Custody Orders

Pursuant to section 3 of the Criminal Law (Mentally Impaired Accused) Regulations 1997, the Registrar of the court is to immediately notify the Board when a Custody Order has been made; and within two working days after the order is made, give to the Board copies of the following documents:

• Custody Order;
• Prosecution notice or indictment;
• Either;
• Statement of facts by prosecutor;
• If there is no statement of facts, a copy of the relevant parts of the transcript of proceedings; or
• If there is no transcript or it will not be available in time, a written summary of the facts prepared by the judicial officer who made the order.
• Criminal record;
• Any pre-sentence report;
• Any other reports considered by court when making the order; and
• Either
• Written reasons for making the custody order;
• If written reasons are not given or they will not be available in time; a copy of the relevant parts of the transcript of proceedings; or
• If there is no transcript or it will not be available in time, a written summary of the reasons prepared by the judicial officer who made the order.

Pursuant to section 25(1) of the Criminal Law (Mentally Impaired Accused) Act 1996 (WA) (the Act), the Board is to review the case within five working days after the custody order is made and determine the place where the accused is to be detained.

Section 24 of the Act requires an accused to be detained in an authorised hospital, a declared place, a detention centre or a prison. However, a mentally impaired accused cannot be detained in an authorised hospital unless the accused has a mental illness that is capable of being treated. Consequently, accused who suffer solely from a cognitive impairment are not suitable for a hospital placement.

Depending on the status of the mental illness, some accused persons may not require treatment and cannot be detained in a hospital. For these accused, the effective custodial option is prison or a declared place. The proclamation of the Declared Places (Mentally Impaired Accused) Act 2015 (WA) paved the way for the first declared place, known as the Disability Justice Centre, in the State of Western Australia. The Declared Places (Mentally Impaired Accused) Act 2015 (WA) falls under the portfolio of the Minister for Disability Services.

The Board regularly engages in discussions with Disability Services to facilitate the placement of accused with an intellectual or cognitive disability in the Disability Justice Centre. Centre residents have high complex support needs, often with a comorbid diagnosis of both an intellectual disability and mental illness.

The Disability Justice Centre benefits a number of accused who are unable to be released into the community because of the risk they pose to themselves or to the community, but who should not be detained in a prison or hospital environment. The Disability Justice Centre provides much needed and consistent support from Disability Services, which ensures the accused has the essential care and support to facilitate their rehabilitation and reintegration into the community.

The Disability Justice Centre employs a range of advanced security measures to safeguard the community and ensure the accused resist serious exploitation.

Last updated: 2-May-2023

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