation to the Governor. I think the people of Western Australia are better served by having elected members in the executive in charge of that decision. Mr P. Papalia : I agree. Mr C.C. PORTER : The point is interesting, but I do not think critical to the decision at hand, which is: what do we do now when the report comes back from the Mentally Impaired Accused Review Board?
(3) How many other people who do not face any charges and whom the DPP does not intend to charge are being held under the Criminal Law (Mentally Impaired Accused) Act? Mr C.C. PORTER replied: I thank the member for his question, which raises an interesting, if somewhat discrete, point of law; that is, when an unfitness to stand trial determination is made by a court, it is generally made at a time, obviously, when charges are laid and the person is before the court pursuant to those charges. In those circumstances, the court receives, on an application from the accused person’s counsel, submissions that the accused person is unfit to stand trial due to some or other mental infirmity. That is to be shown by the accused person on balance of probabilities, and the court accepts that or it rejects it. If it rejects that submission, the person stands trial. If the court accepts the submission that the person is unfit to stand trial, the person does not stand trail. In those circumstances, as I noted earlier, the framework of the act provides, with less serious offences, that the accused may actually be released and the charges dismissed. For more serious offences, it provides for the making of a custody order, which is what happened with Mr Noble. In making that custody order, as I noted, the court must take into account a range of matters, including, and very importantly, the strength of the evidence against the person. As a matter of legal procedure in the circumstances in which there is such a custody order, the indictment, which first brings the person to the court, is quashed under the Mental Health Act. When the custody order takes effect, the indictment is quashed. Mr J.R. Quigley : But if his health improves, he can re-present. Mr C.C. PORTER : The member for Mindarie should just listen for a moment and then make his submissions afterwards. Several members interjected. The SPEAKER : Thank you, members! Mr C.C. PORTER : At that point, under the provisions of the act, the person is held in custody pursuant to the custody order, and whether there is an indictment or not is irrelevant to the legal basis for the person being held in custody. In fact, the act provides for the fact that if there is a custody order, the indictment must be quashed. The member for Mindarie raises a good point. I do not think the strength of the point is in the concept that there must be an indictment on foot, or even the prospect of one, for the detention to be lawful. He raises a good point. But something to be considered here by me, when a recommendation one way or the other is made, is, given that there is some indication that an argument could be put by the DPP that the person is now, after years, fit to stand trial, the DPP has determined that that will not happen even if the evidence exists. The point of distinction, member for Mindarie, is that my understanding—I am very happy to go to the State Solicitor’s Office and seek formal advice on this—is that the existence or otherwise of an indictment, or even the contemplation of the existence of indictment, does not make unlawful the continuing detention under the custody order. Mr J.R. Quigley : Unjust, nonetheless. Mr C.C. PORTER : The point here is whether the best thing in balancing the right of the community to be protected from people alleged to have undertaken serious offences and not fit to stand trial and the right of this person to be free in circumstances in which it has not been proved against him that he committed those offences is presently being properly achieved. I would say that, at the moment, it is a very, very fine balance in these circumstances. The point the member for Mindarie raises is kind of technically legally interesting but wrong. The real point here is whether the continuing detention is in the best interests of this person and the state, given very finely balanced considerations. I have my doubts, but I must await the recommendations in the report from the Mentally Impaired Accused Review Board before I make a decision that then will go to the Governor, and that is what I will do. Mr P. Papalia : All she considers is what security the original sentence — Mr C.C. PORTER : She is who? Mr P. Papalia : The chair. When she assesses it, she gives undue weight to the original charge. She does not consider any of his behaviour since then. You know that’s the case. Mr C.C. PORTER : That is totally incorrect. If the member for Warnbro had ever read one of these reports, which he probably has not had an opportunity to do, he would see that, in making that determination about whether someone should be released either on conditions or at large, the board takes into account the original nature and seriousness of the offences, the strength of the case that was originally against the person, the continuing risk the person might pose to the community, the safety of the community, the ability to be properly supervised according to conditions, and a range of other factors. The system is not perfect, but it is a very good system. That brings me to the point put by a number of people in serious submissions to me that one of the central features of debate about this system is whether the executive wing of government—that is, the Attorney General of the day—should have the last say in these matters. A serious submission has been put out there that the Mentally Impaired Accused Review Board, or a body like it, stocked full of professionals as it is—psychiatrists and judicial officers—should have the final say in the release back into the community of a person who has been declared unfit to stand trial, and the executive government should not be involved at all. I do not think it is a very wise submission precisely for reasons such as this. I reserve the residual power when a recommendation is made for continuing detention to not observe that recommendation and make a different recommendation to the Governor or, indeed, if a recommendation comes up for conditional release or release at large, to refuse to make the on-recommendation to the Governor. I think the people of Western Australia are better served by having elected members in the executive in charge of that decision. Mr P. Papalia : I agree. Mr C.C. PORTER : The point is interesting, but I do not think critical to the decision at hand, which is: what do we do now when the report comes back from the Mentally Impaired Accused Review Board?
Mr C.C. PORTER replied: I thank the member for his question, which raises an interesting, if somewhat discrete, point of law; that is, when an unfitness to stand trial determination is made by a court, it is generally made at a time, obviously, when charges are laid and the person is before the court pursuant to those charges. In those circumstances, the court receives, on an application from the accused person’s counsel, submissions that the accused person is unfit to stand trial due to some or other mental infirmity. That is to be shown by the accused person on balance of probabilities, and the court accepts that or it rejects it. If it rejects that submission, the person stands trial. If the court accepts the submission that the person is unfit to stand trial, the person does not stand trail. In those circumstances, as I noted earlier, the framework of the act provides, with less serious offences, that the accused may actually be released and the charges dismissed. For more serious offences, it provides for the making of a custody order, which is what happened with Mr Noble. In making that custody order, as I noted, the court must take into account a range of matters, including, and very importantly, the strength of the evidence against the person. As a matter of legal procedure in the circumstances in which there is such a custody order, the indictment, which first brings the person to the court, is quashed under the Mental Health Act. When the custody order takes effect, the indictment is quashed. Mr J.R. Quigley : But if his health improves, he can re-present. Mr C.C. PORTER : The member for Mindarie should just listen for a moment and then make his submissions afterwards. Several members interjected. The SPEAKER : Thank you, members! Mr C.C. PORTER : At that point, under the provisions of the act, the person is held in custody pursuant to the custody order, and whether there is an indictment or not is irrelevant to the legal basis for the person being held in custody. In fact, the act provides for the fact that if there is a custody order, the indictment must be quashed. The member for Mindarie raises a good point. I do not think the strength of the point is in the concept that there must be an indictment on foot, or even the prospect of one, for the detention to be lawful. He raises a good point. But something to be considered here by me, when a recommendation one way or the other is made, is, given that there is some indication that an argument could be put by the DPP that the person is now, after years, fit to stand trial, the DPP has determined that that will not happen even if the evidence exists. The point of distinction, member for Mindarie, is that my understanding—I am very happy to go to the State Solicitor’s Office and seek formal advice on this—is that the existence or otherwise of an indictment, or even the contemplation of the existence of indictment, does not make unlawful the continuing detention under the custody order. Mr J.R. Quigley : Unjust, nonetheless. Mr C.C. PORTER : The point here is whether the best thing in balancing the right of the community to be protected from people alleged to have undertaken serious offences and not fit to stand trial and the right of this person to be free in circumstances in which it has not been proved against him that he committed those offences is presently being properly achieved. I would say that, at the moment, it is a very, very fine balance in these circumstances. The point the member for Mindarie raises is kind of technically legally interesting but wrong. The real point here is whether the continuing detention is in the best interests of this person and the state, given very finely balanced considerations. I have my doubts, but I must await the recommendations in the report from the Mentally Impaired Accused Review Board before I make a decision that then will go to the Governor, and that is what I will do. Mr P. Papalia : All she considers is what security the original sentence — Mr C.C. PORTER : She is who? Mr P. Papalia : The chair. When she assesses it, she gives undue weight to the original charge. She does not consider any of his behaviour since then. You know that’s the case. Mr C.C. PORTER : That is totally incorrect. If the member for Warnbro had ever read one of these reports, which he probably has not had an opportunity to do, he would see that, in making that determination about whether someone should be released either on conditions or at large, the board takes into account the original nature and seriousness of the offences, the strength of the case that was originally against the person, the continuing risk the person might pose to the community, the safety of the community, the ability to be properly supervised according to conditions, and a range of other factors. The system is not perfect, but it is a very good system. That brings me to the point put by a number of people in serious submissions to me that one of the central features of debate about this system is whether the executive wing of government—that is, the Attorney General of the day—should have the last say in these matters. A serious submission has been put out there that the Mentally Impaired Accused Review Board, or a body like it, stocked full of professionals as it is—psychiatrists and judicial officers—should have the final say in the release back into the community of a person who has been declared unfit to stand trial, and the executive government should not be involved at all. I do not think it is a very wise submission precisely for reasons such as this. I reserve the residual power when a recommendation is made for continuing detention to not observe that recommendation and make a different recommendation to the Governor or, indeed, if a recommendation comes up for conditional release or release at large, to refuse to make the on-recommendation to the Governor. I think the people of Western Australia are better served by having elected members in the executive in charge of that decision. Mr P. Papalia : I agree. Mr C.C. PORTER : The point is interesting, but I do not think critical to the decision at hand, which is: what do we do now when the report comes back from the Mentally Impaired Accused Review Board?
I thank the member for his question, which raises an interesting, if somewhat discrete, point of law; that is, when an unfitness to stand trial determination is made by a court, it is generally made at a time, obviously, when charges are laid and the person is before the court pursuant to those charges. In those circumstances, the court receives, on an application from the accused person’s counsel, submissions that the accused person is unfit to stand trial due to some or other mental infirmity. That is to be shown by the accused person on balance of probabilities, and the court accepts that or it rejects it. If it rejects that submission, the person stands trial. If the court accepts the submission that the person is unfit to stand trial, the person does not stand trail. In those circumstances, as I noted earlier, the framework of the act provides, with less serious offences, that the accused may actually be released and the charges dismissed. For more serious offences, it provides for the making of a custody order, which is what happened with Mr Noble. In making that custody order, as I noted, the court must take into account a range of matters, including, and very importantly, the strength of the evidence against the person. As a matter of legal procedure in the circumstances in which there is such a custody order, the indictment, which first brings the person to the court, is quashed under the Mental Health Act. When the custody order takes effect, the indictment is quashed. Mr J.R. Quigley : But if his health improves, he can re-present. Mr C.C. PORTER : The member for Mindarie should just listen for a moment and then make his submissions afterwards. Several members interjected. The SPEAKER : Thank you, members! Mr C.C. PORTER : At that point, under the provisions of the act, the person is held in custody pursuant to the custody order, and whether there is an indictment or not is irrelevant to the legal basis for the person being held in custody. In fact, the act provides for the fact that if there is a custody order, the indictment must be quashed. The member for Mindarie raises a good point. I do not think the strength of the point is in the concept that there must be an indictment on foot, or even the prospect of one, for the detention to be lawful. He raises a good point. But something to be considered here by me, when a recommendation one way or the other is made, is, given that there is some indication that an argument could be put by the DPP that the person is now, after years, fit to stand trial, the DPP has determined that that will not happen even if the evidence exists. The point of distinction, member for Mindarie, is that my understanding—I am very happy to go to the State Solicitor’s Office and seek formal advice on this—is that the existence or otherwise of an indictment, or even the contemplation of the existence of indictment, does not make unlawful the continuing detention under the custody order. Mr J.R. Quigley : Unjust, nonetheless. Mr C.C. PORTER : The point here is whether the best thing in balancing the right of the community to be protected from people alleged to have undertaken serious offences and not fit to stand trial and the right of this person to be free in circumstances in which it has not been proved against him that he committed those offences is presently being properly achieved. I would say that, at the moment, it is a very, very fine balance in these circumstances. The point the member for Mindarie raises is kind of technically legally interesting but wrong. The real point here is whether the continuing detention is in the best interests of this person and the state, given very finely balanced considerations. I have my doubts, but I must await the recommendations in the report from the Mentally Impaired Accused Review Board before I make a decision that then will go to the Governor, and that is what I will do. Mr P. Papalia : All she considers is what security the original sentence — Mr C.C. PORTER : She is who? Mr P. Papalia : The chair. When she assesses it, she gives undue weight to the original charge. She does not consider any of his behaviour since then. You know that’s the case. Mr C.C. PORTER : That is totally incorrect. If the member for Warnbro had ever read one of these reports, which he probably has not had an opportunity to do, he would see that, in making that determination about whether someone should be released either on conditions or at large, the board takes into account the original nature and seriousness of the offences, the strength of the case that was originally against the person, the continuing risk the person might pose to the community, the safety of the community, the ability to be properly supervised according to conditions, and a range of other factors. The system is not perfect, but it is a very good system. That brings me to the point put by a number of people in serious submissions to me that one of the central features of debate about this system is whether the executive wing of government—that is, the Attorney General of the day—should have the last say in these matters. A serious submission has been put out there that the Mentally Impaired Accused Review Board, or a body like it, stocked full of professionals as it is—psychiatrists and judicial officers—should have the final say in the release back into the community of a person who has been declared unfit to stand trial, and the executive government should not be involved at all. I do not think it is a very wise submission precisely for reasons such as this. I reserve the residual power when a recommendation is made for continuing detention to not observe that recommendation and make a different recommendation to the Governor or, indeed, if a recommendation comes up for conditional release or release at large, to refuse to make the on-recommendation to the Governor. I think the people of Western Australia are better served by having elected members in the executive in charge of that decision. Mr P. Papalia : I agree. Mr C.C. PORTER : The point is interesting, but I do not think critical to the decision at hand, which is: what do we do now when the report comes back from the Mentally Impaired Accused Review Board?
Mr J.R. Quigley : But if his health improves, he can re-present. Mr C.C. PORTER : The member for Mindarie should just listen for a moment and then make his submissions afterwards. Several members interjected. The SPEAKER : Thank you, members! Mr C.C. PORTER : At that point, under the provisions of the act, the person is held in custody pursuant to the custody order, and whether there is an indictment or not is irrelevant to the legal basis for the person being held in custody. In fact, the act provides for the fact that if there is a custody order, the indictment must be quashed. The member for Mindarie raises a good point. I do not think the strength of the point is in the concept that there must be an indictment on foot, or even the prospect of one, for the detention to be lawful. He raises a good point. But something to be considered here by me, when a recommendation one way or the other is made, is, given that there is some indication that an argument could be put by the DPP that the person is now, after years, fit to stand trial, the DPP has determined that that will not happen even if the evidence exists. The point of distinction, member for Mindarie, is that my understanding—I am very happy to go to the State Solicitor’s Office and seek formal advice on this—is that the existence or otherwise of an indictment, or even the contemplation of the existence of indictment, does not make unlawful the continuing detention under the custody order. Mr J.R. Quigley : Unjust, nonetheless. Mr C.C. PORTER : The point here is whether the best thing in balancing the right of the community to be protected from people alleged to have undertaken serious offences and not fit to stand trial and the right of this person to be free in circumstances in which it has not been proved against him that he committed those offences is presently being properly achieved. I would say that, at the moment, it is a very, very fine balance in these circumstances. The point the member for Mindarie raises is kind of technically legally interesting but wrong. The real point here is whether the continuing detention is in the best interests of this person and the state, given very finely balanced considerations. I have my doubts, but I must await the recommendations in the report from the Mentally Impaired Accused Review Board before I make a decision that then will go to the Governor, and that is what I will do. Mr P. Papalia : All she considers is what security the original sentence — Mr C.C. PORTER : She is who? Mr P. Papalia : The chair. When she assesses it, she gives undue weight to the original charge. She does not consider any of his behaviour since then. You know that’s the case. Mr C.C. PORTER : That is totally incorrect. If the member for Warnbro had ever read one of these reports, which he probably has not had an opportunity to do, he would see that, in making that determination about whether someone should be released either on conditions or at large, the board takes into account the original nature and seriousness of the offences, the strength of the case that was originally against the person, the continuing risk the person might pose to the community, the safety of the community, the ability to be properly supervised according to conditions, and a range of other factors. The system is not perfect, but it is a very good system. That brings me to the point put by a number of people in serious submissions to me that one of the central features of debate about this system is whether the executive wing of government—that is, the Attorney General of the day—should have the last say in these matters. A serious submission has been put out there that the Mentally Impaired Accused Review Board, or a body like it, stocked full of professionals as it is—psychiatrists and judicial officers—should have the final say in the release back into the community of a person who has been declared unfit to stand trial, and the executive government should not be involved at all. I do not think it is a very wise submission precisely for reasons such as this. I reserve the residual power when a recommendation is made for continuing detention to not observe that recommendation and make a different recommendation to the Governor or, indeed, if a recommendation comes up for conditional release or release at large, to refuse to make the on-recommendation to the Governor. I think the people of Western Australia are better served by having elected members in the executive in charge of that decision. Mr P. Papalia : I agree. Mr C.C. PORTER : The point is interesting, but I do not think critical to the decision at hand, which is: what do we do now when the report comes back from the Mentally Impaired Accused Review Board?
Mr C.C. PORTER : The member for Mindarie should just listen for a moment and then make his submissions afterwards. Several members interjected. The SPEAKER : Thank you, members! Mr C.C. PORTER : At that point, under the provisions of the act, the person is held in custody pursuant to the custody order, and whether there is an indictment or not is irrelevant to the legal basis for the person being held in custody. In fact, the act provides for the fact that if there is a custody order, the indictment must be quashed. The member for Mindarie raises a good point. I do not think the strength of the point is in the concept that there must be an indictment on foot, or even the prospect of one, for the detention to be lawful. He raises a good point. But something to be considered here by me, when a recommendation one way or the other is made, is, given that there is some indication that an argument could be put by the DPP that the person is now, after years, fit to stand trial, the DPP has determined that that will not happen even if the evidence exists. The point of distinction, member for Mindarie, is that my understanding—I am very happy to go to the State Solicitor’s Office and seek formal advice on this—is that the existence or otherwise of an indictment, or even the contemplation of the existence of indictment, does not make unlawful the continuing detention under the custody order. Mr J.R. Quigley : Unjust, nonetheless. Mr C.C. PORTER : The point here is whether the best thing in balancing the right of the community to be protected from people alleged to have undertaken serious offences and not fit to stand trial and the right of this person to be free in circumstances in which it has not been proved against him that he committed those offences is presently being properly achieved. I would say that, at the moment, it is a very, very fine balance in these circumstances. The point the member for Mindarie raises is kind of technically legally interesting but wrong. The real point here is whether the continuing detention is in the best interests of this person and the state, given very finely balanced considerations. I have my doubts, but I must await the recommendations in the report from the Mentally Impaired Accused Review Board before I make a decision that then will go to the Governor, and that is what I will do. Mr P. Papalia : All she considers is what security the original sentence — Mr C.C. PORTER : She is who? Mr P. Papalia : The chair. When she assesses it, she gives undue weight to the original charge. She does not consider any of his behaviour since then. You know that’s the case. Mr C.C. PORTER : That is totally incorrect. If the member for Warnbro had ever read one of these reports, which he probably has not had an opportunity to do, he would see that, in making that determination about whether someone should be released either on conditions or at large, the board takes into account the original nature and seriousness of the offences, the strength of the case that was originally against the person, the continuing risk the person might pose to the community, the safety of the community, the ability to be properly supervised according to conditions, and a range of other factors. The system is not perfect, but it is a very good system. That brings me to the point put by a number of people in serious submissions to me that one of the central features of debate about this system is whether the executive wing of government—that is, the Attorney General of the day—should have the last say in these matters. A serious submission has been put out there that the Mentally Impaired Accused Review Board, or a body like it, stocked full of professionals as it is—psychiatrists and judicial officers—should have the final say in the release back into the community of a person who has been declared unfit to stand trial, and the executive government should not be involved at all. I do not think it is a very wise submission precisely for reasons such as this. I reserve the residual power when a recommendation is made for continuing detention to not observe that recommendation and make a different recommendation to the Governor or, indeed, if a recommendation comes up for conditional release or release at large, to refuse to make the on-recommendation to the Governor. I think the people of Western Australia are better served by having elected members in the executive in charge of that decision. Mr P. Papalia : I agree. Mr C.C. PORTER : The point is interesting, but I do not think critical to the decision at hand, which is: what do we do now when the report comes back from the Mentally Impaired Accused Review Board?
Several members interjected. The SPEAKER : Thank you, members! Mr C.C. PORTER : At that point, under the provisions of the act, the person is held in custody pursuant to the custody order, and whether there is an indictment or not is irrelevant to the legal basis for the person being held in custody. In fact, the act provides for the fact that if there is a custody order, the indictment must be quashed. The member for Mindarie raises a good point. I do not think the strength of the point is in the concept that there must be an indictment on foot, or even the prospect of one, for the detention to be lawful. He raises a good point. But something to be considered here by me, when a recommendation one way or the other is made, is, given that there is some indication that an argument could be put by the DPP that the person is now, after years, fit to stand trial, the DPP has determined that that will not happen even if the evidence exists. The point of distinction, member for Mindarie, is that my understanding—I am very happy to go to the State Solicitor’s Office and seek formal advice on this—is that the existence or otherwise of an indictment, or even the contemplation of the existence of indictment, does not make unlawful the continuing detention under the custody order. Mr J.R. Quigley : Unjust, nonetheless. Mr C.C. PORTER : The point here is whether the best thing in balancing the right of the community to be protected from people alleged to have undertaken serious offences and not fit to stand trial and the right of this person to be free in circumstances in which it has not been proved against him that he committed those offences is presently being properly achieved. I would say that, at the moment, it is a very, very fine balance in these circumstances. The point the member for Mindarie raises is kind of technically legally interesting but wrong. The real point here is whether the continuing detention is in the best interests of this person and the state, given very finely balanced considerations. I have my doubts, but I must await the recommendations in the report from the Mentally Impaired Accused Review Board before I make a decision that then will go to the Governor, and that is what I will do. Mr P. Papalia : All she considers is what security the original sentence — Mr C.C. PORTER : She is who? Mr P. Papalia : The chair. When she assesses it, she gives undue weight to the original charge. She does not consider any of his behaviour since then. You know that’s the case. Mr C.C. PORTER : That is totally incorrect. If the member for Warnbro had ever read one of these reports, which he probably has not had an opportunity to do, he would see that, in making that determination about whether someone should be released either on conditions or at large, the board takes into account the original nature and seriousness of the offences, the strength of the case that was originally against the person, the continuing risk the person might pose to the community, the safety of the community, the ability to be properly supervised according to conditions, and a range of other factors. The system is not perfect, but it is a very good system. That brings me to the point put by a number of people in serious submissions to me that one of the central features of debate about this system is whether the executive wing of government—that is, the Attorney General of the day—should have the last say in these matters. A serious submission has been put out there that the Mentally Impaired Accused Review Board, or a body like it, stocked full of professionals as it is—psychiatrists and judicial officers—should have the final say in the release back into the community of a person who has been declared unfit to stand trial, and the executive government should not be involved at all. I do not think it is a very wise submission precisely for reasons such as this. I reserve the residual power when a recommendation is made for continuing detention to not observe that recommendation and make a different recommendation to the Governor or, indeed, if a recommendation comes up for conditional release or release at large, to refuse to make the on-recommendation to the Governor. I think the people of Western Australia are better served by having elected members in the executive in charge of that decision. Mr P. Papalia : I agree. Mr C.C. PORTER : The point is interesting, but I do not think critical to the decision at hand, which is: what do we do now when the report comes back from the Mentally Impaired Accused Review Board?
The SPEAKER : Thank you, members! Mr C.C. PORTER : At that point, under the provisions of the act, the person is held in custody pursuant to the custody order, and whether there is an indictment or not is irrelevant to the legal basis for the person being held in custody. In fact, the act provides for the fact that if there is a custody order, the indictment must be quashed. The member for Mindarie raises a good point. I do not think the strength of the point is in the concept that there must be an indictment on foot, or even the prospect of one, for the detention to be lawful. He raises a good point. But something to be considered here by me, when a recommendation one way or the other is made, is, given that there is some indication that an argument could be put by the DPP that the person is now, after years, fit to stand trial, the DPP has determined that that will not happen even if the evidence exists. The point of distinction, member for Mindarie, is that my understanding—I am very happy to go to the State Solicitor’s Office and seek formal advice on this—is that the existence or otherwise of an indictment, or even the contemplation of the existence of indictment, does not make unlawful the continuing detention under the custody order. Mr J.R. Quigley : Unjust, nonetheless. Mr C.C. PORTER : The point here is whether the best thing in balancing the right of the community to be protected from people alleged to have undertaken serious offences and not fit to stand trial and the right of this person to be free in circumstances in which it has not been proved against him that he committed those offences is presently being properly achieved. I would say that, at the moment, it is a very, very fine balance in these circumstances. The point the member for Mindarie raises is kind of technically legally interesting but wrong. The real point here is whether the continuing detention is in the best interests of this person and the state, given very finely balanced considerations. I have my doubts, but I must await the recommendations in the report from the Mentally Impaired Accused Review Board before I make a decision that then will go to the Governor, and that is what I will do. Mr P. Papalia : All she considers is what security the original sentence — Mr C.C. PORTER : She is who? Mr P. Papalia : The chair. When she assesses it, she gives undue weight to the original charge. She does not consider any of his behaviour since then. You know that’s the case. Mr C.C. PORTER : That is totally incorrect. If the member for Warnbro had ever read one of these reports, which he probably has not had an opportunity to do, he would see that, in making that determination about whether someone should be released either on conditions or at large, the board takes into account the original nature and seriousness of the offences, the strength of the case that was originally against the person, the continuing risk the person might pose to the community, the safety of the community, the ability to be properly supervised according to conditions, and a range of other factors. The system is not perfect, but it is a very good system. That brings me to the point put by a number of people in serious submissions to me that one of the central features of debate about this system is whether the executive wing of government—that is, the Attorney General of the day—should have the last say in these matters. A serious submission has been put out there that the Mentally Impaired Accused Review Board, or a body like it, stocked full of professionals as it is—psychiatrists and judicial officers—should have the final say in the release back into the community of a person who has been declared unfit to stand trial, and the executive government should not be involved at all. I do not think it is a very wise submission precisely for reasons such as this. I reserve the residual power when a recommendation is made for continuing detention to not observe that recommendation and make a different recommendation to the Governor or, indeed, if a recommendation comes up for conditional release or release at large, to refuse to make the on-recommendation to the Governor. I think the people of Western Australia are better served by having elected members in the executive in charge of that decision. Mr P. Papalia : I agree. Mr C.C. PORTER : The point is interesting, but I do not think critical to the decision at hand, which is: what do we do now when the report comes back from the Mentally Impaired Accused Review Board?
Mr C.C. PORTER : At that point, under the provisions of the act, the person is held in custody pursuant to the custody order, and whether there is an indictment or not is irrelevant to the legal basis for the person being held in custody. In fact, the act provides for the fact that if there is a custody order, the indictment must be quashed. The member for Mindarie raises a good point. I do not think the strength of the point is in the concept that there must be an indictment on foot, or even the prospect of one, for the detention to be lawful. He raises a good point. But something to be considered here by me, when a recommendation one way or the other is made, is, given that there is some indication that an argument could be put by the DPP that the person is now, after years, fit to stand trial, the DPP has determined that that will not happen even if the evidence exists. The point of distinction, member for Mindarie, is that my understanding—I am very happy to go to the State Solicitor’s Office and seek formal advice on this—is that the existence or otherwise of an indictment, or even the contemplation of the existence of indictment, does not make unlawful the continuing detention under the custody order. Mr J.R. Quigley : Unjust, nonetheless. Mr C.C. PORTER : The point here is whether the best thing in balancing the right of the community to be protected from people alleged to have undertaken serious offences and not fit to stand trial and the right of this person to be free in circumstances in which it has not been proved against him that he committed those offences is presently being properly achieved. I would say that, at the moment, it is a very, very fine balance in these circumstances. The point the member for Mindarie raises is kind of technically legally interesting but wrong. The real point here is whether the continuing detention is in the best interests of this person and the state, given very finely balanced considerations. I have my doubts, but I must await the recommendations in the report from the Mentally Impaired Accused Review Board before I make a decision that then will go to the Governor, and that is what I will do. Mr P. Papalia : All she considers is what security the original sentence — Mr C.C. PORTER : She is who? Mr P. Papalia : The chair. When she assesses it, she gives undue weight to the original charge. She does not consider any of his behaviour since then. You know that’s the case. Mr C.C. PORTER : That is totally incorrect. If the member for Warnbro had ever read one of these reports, which he probably has not had an opportunity to do, he would see that, in making that determination about whether someone should be released either on conditions or at large, the board takes into account the original nature and seriousness of the offences, the strength of the case that was originally against the person, the continuing risk the person might pose to the community, the safety of the community, the ability to be properly supervised according to conditions, and a range of other factors. The system is not perfect, but it is a very good system. That brings me to the point put by a number of people in serious submissions to me that one of the central features of debate about this system is whether the executive wing of government—that is, the Attorney General of the day—should have the last say in these matters. A serious submission has been put out there that the Mentally Impaired Accused Review Board, or a body like it, stocked full of professionals as it is—psychiatrists and judicial officers—should have the final say in the release back into the community of a person who has been declared unfit to stand trial, and the executive government should not be involved at all. I do not think it is a very wise submission precisely for reasons such as this. I reserve the residual power when a recommendation is made for continuing detention to not observe that recommendation and make a different recommendation to the Governor or, indeed, if a recommendation comes up for conditional release or release at large, to refuse to make the on-recommendation to the Governor. I think the people of Western Australia are better served by having elected members in the executive in charge of that decision. Mr P. Papalia : I agree. Mr C.C. PORTER : The point is interesting, but I do not think critical to the decision at hand, which is: what do we do now when the report comes back from the Mentally Impaired Accused Review Board?
The member for Mindarie raises a good point. I do not think the strength of the point is in the concept that there must be an indictment on foot, or even the prospect of one, for the detention to be lawful. He raises a good point. But something to be considered here by me, when a recommendation one way or the other is made, is, given that there is some indication that an argument could be put by the DPP that the person is now, after years, fit to stand trial, the DPP has determined that that will not happen even if the evidence exists. The point of distinction, member for Mindarie, is that my understanding—I am very happy to go to the State Solicitor’s Office and seek formal advice on this—is that the existence or otherwise of an indictment, or even the contemplation of the existence of indictment, does not make unlawful the continuing detention under the custody order. Mr J.R. Quigley : Unjust, nonetheless. Mr C.C. PORTER : The point here is whether the best thing in balancing the right of the community to be protected from people alleged to have undertaken serious offences and not fit to stand trial and the right of this person to be free in circumstances in which it has not been proved against him that he committed those offences is presently being properly achieved. I would say that, at the moment, it is a very, very fine balance in these circumstances. The point the member for Mindarie raises is kind of technically legally interesting but wrong. The real point here is whether the continuing detention is in the best interests of this person and the state, given very finely balanced considerations. I have my doubts, but I must await the recommendations in the report from the Mentally Impaired Accused Review Board before I make a decision that then will go to the Governor, and that is what I will do. Mr P. Papalia : All she considers is what security the original sentence — Mr C.C. PORTER : She is who? Mr P. Papalia : The chair. When she assesses it, she gives undue weight to the original charge. She does not consider any of his behaviour since then. You know that’s the case. Mr C.C. PORTER : That is totally incorrect. If the member for Warnbro had ever read one of these reports, which he probably has not had an opportunity to do, he would see that, in making that determination about whether someone should be released either on conditions or at large, the board takes into account the original nature and seriousness of the offences, the strength of the case that was originally against the person, the continuing risk the person might pose to the community, the safety of the community, the ability to be properly supervised according to conditions, and a range of other factors. The system is not perfect, but it is a very good system. That brings me to the point put by a number of people in serious submissions to me that one of the central features of debate about this system is whether the executive wing of government—that is, the Attorney General of the day—should have the last say in these matters. A serious submission has been put out there that the Mentally Impaired Accused Review Board, or a body like it, stocked full of professionals as it is—psychiatrists and judicial officers—should have the final say in the release back into the community of a person who has been declared unfit to stand trial, and the executive government should not be involved at all. I do not think it is a very wise submission precisely for reasons such as this. I reserve the residual power when a recommendation is made for continuing detention to not observe that recommendation and make a different recommendation to the Governor or, indeed, if a recommendation comes up for conditional release or release at large, to refuse to make the on-recommendation to the Governor. I think the people of Western Australia are better served by having elected members in the executive in charge of that decision. Mr P. Papalia : I agree. Mr C.C. PORTER : The point is interesting, but I do not think critical to the decision at hand, which is: what do we do now when the report comes back from the Mentally Impaired Accused Review Board?
Mr J.R. Quigley : Unjust, nonetheless. Mr C.C. PORTER : The point here is whether the best thing in balancing the right of the community to be protected from people alleged to have undertaken serious offences and not fit to stand trial and the right of this person to be free in circumstances in which it has not been proved against him that he committed those offences is presently being properly achieved. I would say that, at the moment, it is a very, very fine balance in these circumstances. The point the member for Mindarie raises is kind of technically legally interesting but wrong. The real point here is whether the continuing detention is in the best interests of this person and the state, given very finely balanced considerations. I have my doubts, but I must await the recommendations in the report from the Mentally Impaired Accused Review Board before I make a decision that then will go to the Governor, and that is what I will do. Mr P. Papalia : All she considers is what security the original sentence — Mr C.C. PORTER : She is who? Mr P. Papalia : The chair. When she assesses it, she gives undue weight to the original charge. She does not consider any of his behaviour since then. You know that’s the case. Mr C.C. PORTER : That is totally incorrect. If the member for Warnbro had ever read one of these reports, which he probably has not had an opportunity to do, he would see that, in making that determination about whether someone should be released either on conditions or at large, the board takes into account the original nature and seriousness of the offences, the strength of the case that was originally against the person, the continuing risk the person might pose to the community, the safety of the community, the ability to be properly supervised according to conditions, and a range of other factors. The system is not perfect, but it is a very good system. That brings me to the point put by a number of people in serious submissions to me that one of the central features of debate about this system is whether the executive wing of government—that is, the Attorney General of the day—should have the last say in these matters. A serious submission has been put out there that the Mentally Impaired Accused Review Board, or a body like it, stocked full of professionals as it is—psychiatrists and judicial officers—should have the final say in the release back into the community of a person who has been declared unfit to stand trial, and the executive government should not be involved at all. I do not think it is a very wise submission precisely for reasons such as this. I reserve the residual power when a recommendation is made for continuing detention to not observe that recommendation and make a different recommendation to the Governor or, indeed, if a recommendation comes up for conditional release or release at large, to refuse to make the on-recommendation to the Governor. I think the people of Western Australia are better served by having elected members in the executive in charge of that decision. Mr P. Papalia : I agree. Mr C.C. PORTER : The point is interesting, but I do not think critical to the decision at hand, which is: what do we do now when the report comes back from the Mentally Impaired Accused Review Board?
Mr C.C. PORTER : The point here is whether the best thing in balancing the right of the community to be protected from people alleged to have undertaken serious offences and not fit to stand trial and the right of this person to be free in circumstances in which it has not been proved against him that he committed those offences is presently being properly achieved. I would say that, at the moment, it is a very, very fine balance in these circumstances. The point the member for Mindarie raises is kind of technically legally interesting but wrong. The real point here is whether the continuing detention is in the best interests of this person and the state, given very finely balanced considerations. I have my doubts, but I must await the recommendations in the report from the Mentally Impaired Accused Review Board before I make a decision that then will go to the Governor, and that is what I will do. Mr P. Papalia : All she considers is what security the original sentence — Mr C.C. PORTER : She is who? Mr P. Papalia : The chair. When she assesses it, she gives undue weight to the original charge. She does not consider any of his behaviour since then. You know that’s the case. Mr C.C. PORTER : That is totally incorrect. If the member for Warnbro had ever read one of these reports, which he probably has not had an opportunity to do, he would see that, in making that determination about whether someone should be released either on conditions or at large, the board takes into account the original nature and seriousness of the offences, the strength of the case that was originally against the person, the continuing risk the person might pose to the community, the safety of the community, the ability to be properly supervised according to conditions, and a range of other factors. The system is not perfect, but it is a very good system. That brings me to the point put by a number of people in serious submissions to me that one of the central features of debate about this system is whether the executive wing of government—that is, the Attorney General of the day—should have the last say in these matters. A serious submission has been put out there that the Mentally Impaired Accused Review Board, or a body like it, stocked full of professionals as it is—psychiatrists and judicial officers—should have the final say in the release back into the community of a person who has been declared unfit to stand trial, and the executive government should not be involved at all. I do not think it is a very wise submission precisely for reasons such as this. I reserve the residual power when a recommendation is made for continuing detention to not observe that recommendation and make a different recommendation to the Governor or, indeed, if a recommendation comes up for conditional release or release at large, to refuse to make the on-recommendation to the Governor. I think the people of Western Australia are better served by having elected members in the executive in charge of that decision. Mr P. Papalia : I agree. Mr C.C. PORTER : The point is interesting, but I do not think critical to the decision at hand, which is: what do we do now when the report comes back from the Mentally Impaired Accused Review Board?
Mr P. Papalia : All she considers is what security the original sentence — Mr C.C. PORTER : She is who? Mr P. Papalia : The chair. When she assesses it, she gives undue weight to the original charge. She does not consider any of his behaviour since then. You know that’s the case. Mr C.C. PORTER : That is totally incorrect. If the member for Warnbro had ever read one of these reports, which he probably has not had an opportunity to do, he would see that, in making that determination about whether someone should be released either on conditions or at large, the board takes into account the original nature and seriousness of the offences, the strength of the case that was originally against the person, the continuing risk the person might pose to the community, the safety of the community, the ability to be properly supervised according to conditions, and a range of other factors. The system is not perfect, but it is a very good system. That brings me to the point put by a number of people in serious submissions to me that one of the central features of debate about this system is whether the executive wing of government—that is, the Attorney General of the day—should have the last say in these matters. A serious submission has been put out there that the Mentally Impaired Accused Review Board, or a body like it, stocked full of professionals as it is—psychiatrists and judicial officers—should have the final say in the release back into the community of a person who has been declared unfit to stand trial, and the executive government should not be involved at all. I do not think it is a very wise submission precisely for reasons such as this. I reserve the residual power when a recommendation is made for continuing detention to not observe that recommendation and make a different recommendation to the Governor or, indeed, if a recommendation comes up for conditional release or release at large, to refuse to make the on-recommendation to the Governor. I think the people of Western Australia are better served by having elected members in the executive in charge of that decision. Mr P. Papalia : I agree. Mr C.C. PORTER : The point is interesting, but I do not think critical to the decision at hand, which is: what do we do now when the report comes back from the Mentally Impaired Accused Review Board?
Mr C.C. PORTER : She is who? Mr P. Papalia : The chair. When she assesses it, she gives undue weight to the original charge. She does not consider any of his behaviour since then. You know that’s the case. Mr C.C. PORTER : That is totally incorrect. If the member for Warnbro had ever read one of these reports, which he probably has not had an opportunity to do, he would see that, in making that determination about whether someone should be released either on conditions or at large, the board takes into account the original nature and seriousness of the offences, the strength of the case that was originally against the person, the continuing risk the person might pose to the community, the safety of the community, the ability to be properly supervised according to conditions, and a range of other factors. The system is not perfect, but it is a very good system. That brings me to the point put by a number of people in serious submissions to me that one of the central features of debate about this system is whether the executive wing of government—that is, the Attorney General of the day—should have the last say in these matters. A serious submission has been put out there that the Mentally Impaired Accused Review Board, or a body like it, stocked full of professionals as it is—psychiatrists and judicial officers—should have the final say in the release back into the community of a person who has been declared unfit to stand trial, and the executive government should not be involved at all. I do not think it is a very wise submission precisely for reasons such as this. I reserve the residual power when a recommendation is made for continuing detention to not observe that recommendation and make a different recommendation to the Governor or, indeed, if a recommendation comes up for conditional release or release at large, to refuse to make the on-recommendation to the Governor. I think the people of Western Australia are better served by having elected members in the executive in charge of that decision. Mr P. Papalia : I agree. Mr C.C. PORTER : The point is interesting, but I do not think critical to the decision at hand, which is: what do we do now when the report comes back from the Mentally Impaired Accused Review Board?
Mr P. Papalia : The chair. When she assesses it, she gives undue weight to the original charge. She does not consider any of his behaviour since then. You know that’s the case. Mr C.C. PORTER : That is totally incorrect. If the member for Warnbro had ever read one of these reports, which he probably has not had an opportunity to do, he would see that, in making that determination about whether someone should be released either on conditions or at large, the board takes into account the original nature and seriousness of the offences, the strength of the case that was originally against the person, the continuing risk the person might pose to the community, the safety of the community, the ability to be properly supervised according to conditions, and a range of other factors. The system is not perfect, but it is a very good system. That brings me to the point put by a number of people in serious submissions to me that one of the central features of debate about this system is whether the executive wing of government—that is, the Attorney General of the day—should have the last say in these matters. A serious submission has been put out there that the Mentally Impaired Accused Review Board, or a body like it, stocked full of professionals as it is—psychiatrists and judicial officers—should have the final say in the release back into the community of a person who has been declared unfit to stand trial, and the executive government should not be involved at all. I do not think it is a very wise submission precisely for reasons such as this. I reserve the residual power when a recommendation is made for continuing detention to not observe that recommendation and make a different recommendation to the Governor or, indeed, if a recommendation comes up for conditional release or release at large, to refuse to make the on-recommendation to the Governor. I think the people of Western Australia are better served by having elected members in the executive in charge of that decision. Mr P. Papalia : I agree. Mr C.C. PORTER : The point is interesting, but I do not think critical to the decision at hand, which is: what do we do now when the report comes back from the Mentally Impaired Accused Review Board?
Mr C.C. PORTER : That is totally incorrect. If the member for Warnbro had ever read one of these reports, which he probably has not had an opportunity to do, he would see that, in making that determination about whether someone should be released either on conditions or at large, the board takes into account the original nature and seriousness of the offences, the strength of the case that was originally against the person, the continuing risk the person might pose to the community, the safety of the community, the ability to be properly supervised according to conditions, and a range of other factors. The system is not perfect, but it is a very good system. That brings me to the point put by a number of people in serious submissions to me that one of the central features of debate about this system is whether the executive wing of government—that is, the Attorney General of the day—should have the last say in these matters. A serious submission has been put out there that the Mentally Impaired Accused Review Board, or a body like it, stocked full of professionals as it is—psychiatrists and judicial officers—should have the final say in the release back into the community of a person who has been declared unfit to stand trial, and the executive government should not be involved at all. I do not think it is a very wise submission precisely for reasons such as this. I reserve the residual power when a recommendation is made for continuing detention to not observe that recommendation and make a different recommendation to the Governor or, indeed, if a recommendation comes up for conditional release or release at large, to refuse to make the on-recommendation to the Governor. I think the people of Western Australia are better served by having elected members in the executive in charge of that decision. Mr P. Papalia : I agree. Mr C.C. PORTER : The point is interesting, but I do not think critical to the decision at hand, which is: what do we do now when the report comes back from the Mentally Impaired Accused Review Board?
That brings me to the point put by a number of people in serious submissions to me that one of the central features of debate about this system is whether the executive wing of government—that is, the Attorney General of the day—should have the last say in these matters. A serious submission has been put out there that the Mentally Impaired Accused Review Board, or a body like it, stocked full of professionals as it is—psychiatrists and judicial officers—should have the final say in the release back into the community of a person who has been declared unfit to stand trial, and the executive government should not be involved at all. I do not think it is a very wise submission precisely for reasons such as this. I reserve the residual power when a recommendation is made for continuing detention to not observe that recommendation and make a different recommendation to the Governor or, indeed, if a recommendation comes up for conditional release or release at large, to refuse to make the on-recommendation to the Governor. I think the people of Western Australia are better served by having elected members in the executive in charge of that decision. Mr P. Papalia : I agree. Mr C.C. PORTER : The point is interesting, but I do not think critical to the decision at hand, which is: what do we do now when the report comes back from the Mentally Impaired Accused Review Board?
Mr P. Papalia : I agree. Mr C.C. PORTER : The point is interesting, but I do not think critical to the decision at hand, which is: what do we do now when the report comes back from the Mentally Impaired Accused Review Board?
Mr C.C. PORTER : The point is interesting, but I do not think critical to the decision at hand, which is: what do we do now when the report comes back from the Mentally Impaired Accused Review Board?
(1) On 26 August 2010, the state of Western Australia indicated that it had no intention of proceeding with any charge against Mr Noble for any offence. On what basis does the state of Western Australia persist with his incarceration given that he is not an accused person? (2) Why did the Attorney General allow Mr Noble’s unlawful incarceration to continue since the time the Director of Public Prosecutions indicated that there was no intention to proceed with a prosecution against Mr Noble? (3) How many other people who do not face any charges and whom the DPP does not intend to charge are being held under the Criminal Law (Mentally Impaired Accused) Act? Mr C.C. PORTER replied: I thank the member for his question, which raises an interesting, if somewhat discrete, point of law; that is, when an unfitness to stand trial determination is made by a court, it is generally made at a time, obviously, when charges are laid and the person is before the court pursuant to those charges. In those circumstances, the court receives, on an application from the accused person’s counsel, submissions that the accused person is unfit to stand trial due to some or other mental infirmity. That is to be shown by the accused person on balance of probabilities, and the court accepts that or it rejects it. If it rejects that submission, the person stands trial. If the court accepts the submission that the person is unfit to stand trial, the person does not stand trail. In those circumstances, as I noted earlier, the framework of the act provides, with less serious offences, that the accused may actually be released and the charges dismissed. For more serious offences, it provides for the making of a custody order, which is what happened with Mr Noble. In making that custody order, as I noted, the court must take into account a range of matters, including, and very importantly, the strength of the evidence against the person. As a matter of legal procedure in the circumstances in which there is such a custody order, the indictment, which first brings the person to the court, is quashed under the Mental Health Act. When the custody order takes effect, the indictment is quashed. Mr J.R. Quigley : But if his health improves, he can re-present. Mr C.C. PORTER : The member for Mindarie should just listen for a moment and then make his submissions afterwards. Several members interjected. The SPEAKER : Thank you, members! Mr C.C. PORTER : At that point, under the provisions of the act, the person is held in custody pursuant to the custody order, and whether there is an indictment or not is irrelevant to the legal basis for the person being held in custody. In fact, the act provides for the fact that if there is a custody order, the indictment must be quashed. The member for Mindarie raises a good point. I do not think the strength of the point is in the concept that there must be an indictment on foot, or even the prospect of one, for the detention to be lawful. He raises a good point. But something to be considered here by me, when a recommendation one way or the other is made, is, given that there is some indication that an argument could be put by the DPP that the person is now, after years, fit to stand trial, the DPP has determined that that will not happen even if the evidence exists. The point of distinction, member for Mindarie, is that my understanding—I am very happy to go to the State Solicitor’s Office and seek formal advice on this—is that the existence or otherwise of an indictment, or even the contemplation of the existence of indictment, does not make unlawful the continuing detention under the custody order. Mr J.R. Quigley : Unjust, nonetheless. Mr C.C. PORTER : The point here is whether the best thing in balancing the right of the community to be protected from people alleged to have undertaken serious offences and not fit to stand trial and the right of this person to be free in circumstances in which it has not been proved against him that he committed those offences is presently being properly achieved. I would say that, at the moment, it is a very, very fine balance in these circumstances. The point the member for Mindarie raises is kind of technically legally interesting but wrong. The real point here is whether the continuing detention is in the best interests of this person and the state, given very finely balanced considerations. I have my doubts, but I must await the recommendations in the report from the Mentally Impaired Accused Review Board before I make a decision that then will go to the Governor, and that is what I will do. Mr P. Papalia : All she considers is what security the original sentence — Mr C.C. PORTER : She is who? Mr P. Papalia : The chair. When she assesses it, she gives undue weight to the original charge. She does not consider any of his behaviour since then. You know that’s the case. Mr C.C. PORTER : That is totally incorrect. If the member for Warnbro had ever read one of these reports, which he probably has not had an opportunity to do, he would see that, in making that determination about whether someone should be released either on conditions or at large, the board takes into account the original nature and seriousness of the offences, the strength of the case that was originally against the person, the continuing risk the person might pose to the community, the safety of the community, the ability to be properly supervised according to conditions, and a range of other factors. The system is not perfect, but it is a very good system. That brings me to the point put by a number of people in serious submissions to me that one of the central features of debate about this system is whether the executive wing of government—that is, the Attorney General of the day—should have the last say in these matters. A serious submission has been put out there that the Mentally Impaired Accused Review Board, or a body like it, stocked full of professionals as it is—psychiatrists and judicial officers—should have the final say in the release back into the community of a person who has been declared unfit to stand trial, and the executive government should not be involved at all. I do not think it is a very wise submission precisely for reasons such as this. I reserve the residual power when a recommendation is made for continuing detention to not observe that recommendation and make a different recommendation to the Governor or, indeed, if a recommendation comes up for conditional release or release at large, to refuse to make the on-recommendation to the Governor. I think the people of Western Australia are better served by having elected members in the executive in charge of that decision. Mr P. Papalia : I agree. Mr C.C. PORTER : The point is interesting, but I do not think critical to the decision at hand, which is: what do we do now when the report comes back from the Mentally Impaired Accused Review Board?
(2) Why did the Attorney General allow Mr Noble’s unlawful incarceration to continue since the time the Director of Public Prosecutions indicated that there was no intention to proceed with a prosecution against Mr Noble? (3) How many other people who do not face any charges and whom the DPP does not intend to charge are being held under the Criminal Law (Mentally Impaired Accused) Act? Mr C.C. PORTER replied: I thank the member for his question, which raises an interesting, if somewhat discrete, point of law; that is, when an unfitness to stand trial determination is made by a court, it is generally made at a time, obviously, when charges are laid and the person is before the court pursuant to those charges. In those circumstances, the court receives, on an application from the accused person’s counsel, submissions that the accused person is unfit to stand trial due to some or other mental infirmity. That is to be shown by the accused person on balance of probabilities, and the court accepts that or it rejects it. If it rejects that submission, the person stands trial. If the court accepts the submission that the person is unfit to stand trial, the person does not stand trail. In those circumstances, as I noted earlier, the framework of the act provides, with less serious offences, that the accused may actually be released and the charges dismissed. For more serious offences, it provides for the making of a custody order, which is what happened with Mr Noble. In making that custody order, as I noted, the court must take into account a range of matters, including, and very importantly, the strength of the evidence against the person. As a matter of legal procedure in the circumstances in which there is such a custody order, the indictment, which first brings the person to the court, is quashed under the Mental Health Act. When the custody order takes effect, the indictment is quashed. Mr J.R. Quigley : But if his health improves, he can re-present. Mr C.C. PORTER : The member for Mindarie should just listen for a moment and then make his submissions afterwards. Several members interjected. The SPEAKER : Thank you, members! Mr C.C. PORTER : At that point, under the provisions of the act, the person is held in custody pursuant to the custody order, and whether there is an indictment or not is irrelevant to the legal basis for the person being held in custody. In fact, the act provides for the fact that if there is a custody order, the indictment must be quashed. The member for Mindarie raises a good point. I do not think the strength of the point is in the concept that there must be an indictment on foot, or even the prospect of one, for the detention to be lawful. He raises a good point. But something to be considered here by me, when a recommendation one way or the other is made, is, given that there is some indication that an argument could be put by the DPP that the person is now, after years, fit to stand trial, the DPP has determined that that will not happen even if the evidence exists. The point of distinction, member for Mindarie, is that my understanding—I am very happy to go to the State Solicitor’s Office and seek formal advice on this—is that the existence or otherwise of an indictment, or even the contemplation of the existence of indictment, does not make unlawful the continuing detention under the custody order. Mr J.R. Quigley : Unjust, nonetheless. Mr C.C. PORTER : The point here is whether the best thing in balancing the right of the community to be protected from people alleged to have undertaken serious offences and not fit to stand trial and the right of this person to be free in circumstances in which it has not been proved against him that he committed those offences is presently being properly achieved. I would say that, at the moment, it is a very, very fine balance in these circumstances. The point the member for Mindarie raises is kind of technically legally interesting but wrong. The real point here is whether the continuing detention is in the best interests of this person and the state, given very finely balanced considerations. I have my doubts, but I must await the recommendations in the report from the Mentally Impaired Accused Review Board before I make a decision that then will go to the Governor, and that is what I will do. Mr P. Papalia : All she considers is what security the original sentence — Mr C.C. PORTER : She is who? Mr P. Papalia : The chair. When she assesses it, she gives undue weight to the original charge. She does not consider any of his behaviour since then. You know that’s the case. Mr C.C. PORTER : That is totally incorrect. If the member for Warnbro had ever read one of these reports, which he probably has not had an opportunity to do, he would see that, in making that determination about whether someone should be released either on conditions or at large, the board takes into account the original nature and seriousness of the offences, the strength of the case that was originally against the person, the continuing risk the person might pose to the community, the safety of the community, the ability to be properly supervised according to conditions, and a range of other factors. The system is not perfect, but it is a very good system. That brings me to the point put by a number of people in serious submissions to me that one of the central features of debate about this system is whether the executive wing of government—that is, the Attorney General of the day—should have the last say in these matters. A serious submission has been put out there that the Mentally Impaired Accused Review Board, or a body like it, stocked full of professionals as it is—psychiatrists and judicial officers—should have the final say in the release back into the community of a person who has been declared unfit to stand trial, and the executive government should not be involved at all. I do not think it is a very wise submission precisely for reasons such as this. I reserve the residual power when a recommendation is made for continuing detention to not observe that recommendation and make a different recommendation to the Governor or, indeed, if a recommendation comes up for conditional release or release at large, to refuse to make the on-recommendation to the Governor. I think the people of Western Australia are better served by having elected members in the executive in charge of that decision. Mr P. Papalia : I agree. Mr C.C. PORTER : The point is interesting, but I do not think critical to the decision at hand, which is: what do we do now when the report comes back from the Mentally Impaired Accused Review Board?
(3) How many other people who do not face any charges and whom the DPP does not intend to charge are being held under the Criminal Law (Mentally Impaired Accused) Act? Mr C.C. PORTER replied: I thank the member for his question, which raises an interesting, if somewhat discrete, point of law; that is, when an unfitness to stand trial determination is made by a court, it is generally made at a time, obviously, when charges are laid and the person is before the court pursuant to those charges. In those circumstances, the court receives, on an application from the accused person’s counsel, submissions that the accused person is unfit to stand trial due to some or other mental infirmity. That is to be shown by the accused person on balance of probabilities, and the court accepts that or it rejects it. If it rejects that submission, the person stands trial. If the court accepts the submission that the person is unfit to stand trial, the person does not stand trail. In those circumstances, as I noted earlier, the framework of the act provides, with less serious offences, that the accused may actually be released and the charges dismissed. For more serious offences, it provides for the making of a custody order, which is what happened with Mr Noble. In making that custody order, as I noted, the court must take into account a range of matters, including, and very importantly, the strength of the evidence against the person. As a matter of legal procedure in the circumstances in which there is such a custody order, the indictment, which first brings the person to the court, is quashed under the Mental Health Act. When the custody order takes effect, the indictment is quashed. Mr J.R. Quigley : But if his health improves, he can re-present. Mr C.C. PORTER : The member for Mindarie should just listen for a moment and then make his submissions afterwards. Several members interjected. The SPEAKER : Thank you, members! Mr C.C. PORTER : At that point, under the provisions of the act, the person is held in custody pursuant to the custody order, and whether there is an indictment or not is irrelevant to the legal basis for the person being held in custody. In fact, the act provides for the fact that if there is a custody order, the indictment must be quashed. The member for Mindarie raises a good point. I do not think the strength of the point is in the concept that there must be an indictment on foot, or even the prospect of one, for the detention to be lawful. He raises a good point. But something to be considered here by me, when a recommendation one way or the other is made, is, given that there is some indication that an argument could be put by the DPP that the person is now, after years, fit to stand trial, the DPP has determined that that will not happen even if the evidence exists. The point of distinction, member for Mindarie, is that my understanding—I am very happy to go to the State Solicitor’s Office and seek formal advice on this—is that the existence or otherwise of an indictment, or even the contemplation of the existence of indictment, does not make unlawful the continuing detention under the custody order. Mr J.R. Quigley : Unjust, nonetheless. Mr C.C. PORTER : The point here is whether the best thing in balancing the right of the community to be protected from people alleged to have undertaken serious offences and not fit to stand trial and the right of this person to be free in circumstances in which it has not been proved against him that he committed those offences is presently being properly achieved. I would say that, at the moment, it is a very, very fine balance in these circumstances. The point the member for Mindarie raises is kind of technically legally interesting but wrong. The real point here is whether the continuing detention is in the best interests of this person and the state, given very finely balanced considerations. I have my doubts, but I must await the recommendations in the report from the Mentally Impaired Accused Review Board before I make a decision that then will go to the Governor, and that is what I will do. Mr P. Papalia : All she considers is what security the original sentence — Mr C.C. PORTER : She is who? Mr P. Papalia : The chair. When she assesses it, she gives undue weight to the original charge. She does not consider any of his behaviour since then. You know that’s the case. Mr C.C. PORTER : That is totally incorrect. If the member for Warnbro had ever read one of these reports, which he probably has not had an opportunity to do, he would see that, in making that determination about whether someone should be released either on conditions or at large, the board takes into account the original nature and seriousness of the offences, the strength of the case that was originally against the person, the continuing risk the person might pose to the community, the safety of the community, the ability to be properly supervised according to conditions, and a range of other factors. The system is not perfect, but it is a very good system. That brings me to the point put by a number of people in serious submissions to me that one of the central features of debate about this system is whether the executive wing of government—that is, the Attorney General of the day—should have the last say in these matters. A serious submission has been put out there that the Mentally Impaired Accused Review Board, or a body like it, stocked full of professionals as it is—psychiatrists and judicial officers—should have the final say in the release back into the community of a person who has been declared unfit to stand trial, and the executive government should not be involved at all. I do not think it is a very wise submission precisely for reasons such as this. I reserve the residual power when a recommendation is made for continuing detention to not observe that recommendation and make a different recommendation to the Governor or, indeed, if a recommendation comes up for conditional release or release at large, to refuse to make the on-recommendation to the Governor. I think the people of Western Australia are better served by having elected members in the executive in charge of that decision. Mr P. Papalia : I agree. Mr C.C. PORTER : The point is interesting, but I do not think critical to the decision at hand, which is: what do we do now when the report comes back from the Mentally Impaired Accused Review Board?
Mr C.C. PORTER replied: I thank the member for his question, which raises an interesting, if somewhat discrete, point of law; that is, when an unfitness to stand trial determination is made by a court, it is generally made at a time, obviously, when charges are laid and the person is before the court pursuant to those charges. In those circumstances, the court receives, on an application from the accused person’s counsel, submissions that the accused person is unfit to stand trial due to some or other mental infirmity. That is to be shown by the accused person on balance of probabilities, and the court accepts that or it rejects it. If it rejects that submission, the person stands trial. If the court accepts the submission that the person is unfit to stand trial, the person does not stand trail. In those circumstances, as I noted earlier, the framework of the act provides, with less serious offences, that the accused may actually be released and the charges dismissed. For more serious offences, it provides for the making of a custody order, which is what happened with Mr Noble. In making that custody order, as I noted, the court must take into account a range of matters, including, and very importantly, the strength of the evidence against the person. As a matter of legal procedure in the circumstances in which there is such a custody order, the indictment, which first brings the person to the court, is quashed under the Mental Health Act. When the custody order takes effect, the indictment is quashed. Mr J.R. Quigley : But if his health improves, he can re-present. Mr C.C. PORTER : The member for Mindarie should just listen for a moment and then make his submissions afterwards. Several members interjected. The SPEAKER : Thank you, members! Mr C.C. PORTER : At that point, under the provisions of the act, the person is held in custody pursuant to the custody order, and whether there is an indictment or not is irrelevant to the legal basis for the person being held in custody. In fact, the act provides for the fact that if there is a custody order, the indictment must be quashed. The member for Mindarie raises a good point. I do not think the strength of the point is in the concept that there must be an indictment on foot, or even the prospect of one, for the detention to be lawful. He raises a good point. But something to be considered here by me, when a recommendation one way or the other is made, is, given that there is some indication that an argument could be put by the DPP that the person is now, after years, fit to stand trial, the DPP has determined that that will not happen even if the evidence exists. The point of distinction, member for Mindarie, is that my understanding—I am very happy to go to the State Solicitor’s Office and seek formal advice on this—is that the existence or otherwise of an indictment, or even the contemplation of the existence of indictment, does not make unlawful the continuing detention under the custody order. Mr J.R. Quigley : Unjust, nonetheless. Mr C.C. PORTER : The point here is whether the best thing in balancing the right of the community to be protected from people alleged to have undertaken serious offences and not fit to stand trial and the right of this person to be free in circumstances in which it has not been proved against him that he committed those offences is presently being properly achieved. I would say that, at the moment, it is a very, very fine balance in these circumstances. The point the member for Mindarie raises is kind of technically legally interesting but wrong. The real point here is whether the continuing detention is in the best interests of this person and the state, given very finely balanced considerations. I have my doubts, but I must await the recommendations in the report from the Mentally Impaired Accused Review Board before I make a decision that then will go to the Governor, and that is what I will do. Mr P. Papalia : All she considers is what security the original sentence — Mr C.C. PORTER : She is who? Mr P. Papalia : The chair. When she assesses it, she gives undue weight to the original charge. She does not consider any of his behaviour since then. You know that’s the case. Mr C.C. PORTER : That is totally incorrect. If the member for Warnbro had ever read one of these reports, which he probably has not had an opportunity to do, he would see that, in making that determination about whether someone should be released either on conditions or at large, the board takes into account the original nature and seriousness of the offences, the strength of the case that was originally against the person, the continuing risk the person might pose to the community, the safety of the community, the ability to be properly supervised according to conditions, and a range of other factors. The system is not perfect, but it is a very good system. That brings me to the point put by a number of people in serious submissions to me that one of the central features of debate about this system is whether the executive wing of government—that is, the Attorney General of the day—should have the last say in these matters. A serious submission has been put out there that the Mentally Impaired Accused Review Board, or a body like it, stocked full of professionals as it is—psychiatrists and judicial officers—should have the final say in the release back into the community of a person who has been declared unfit to stand trial, and the executive government should not be involved at all. I do not think it is a very wise submission precisely for reasons such as this. I reserve the residual power when a recommendation is made for continuing detention to not observe that recommendation and make a different recommendation to the Governor or, indeed, if a recommendation comes up for conditional release or release at large, to refuse to make the on-recommendation to the Governor. I think the people of Western Australia are better served by having elected members in the executive in charge of that decision. Mr P. Papalia : I agree. Mr C.C. PORTER : The point is interesting, but I do not think critical to the decision at hand, which is: what do we do now when the report comes back from the Mentally Impaired Accused Review Board?
I thank the member for his question, which raises an interesting, if somewhat discrete, point of law; that is, when an unfitness to stand trial determination is made by a court, it is generally made at a time, obviously, when charges are laid and the person is before the court pursuant to those charges. In those circumstances, the court receives, on an application from the accused person’s counsel, submissions that the accused person is unfit to stand trial due to some or other mental infirmity. That is to be shown by the accused person on balance of probabilities, and the court accepts that or it rejects it. If it rejects that submission, the person stands trial. If the court accepts the submission that the person is unfit to stand trial, the person does not stand trail. In those circumstances, as I noted earlier, the framework of the act provides, with less serious offences, that the accused may actually be released and the charges dismissed. For more serious offences, it provides for the making of a custody order, which is what happened with Mr Noble. In making that custody order, as I noted, the court must take into account a range of matters, including, and very importantly, the strength of the evidence against the person. As a matter of legal procedure in the circumstances in which there is such a custody order, the indictment, which first brings the person to the court, is quashed under the Mental Health Act. When the custody order takes effect, the indictment is quashed. Mr J.R. Quigley : But if his health improves, he can re-present. Mr C.C. PORTER : The member for Mindarie should just listen for a moment and then make his submissions afterwards. Several members interjected. The SPEAKER : Thank you, members! Mr C.C. PORTER : At that point, under the provisions of the act, the person is held in custody pursuant to the custody order, and whether there is an indictment or not is irrelevant to the legal basis for the person being held in custody. In fact, the act provides for the fact that if there is a custody order, the indictment must be quashed. The member for Mindarie raises a good point. I do not think the strength of the point is in the concept that there must be an indictment on foot, or even the prospect of one, for the detention to be lawful. He raises a good point. But something to be considered here by me, when a recommendation one way or the other is made, is, given that there is some indication that an argument could be put by the DPP that the person is now, after years, fit to stand trial, the DPP has determined that that will not happen even if the evidence exists. The point of distinction, member for Mindarie, is that my understanding—I am very happy to go to the State Solicitor’s Office and seek formal advice on this—is that the existence or otherwise of an indictment, or even the contemplation of the existence of indictment, does not make unlawful the continuing detention under the custody order. Mr J.R. Quigley : Unjust, nonetheless. Mr C.C. PORTER : The point here is whether the best thing in balancing the right of the community to be protected from people alleged to have undertaken serious offences and not fit to stand trial and the right of this person to be free in circumstances in which it has not been proved against him that he committed those offences is presently being properly achieved. I would say that, at the moment, it is a very, very fine balance in these circumstances. The point the member for Mindarie raises is kind of technically legally interesting but wrong. The real point here is whether the continuing detention is in the best interests of this person and the state, given very finely balanced considerations. I have my doubts, but I must await the recommendations in the report from the Mentally Impaired Accused Review Board before I make a decision that then will go to the Governor, and that is what I will do. Mr P. Papalia : All she considers is what security the original sentence — Mr C.C. PORTER : She is who? Mr P. Papalia : The chair. When she assesses it, she gives undue weight to the original charge. She does not consider any of his behaviour since then. You know that’s the case. Mr C.C. PORTER : That is totally incorrect. If the member for Warnbro had ever read one of these reports, which he probably has not had an opportunity to do, he would see that, in making that determination about whether someone should be released either on conditions or at large, the board takes into account the original nature and seriousness of the offences, the strength of the case that was originally against the person, the continuing risk the person might pose to the community, the safety of the community, the ability to be properly supervised according to conditions, and a range of other factors. The system is not perfect, but it is a very good system. That brings me to the point put by a number of people in serious submissions to me that one of the central features of debate about this system is whether the executive wing of government—that is, the Attorney General of the day—should have the last say in these matters. A serious submission has been put out there that the Mentally Impaired Accused Review Board, or a body like it, stocked full of professionals as it is—psychiatrists and judicial officers—should have the final say in the release back into the community of a person who has been declared unfit to stand trial, and the executive government should not be involved at all. I do not think it is a very wise submission precisely for reasons such as this. I reserve the residual power when a recommendation is made for continuing detention to not observe that recommendation and make a different recommendation to the Governor or, indeed, if a recommendation comes up for conditional release or release at large, to refuse to make the on-recommendation to the Governor. I think the people of Western Australia are better served by having elected members in the executive in charge of that decision. Mr P. Papalia : I agree. Mr C.C. PORTER : The point is interesting, but I do not think critical to the decision at hand, which is: what do we do now when the report comes back from the Mentally Impaired Accused Review Board?
Mr J.R. Quigley : But if his health improves, he can re-present. Mr C.C. PORTER : The member for Mindarie should just listen for a moment and then make his submissions afterwards. Several members interjected. The SPEAKER : Thank you, members! Mr C.C. PORTER : At that point, under the provisions of the act, the person is held in custody pursuant to the custody order, and whether there is an indictment or not is irrelevant to the legal basis for the person being held in custody. In fact, the act provides for the fact that if there is a custody order, the indictment must be quashed. The member for Mindarie raises a good point. I do not think the strength of the point is in the concept that there must be an indictment on foot, or even the prospect of one, for the detention to be lawful. He raises a good point. But something to be considered here by me, when a recommendation one way or the other is made, is, given that there is some indication that an argument could be put by the DPP that the person is now, after years, fit to stand trial, the DPP has determined that that will not happen even if the evidence exists. The point of distinction, member for Mindarie, is that my understanding—I am very happy to go to the State Solicitor’s Office and seek formal advice on this—is that the existence or otherwise of an indictment, or even the contemplation of the existence of indictment, does not make unlawful the continuing detention under the custody order. Mr J.R. Quigley : Unjust, nonetheless. Mr C.C. PORTER : The point here is whether the best thing in balancing the right of the community to be protected from people alleged to have undertaken serious offences and not fit to stand trial and the right of this person to be free in circumstances in which it has not been proved against him that he committed those offences is presently being properly achieved. I would say that, at the moment, it is a very, very fine balance in these circumstances. The point the member for Mindarie raises is kind of technically legally interesting but wrong. The real point here is whether the continuing detention is in the best interests of this person and the state, given very finely balanced considerations. I have my doubts, but I must await the recommendations in the report from the Mentally Impaired Accused Review Board before I make a decision that then will go to the Governor, and that is what I will do. Mr P. Papalia : All she considers is what security the original sentence — Mr C.C. PORTER : She is who? Mr P. Papalia : The chair. When she assesses it, she gives undue weight to the original charge. She does not consider any of his behaviour since then. You know that’s the case. Mr C.C. PORTER : That is totally incorrect. If the member for Warnbro had ever read one of these reports, which he probably has not had an opportunity to do, he would see that, in making that determination about whether someone should be released either on conditions or at large, the board takes into account the original nature and seriousness of the offences, the strength of the case that was originally against the person, the continuing risk the person might pose to the community, the safety of the community, the ability to be properly supervised according to conditions, and a range of other factors. The system is not perfect, but it is a very good system. That brings me to the point put by a number of people in serious submissions to me that one of the central features of debate about this system is whether the executive wing of government—that is, the Attorney General of the day—should have the last say in these matters. A serious submission has been put out there that the Mentally Impaired Accused Review Board, or a body like it, stocked full of professionals as it is—psychiatrists and judicial officers—should have the final say in the release back into the community of a person who has been declared unfit to stand trial, and the executive government should not be involved at all. I do not think it is a very wise submission precisely for reasons such as this. I reserve the residual power when a recommendation is made for continuing detention to not observe that recommendation and make a different recommendation to the Governor or, indeed, if a recommendation comes up for conditional release or release at large, to refuse to make the on-recommendation to the Governor. I think the people of Western Australia are better served by having elected members in the executive in charge of that decision. Mr P. Papalia : I agree. Mr C.C. PORTER : The point is interesting, but I do not think critical to the decision at hand, which is: what do we do now when the report comes back from the Mentally Impaired Accused Review Board?
Mr C.C. PORTER : The member for Mindarie should just listen for a moment and then make his submissions afterwards. Several members interjected. The SPEAKER : Thank you, members! Mr C.C. PORTER : At that point, under the provisions of the act, the person is held in custody pursuant to the custody order, and whether there is an indictment or not is irrelevant to the legal basis for the person being held in custody. In fact, the act provides for the fact that if there is a custody order, the indictment must be quashed. The member for Mindarie raises a good point. I do not think the strength of the point is in the concept that there must be an indictment on foot, or even the prospect of one, for the detention to be lawful. He raises a good point. But something to be considered here by me, when a recommendation one way or the other is made, is, given that there is some indication that an argument could be put by the DPP that the person is now, after years, fit to stand trial, the DPP has determined that that will not happen even if the evidence exists. The point of distinction, member for Mindarie, is that my understanding—I am very happy to go to the State Solicitor’s Office and seek formal advice on this—is that the existence or otherwise of an indictment, or even the contemplation of the existence of indictment, does not make unlawful the continuing detention under the custody order. Mr J.R. Quigley : Unjust, nonetheless. Mr C.C. PORTER : The point here is whether the best thing in balancing the right of the community to be protected from people alleged to have undertaken serious offences and not fit to stand trial and the right of this person to be free in circumstances in which it has not been proved against him that he committed those offences is presently being properly achieved. I would say that, at the moment, it is a very, very fine balance in these circumstances. The point the member for Mindarie raises is kind of technically legally interesting but wrong. The real point here is whether the continuing detention is in the best interests of this person and the state, given very finely balanced considerations. I have my doubts, but I must await the recommendations in the report from the Mentally Impaired Accused Review Board before I make a decision that then will go to the Governor, and that is what I will do. Mr P. Papalia : All she considers is what security the original sentence — Mr C.C. PORTER : She is who? Mr P. Papalia : The chair. When she assesses it, she gives undue weight to the original charge. She does not consider any of his behaviour since then. You know that’s the case. Mr C.C. PORTER : That is totally incorrect. If the member for Warnbro had ever read one of these reports, which he probably has not had an opportunity to do, he would see that, in making that determination about whether someone should be released either on conditions or at large, the board takes into account the original nature and seriousness of the offences, the strength of the case that was originally against the person, the continuing risk the person might pose to the community, the safety of the community, the ability to be properly supervised according to conditions, and a range of other factors. The system is not perfect, but it is a very good system. That brings me to the point put by a number of people in serious submissions to me that one of the central features of debate about this system is whether the executive wing of government—that is, the Attorney General of the day—should have the last say in these matters. A serious submission has been put out there that the Mentally Impaired Accused Review Board, or a body like it, stocked full of professionals as it is—psychiatrists and judicial officers—should have the final say in the release back into the community of a person who has been declared unfit to stand trial, and the executive government should not be involved at all. I do not think it is a very wise submission precisely for reasons such as this. I reserve the residual power when a recommendation is made for continuing detention to not observe that recommendation and make a different recommendation to the Governor or, indeed, if a recommendation comes up for conditional release or release at large, to refuse to make the on-recommendation to the Governor. I think the people of Western Australia are better served by having elected members in the executive in charge of that decision. Mr P. Papalia : I agree. Mr C.C. PORTER : The point is interesting, but I do not think critical to the decision at hand, which is: what do we do now when the report comes back from the Mentally Impaired Accused Review Board?
Several members interjected. The SPEAKER : Thank you, members! Mr C.C. PORTER : At that point, under the provisions of the act, the person is held in custody pursuant to the custody order, and whether there is an indictment or not is irrelevant to the legal basis for the person being held in custody. In fact, the act provides for the fact that if there is a custody order, the indictment must be quashed. The member for Mindarie raises a good point. I do not think the strength of the point is in the concept that there must be an indictment on foot, or even the prospect of one, for the detention to be lawful. He raises a good point. But something to be considered here by me, when a recommendation one way or the other is made, is, given that there is some indication that an argument could be put by the DPP that the person is now, after years, fit to stand trial, the DPP has determined that that will not happen even if the evidence exists. The point of distinction, member for Mindarie, is that my understanding—I am very happy to go to the State Solicitor’s Office and seek formal advice on this—is that the existence or otherwise of an indictment, or even the contemplation of the existence of indictment, does not make unlawful the continuing detention under the custody order. Mr J.R. Quigley : Unjust, nonetheless. Mr C.C. PORTER : The point here is whether the best thing in balancing the right of the community to be protected from people alleged to have undertaken serious offences and not fit to stand trial and the right of this person to be free in circumstances in which it has not been proved against him that he committed those offences is presently being properly achieved. I would say that, at the moment, it is a very, very fine balance in these circumstances. The point the member for Mindarie raises is kind of technically legally interesting but wrong. The real point here is whether the continuing detention is in the best interests of this person and the state, given very finely balanced considerations. I have my doubts, but I must await the recommendations in the report from the Mentally Impaired Accused Review Board before I make a decision that then will go to the Governor, and that is what I will do. Mr P. Papalia : All she considers is what security the original sentence — Mr C.C. PORTER : She is who? Mr P. Papalia : The chair. When she assesses it, she gives undue weight to the original charge. She does not consider any of his behaviour since then. You know that’s the case. Mr C.C. PORTER : That is totally incorrect. If the member for Warnbro had ever read one of these reports, which he probably has not had an opportunity to do, he would see that, in making that determination about whether someone should be released either on conditions or at large, the board takes into account the original nature and seriousness of the offences, the strength of the case that was originally against the person, the continuing risk the person might pose to the community, the safety of the community, the ability to be properly supervised according to conditions, and a range of other factors. The system is not perfect, but it is a very good system. That brings me to the point put by a number of people in serious submissions to me that one of the central features of debate about this system is whether the executive wing of government—that is, the Attorney General of the day—should have the last say in these matters. A serious submission has been put out there that the Mentally Impaired Accused Review Board, or a body like it, stocked full of professionals as it is—psychiatrists and judicial officers—should have the final say in the release back into the community of a person who has been declared unfit to stand trial, and the executive government should not be involved at all. I do not think it is a very wise submission precisely for reasons such as this. I reserve the residual power when a recommendation is made for continuing detention to not observe that recommendation and make a different recommendation to the Governor or, indeed, if a recommendation comes up for conditional release or release at large, to refuse to make the on-recommendation to the Governor. I think the people of Western Australia are better served by having elected members in the executive in charge of that decision. Mr P. Papalia : I agree. Mr C.C. PORTER : The point is interesting, but I do not think critical to the decision at hand, which is: what do we do now when the report comes back from the Mentally Impaired Accused Review Board?
The SPEAKER : Thank you, members! Mr C.C. PORTER : At that point, under the provisions of the act, the person is held in custody pursuant to the custody order, and whether there is an indictment or not is irrelevant to the legal basis for the person being held in custody. In fact, the act provides for the fact that if there is a custody order, the indictment must be quashed. The member for Mindarie raises a good point. I do not think the strength of the point is in the concept that there must be an indictment on foot, or even the prospect of one, for the detention to be lawful. He raises a good point. But something to be considered here by me, when a recommendation one way or the other is made, is, given that there is some indication that an argument could be put by the DPP that the person is now, after years, fit to stand trial, the DPP has determined that that will not happen even if the evidence exists. The point of distinction, member for Mindarie, is that my understanding—I am very happy to go to the State Solicitor’s Office and seek formal advice on this—is that the existence or otherwise of an indictment, or even the contemplation of the existence of indictment, does not make unlawful the continuing detention under the custody order. Mr J.R. Quigley : Unjust, nonetheless. Mr C.C. PORTER : The point here is whether the best thing in balancing the right of the community to be protected from people alleged to have undertaken serious offences and not fit to stand trial and the right of this person to be free in circumstances in which it has not been proved against him that he committed those offences is presently being properly achieved. I would say that, at the moment, it is a very, very fine balance in these circumstances. The point the member for Mindarie raises is kind of technically legally interesting but wrong. The real point here is whether the continuing detention is in the best interests of this person and the state, given very finely balanced considerations. I have my doubts, but I must await the recommendations in the report from the Mentally Impaired Accused Review Board before I make a decision that then will go to the Governor, and that is what I will do. Mr P. Papalia : All she considers is what security the original sentence — Mr C.C. PORTER : She is who? Mr P. Papalia : The chair. When she assesses it, she gives undue weight to the original charge. She does not consider any of his behaviour since then. You know that’s the case. Mr C.C. PORTER : That is totally incorrect. If the member for Warnbro had ever read one of these reports, which he probably has not had an opportunity to do, he would see that, in making that determination about whether someone should be released either on conditions or at large, the board takes into account the original nature and seriousness of the offences, the strength of the case that was originally against the person, the continuing risk the person might pose to the community, the safety of the community, the ability to be properly supervised according to conditions, and a range of other factors. The system is not perfect, but it is a very good system. That brings me to the point put by a number of people in serious submissions to me that one of the central features of debate about this system is whether the executive wing of government—that is, the Attorney General of the day—should have the last say in these matters. A serious submission has been put out there that the Mentally Impaired Accused Review Board, or a body like it, stocked full of professionals as it is—psychiatrists and judicial officers—should have the final say in the release back into the community of a person who has been declared unfit to stand trial, and the executive government should not be involved at all. I do not think it is a very wise submission precisely for reasons such as this. I reserve the residual power when a recommendation is made for continuing detention to not observe that recommendation and make a different recommendation to the Governor or, indeed, if a recommendation comes up for conditional release or release at large, to refuse to make the on-recommendation to the Governor. I think the people of Western Australia are better served by having elected members in the executive in charge of that decision. Mr P. Papalia : I agree. Mr C.C. PORTER : The point is interesting, but I do not think critical to the decision at hand, which is: what do we do now when the report comes back from the Mentally Impaired Accused Review Board?
Mr C.C. PORTER : At that point, under the provisions of the act, the person is held in custody pursuant to the custody order, and whether there is an indictment or not is irrelevant to the legal basis for the person being held in custody. In fact, the act provides for the fact that if there is a custody order, the indictment must be quashed. The member for Mindarie raises a good point. I do not think the strength of the point is in the concept that there must be an indictment on foot, or even the prospect of one, for the detention to be lawful. He raises a good point. But something to be considered here by me, when a recommendation one way or the other is made, is, given that there is some indication that an argument could be put by the DPP that the person is now, after years, fit to stand trial, the DPP has determined that that will not happen even if the evidence exists. The point of distinction, member for Mindarie, is that my understanding—I am very happy to go to the State Solicitor’s Office and seek formal advice on this—is that the existence or otherwise of an indictment, or even the contemplation of the existence of indictment, does not make unlawful the continuing detention under the custody order. Mr J.R. Quigley : Unjust, nonetheless. Mr C.C. PORTER : The point here is whether the best thing in balancing the right of the community to be protected from people alleged to have undertaken serious offences and not fit to stand trial and the right of this person to be free in circumstances in which it has not been proved against him that he committed those offences is presently being properly achieved. I would say that, at the moment, it is a very, very fine balance in these circumstances. The point the member for Mindarie raises is kind of technically legally interesting but wrong. The real point here is whether the continuing detention is in the best interests of this person and the state, given very finely balanced considerations. I have my doubts, but I must await the recommendations in the report from the Mentally Impaired Accused Review Board before I make a decision that then will go to the Governor, and that is what I will do. Mr P. Papalia : All she considers is what security the original sentence — Mr C.C. PORTER : She is who? Mr P. Papalia : The chair. When she assesses it, she gives undue weight to the original charge. She does not consider any of his behaviour since then. You know that’s the case. Mr C.C. PORTER : That is totally incorrect. If the member for Warnbro had ever read one of these reports, which he probably has not had an opportunity to do, he would see that, in making that determination about whether someone should be released either on conditions or at large, the board takes into account the original nature and seriousness of the offences, the strength of the case that was originally against the person, the continuing risk the person might pose to the community, the safety of the community, the ability to be properly supervised according to conditions, and a range of other factors. The system is not perfect, but it is a very good system. That brings me to the point put by a number of people in serious submissions to me that one of the central features of debate about this system is whether the executive wing of government—that is, the Attorney General of the day—should have the last say in these matters. A serious submission has been put out there that the Mentally Impaired Accused Review Board, or a body like it, stocked full of professionals as it is—psychiatrists and judicial officers—should have the final say in the release back into the community of a person who has been declared unfit to stand trial, and the executive government should not be involved at all. I do not think it is a very wise submission precisely for reasons such as this. I reserve the residual power when a recommendation is made for continuing detention to not observe that recommendation and make a different recommendation to the Governor or, indeed, if a recommendation comes up for conditional release or release at large, to refuse to make the on-recommendation to the Governor. I think the people of Western Australia are better served by having elected members in the executive in charge of that decision. Mr P. Papalia : I agree. Mr C.C. PORTER : The point is interesting, but I do not think critical to the decision at hand, which is: what do we do now when the report comes back from the Mentally Impaired Accused Review Board?
The member for Mindarie raises a good point. I do not think the strength of the point is in the concept that there must be an indictment on foot, or even the prospect of one, for the detention to be lawful. He raises a good point. But something to be considered here by me, when a recommendation one way or the other is made, is, given that there is some indication that an argument could be put by the DPP that the person is now, after years, fit to stand trial, the DPP has determined that that will not happen even if the evidence exists. The point of distinction, member for Mindarie, is that my understanding—I am very happy to go to the State Solicitor’s Office and seek formal advice on this—is that the existence or otherwise of an indictment, or even the contemplation of the existence of indictment, does not make unlawful the continuing detention under the custody order. Mr J.R. Quigley : Unjust, nonetheless. Mr C.C. PORTER : The point here is whether the best thing in balancing the right of the community to be protected from people alleged to have undertaken serious offences and not fit to stand trial and the right of this person to be free in circumstances in which it has not been proved against him that he committed those offences is presently being properly achieved. I would say that, at the moment, it is a very, very fine balance in these circumstances. The point the member for Mindarie raises is kind of technically legally interesting but wrong. The real point here is whether the continuing detention is in the best interests of this person and the state, given very finely balanced considerations. I have my doubts, but I must await the recommendations in the report from the Mentally Impaired Accused Review Board before I make a decision that then will go to the Governor, and that is what I will do. Mr P. Papalia : All she considers is what security the original sentence — Mr C.C. PORTER : She is who? Mr P. Papalia : The chair. When she assesses it, she gives undue weight to the original charge. She does not consider any of his behaviour since then. You know that’s the case. Mr C.C. PORTER : That is totally incorrect. If the member for Warnbro had ever read one of these reports, which he probably has not had an opportunity to do, he would see that, in making that determination about whether someone should be released either on conditions or at large, the board takes into account the original nature and seriousness of the offences, the strength of the case that was originally against the person, the continuing risk the person might pose to the community, the safety of the community, the ability to be properly supervised according to conditions, and a range of other factors. The system is not perfect, but it is a very good system. That brings me to the point put by a number of people in serious submissions to me that one of the central features of debate about this system is whether the executive wing of government—that is, the Attorney General of the day—should have the last say in these matters. A serious submission has been put out there that the Mentally Impaired Accused Review Board, or a body like it, stocked full of professionals as it is—psychiatrists and judicial officers—should have the final say in the release back into the community of a person who has been declared unfit to stand trial, and the executive government should not be involved at all. I do not think it is a very wise submission precisely for reasons such as this. I reserve the residual power when a recommendation is made for continuing detention to not observe that recommendation and make a different recommendation to the Governor or, indeed, if a recommendation comes up for conditional release or release at large, to refuse to make the on-recommendation to the Governor. I think the people of Western Australia are better served by having elected members in the executive in charge of that decision. Mr P. Papalia : I agree. Mr C.C. PORTER : The point is interesting, but I do not think critical to the decision at hand, which is: what do we do now when the report comes back from the Mentally Impaired Accused Review Board?
Mr J.R. Quigley : Unjust, nonetheless. Mr C.C. PORTER : The point here is whether the best thing in balancing the right of the community to be protected from people alleged to have undertaken serious offences and not fit to stand trial and the right of this person to be free in circumstances in which it has not been proved against him that he committed those offences is presently being properly achieved. I would say that, at the moment, it is a very, very fine balance in these circumstances. The point the member for Mindarie raises is kind of technically legally interesting but wrong. The real point here is whether the continuing detention is in the best interests of this person and the state, given very finely balanced considerations. I have my doubts, but I must await the recommendations in the report from the Mentally Impaired Accused Review Board before I make a decision that then will go to the Governor, and that is what I will do. Mr P. Papalia : All she considers is what security the original sentence — Mr C.C. PORTER : She is who? Mr P. Papalia : The chair. When she assesses it, she gives undue weight to the original charge. She does not consider any of his behaviour since then. You know that’s the case. Mr C.C. PORTER : That is totally incorrect. If the member for Warnbro had ever read one of these reports, which he probably has not had an opportunity to do, he would see that, in making that determination about whether someone should be released either on conditions or at large, the board takes into account the original nature and seriousness of the offences, the strength of the case that was originally against the person, the continuing risk the person might pose to the community, the safety of the community, the ability to be properly supervised according to conditions, and a range of other factors. The system is not perfect, but it is a very good system. That brings me to the point put by a number of people in serious submissions to me that one of the central features of debate about this system is whether the executive wing of government—that is, the Attorney General of the day—should have the last say in these matters. A serious submission has been put out there that the Mentally Impaired Accused Review Board, or a body like it, stocked full of professionals as it is—psychiatrists and judicial officers—should have the final say in the release back into the community of a person who has been declared unfit to stand trial, and the executive government should not be involved at all. I do not think it is a very wise submission precisely for reasons such as this. I reserve the residual power when a recommendation is made for continuing detention to not observe that recommendation and make a different recommendation to the Governor or, indeed, if a recommendation comes up for conditional release or release at large, to refuse to make the on-recommendation to the Governor. I think the people of Western Australia are better served by having elected members in the executive in charge of that decision. Mr P. Papalia : I agree. Mr C.C. PORTER : The point is interesting, but I do not think critical to the decision at hand, which is: what do we do now when the report comes back from the Mentally Impaired Accused Review Board?
Mr C.C. PORTER : The point here is whether the best thing in balancing the right of the community to be protected from people alleged to have undertaken serious offences and not fit to stand trial and the right of this person to be free in circumstances in which it has not been proved against him that he committed those offences is presently being properly achieved. I would say that, at the moment, it is a very, very fine balance in these circumstances. The point the member for Mindarie raises is kind of technically legally interesting but wrong. The real point here is whether the continuing detention is in the best interests of this person and the state, given very finely balanced considerations. I have my doubts, but I must await the recommendations in the report from the Mentally Impaired Accused Review Board before I make a decision that then will go to the Governor, and that is what I will do. Mr P. Papalia : All she considers is what security the original sentence — Mr C.C. PORTER : She is who? Mr P. Papalia : The chair. When she assesses it, she gives undue weight to the original charge. She does not consider any of his behaviour since then. You know that’s the case. Mr C.C. PORTER : That is totally incorrect. If the member for Warnbro had ever read one of these reports, which he probably has not had an opportunity to do, he would see that, in making that determination about whether someone should be released either on conditions or at large, the board takes into account the original nature and seriousness of the offences, the strength of the case that was originally against the person, the continuing risk the person might pose to the community, the safety of the community, the ability to be properly supervised according to conditions, and a range of other factors. The system is not perfect, but it is a very good system. That brings me to the point put by a number of people in serious submissions to me that one of the central features of debate about this system is whether the executive wing of government—that is, the Attorney General of the day—should have the last say in these matters. A serious submission has been put out there that the Mentally Impaired Accused Review Board, or a body like it, stocked full of professionals as it is—psychiatrists and judicial officers—should have the final say in the release back into the community of a person who has been declared unfit to stand trial, and the executive government should not be involved at all. I do not think it is a very wise submission precisely for reasons such as this. I reserve the residual power when a recommendation is made for continuing detention to not observe that recommendation and make a different recommendation to the Governor or, indeed, if a recommendation comes up for conditional release or release at large, to refuse to make the on-recommendation to the Governor. I think the people of Western Australia are better served by having elected members in the executive in charge of that decision. Mr P. Papalia : I agree. Mr C.C. PORTER : The point is interesting, but I do not think critical to the decision at hand, which is: what do we do now when the report comes back from the Mentally Impaired Accused Review Board?
Mr P. Papalia : All she considers is what security the original sentence — Mr C.C. PORTER : She is who? Mr P. Papalia : The chair. When she assesses it, she gives undue weight to the original charge. She does not consider any of his behaviour since then. You know that’s the case. Mr C.C. PORTER : That is totally incorrect. If the member for Warnbro had ever read one of these reports, which he probably has not had an opportunity to do, he would see that, in making that determination about whether someone should be released either on conditions or at large, the board takes into account the original nature and seriousness of the offences, the strength of the case that was originally against the person, the continuing risk the person might pose to the community, the safety of the community, the ability to be properly supervised according to conditions, and a range of other factors. The system is not perfect, but it is a very good system. That brings me to the point put by a number of people in serious submissions to me that one of the central features of debate about this system is whether the executive wing of government—that is, the Attorney General of the day—should have the last say in these matters. A serious submission has been put out there that the Mentally Impaired Accused Review Board, or a body like it, stocked full of professionals as it is—psychiatrists and judicial officers—should have the final say in the release back into the community of a person who has been declared unfit to stand trial, and the executive government should not be involved at all. I do not think it is a very wise submission precisely for reasons such as this. I reserve the residual power when a recommendation is made for continuing detention to not observe that recommendation and make a different recommendation to the Governor or, indeed, if a recommendation comes up for conditional release or release at large, to refuse to make the on-recommendation to the Governor. I think the people of Western Australia are better served by having elected members in the executive in charge of that decision. Mr P. Papalia : I agree. Mr C.C. PORTER : The point is interesting, but I do not think critical to the decision at hand, which is: what do we do now when the report comes back from the Mentally Impaired Accused Review Board?
Mr C.C. PORTER : She is who? Mr P. Papalia : The chair. When she assesses it, she gives undue weight to the original charge. She does not consider any of his behaviour since then. You know that’s the case. Mr C.C. PORTER : That is totally incorrect. If the member for Warnbro had ever read one of these reports, which he probably has not had an opportunity to do, he would see that, in making that determination about whether someone should be released either on conditions or at large, the board takes into account the original nature and seriousness of the offences, the strength of the case that was originally against the person, the continuing risk the person might pose to the community, the safety of the community, the ability to be properly supervised according to conditions, and a range of other factors. The system is not perfect, but it is a very good system. That brings me to the point put by a number of people in serious submissions to me that one of the central features of debate about this system is whether the executive wing of government—that is, the Attorney General of the day—should have the last say in these matters. A serious submission has been put out there that the Mentally Impaired Accused Review Board, or a body like it, stocked full of professionals as it is—psychiatrists and judicial officers—should have the final say in the release back into the community of a person who has been declared unfit to stand trial, and the executive government should not be involved at all. I do not think it is a very wise submission precisely for reasons such as this. I reserve the residual power when a recommendation is made for continuing detention to not observe that recommendation and make a different recommendation to the Governor or, indeed, if a recommendation comes up for conditional release or release at large, to refuse to make the on-recommendation to the Governor. I think the people of Western Australia are better served by having elected members in the executive in charge of that decision. Mr P. Papalia : I agree. Mr C.C. PORTER : The point is interesting, but I do not think critical to the decision at hand, which is: what do we do now when the report comes back from the Mentally Impaired Accused Review Board?
Mr P. Papalia : The chair. When she assesses it, she gives undue weight to the original charge. She does not consider any of his behaviour since then. You know that’s the case. Mr C.C. PORTER : That is totally incorrect. If the member for Warnbro had ever read one of these reports, which he probably has not had an opportunity to do, he would see that, in making that determination about whether someone should be released either on conditions or at large, the board takes into account the original nature and seriousness of the offences, the strength of the case that was originally against the person, the continuing risk the person might pose to the community, the safety of the community, the ability to be properly supervised according to conditions, and a range of other factors. The system is not perfect, but it is a very good system. That brings me to the point put by a number of people in serious submissions to me that one of the central features of debate about this system is whether the executive wing of government—that is, the Attorney General of the day—should have the last say in these matters. A serious submission has been put out there that the Mentally Impaired Accused Review Board, or a body like it, stocked full of professionals as it is—psychiatrists and judicial officers—should have the final say in the release back into the community of a person who has been declared unfit to stand trial, and the executive government should not be involved at all. I do not think it is a very wise submission precisely for reasons such as this. I reserve the residual power when a recommendation is made for continuing detention to not observe that recommendation and make a different recommendation to the Governor or, indeed, if a recommendation comes up for conditional release or release at large, to refuse to make the on-recommendation to the Governor. I think the people of Western Australia are better served by having elected members in the executive in charge of that decision. Mr P. Papalia : I agree. Mr C.C. PORTER : The point is interesting, but I do not think critical to the decision at hand, which is: what do we do now when the report comes back from the Mentally Impaired Accused Review Board?
Mr C.C. PORTER : That is totally incorrect. If the member for Warnbro had ever read one of these reports, which he probably has not had an opportunity to do, he would see that, in making that determination about whether someone should be released either on conditions or at large, the board takes into account the original nature and seriousness of the offences, the strength of the case that was originally against the person, the continuing risk the person might pose to the community, the safety of the community, the ability to be properly supervised according to conditions, and a range of other factors. The system is not perfect, but it is a very good system. That brings me to the point put by a number of people in serious submissions to me that one of the central features of debate about this system is whether the executive wing of government—that is, the Attorney General of the day—should have the last say in these matters. A serious submission has been put out there that the Mentally Impaired Accused Review Board, or a body like it, stocked full of professionals as it is—psychiatrists and judicial officers—should have the final say in the release back into the community of a person who has been declared unfit to stand trial, and the executive government should not be involved at all. I do not think it is a very wise submission precisely for reasons such as this. I reserve the residual power when a recommendation is made for continuing detention to not observe that recommendation and make a different recommendation to the Governor or, indeed, if a recommendation comes up for conditional release or release at large, to refuse to make the on-recommendation to the Governor. I think the people of Western Australia are better served by having elected members in the executive in charge of that decision. Mr P. Papalia : I agree. Mr C.C. PORTER : The point is interesting, but I do not think critical to the decision at hand, which is: what do we do now when the report comes back from the Mentally Impaired Accused Review Board?
That brings me to the point put by a number of people in serious submissions to me that one of the central features of debate about this system is whether the executive wing of government—that is, the Attorney General of the day—should have the last say in these matters. A serious submission has been put out there that the Mentally Impaired Accused Review Board, or a body like it, stocked full of professionals as it is—psychiatrists and judicial officers—should have the final say in the release back into the community of a person who has been declared unfit to stand trial, and the executive government should not be involved at all. I do not think it is a very wise submission precisely for reasons such as this. I reserve the residual power when a recommendation is made for continuing detention to not observe that recommendation and make a different recommendation to the Governor or, indeed, if a recommendation comes up for conditional release or release at large, to refuse to make the on-recommendation to the Governor. I think the people of Western Australia are better served by having elected members in the executive in charge of that decision. Mr P. Papalia : I agree. Mr C.C. PORTER : The point is interesting, but I do not think critical to the decision at hand, which is: what do we do now when the report comes back from the Mentally Impaired Accused Review Board?
Mr P. Papalia : I agree. Mr C.C. PORTER : The point is interesting, but I do not think critical to the decision at hand, which is: what do we do now when the report comes back from the Mentally Impaired Accused Review Board?
Mr C.C. PORTER : The point is interesting, but I do not think critical to the decision at hand, which is: what do we do now when the report comes back from the Mentally Impaired Accused Review Board?
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