This Act comes into force on a date to be appointed by the Governor-General by Order in Council.
(2)
Despite subsection (1), if the date appointed under that subsection is prior to the commencement of section 4A of the Criminal Investigations (Bodily Samples) Act 1995, section 50 comes into force on that commencement.
Section 2(1): Criminal Procedure (Mentally Impaired Persons) Act 2003 brought into force, on 1 September 2004, by the Criminal Procedure (Mentally Impaired Persons) Act Commencement Order 2004 (SR 2004/147).
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Purpose
The purpose of this Act is to restate the law formerly set out in Part 7 of the Criminal Justice Act 1985 and to make a number of changes to that law, including changes to—
(a)
provide the courts with appropriate options for the detention, assessment, and care of defendants and offenders with an intellectual disability:
(b)
provide that a defendant may not be found unfit to stand trial for an offence unless the evidence against the defendant is sufficient to establish that the defendant caused the act or omission that forms the basis of the offence:
(c)
provide for a number of related matters.
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Interpretation
(1)
In this Act, unless the context otherwise requires,—
acquittal on account of insanity includes a dismissal of an information by a District Court on account of the insanity of the person charged
care recipient has the same meaning as that given to the expression care recipient no longer subject to the criminal justice system in the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003
compulsory care order has the same meaning as in the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003
compulsory treatment order means a compulsory treatment order made under Part 2 of the Mental Health (Compulsory Assessment and Treatment) Act 1992
co-ordinator means a compulsory care co-ordinator appointed under the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003
counsel, in relation to a person, means a barrister and solicitor of the High Court of New Zealand who is representing the person in proceedings
court means any court exercising jurisdiction in criminal proceedings
facility and secure facility have the same meanings as in the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003
guardian includes a welfare guardian appointed under section 12 of the Protection of Personal and Property Rights Act 1988
health assessor means—
(a)
a practising psychiatrist who is registered as a medical practitioner; or
(b)
a psychologist; or
(c)
a specialist assessor under the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003
hospital means a hospital within the meaning of the Mental Health (Compulsory Assessment and Treatment) Act 1992
imprisonable offence means any offence punishable by imprisonment, regardless of any restriction imposed by an enactment on the jurisdiction or power of the court dealing with a particular case
intellectual disability has the same meaning as in the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003
medical practitioner means a health practitioner who is, or is deemed to be, registered with the Medical Council of New Zealand continued by section 114(1)(a) of the Health Practitioners Competence Assurance Act 2003 as a practitioner of the profession of medicine
psychologist means a health practitioner who is, or is deemed to be, registered with the Psychologists Board continued by section 114(1)(a) of the Health Practitioners Competence Assurance Act 2003 as a practitioner of the profession of psychology
special care recipient has the same meaning as in the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003
unfit to stand trial, in relation to a defendant,—
(a)
means a defendant who is unable, due to mental impairment, to conduct a defence or to instruct counsel to do so; and
(b)
includes a defendant who, due to mental impairment, is unable—
(i)
to plead:
(ii)
to adequately understand the nature or purpose or possible consequences of the proceedings:
(iii)
to communicate adequately with counsel for the purposes of conducting a defence.
(2)
If this Act comes into force before the commencement of section 114(1) of the Health Practitioners Competence Assurance Act 2003, then, until that commencement, subsection (1) must be read as if, for the definitions of medical practitioner and psychologist, there were substituted the following definitions:
“medical practitioner means a medical practitioner registered under the Medical Practitioners Act 1995
“psychologist means a psychologist registered under the Psychologists Act 1981”.
Compare: 1985 No 120 ss 2(1), (2), 108
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Application
(1)
This Act applies only to criminal proceedings in which a defendant is charged with an imprisonable offence.
(2)
This Act does not apply to proceedings under the Armed Forces Discipline Act 1971, or to proceedings on appeal from any decision under that Act.
When finding of unfitness to stand trial may be made
(1)
A court may make a finding under this subpart that a defendant is unfit to stand trial at any stage after the commencement of the proceedings and until all the evidence is concluded.
(2)
Subsection (1) is subject to section 9.
Compare: 1985 No 120 s 109
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Postponement of finding
(1)
A court may, if it thinks it is in the interests of the defendant to do so, postpone the determination of the question whether a defendant is unfit to stand trial.
(2)
However, at a hearing or trial, a court may not postpone the determination of that question beyond the stage at which all the evidence is concluded.
(3)
When a court postpones the determination of the question whether a defendant is unfit to stand trial, the court may not determine the question if—
(a)
the defendant is acquitted; or
(b)
the information against the defendant is dismissed.
Compare: 1985 No 120 s 110
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Court must be satisfied of defendant's involvement in offence
A court may not make a finding as to whether a defendant is unfit to stand trial unless the court is satisfied, on the balance of probabilities, that the evidence against the defendant is sufficient to establish that the defendant caused the act or omission that forms the basis of the offence with which the defendant is charged.
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Inquiry at summary hearing into defendant's involvement
(1)
This section applies if a defendant is proceeded against summarily.
(2)
If the question whether the defendant is unfit to stand trial is to be determined before the hearing of the information, the court must hold a special hearing to ascertain whether the court is satisfied of the matter specified in section 9.
(3)
The provisions of Part 5 of the Summary Proceedings Act 1957 that relate to the conduct of a committal hearing, so far as they are applicable and with any modifications, apply to every hearing held under subsection (2).
(4)
If the question whether the defendant is unfit to stand trial is to be determined in the course of the hearing, the court must ascertain whether it is satisfied of the matter specified in section 9.
(5)
For the purpose of subsection (4), the court may (whether on the application of a party or on the court's own initiative) do either or both of the following:
(a)
consider any evidence presented at the hearing:
(b)
hear any new evidence.
Section 10(3): substituted, on 29 June 2009, by section 18 of the Summary Proceedings Amendment Act (No 2) 2008 (2008 No 41).
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Inquiry into defendant's involvement if committal proceedings required
(1)
This section applies if committal hearings under Part 5 of the Summary Proceedings Act 1957 are required.
(2)
If the question whether the defendant is unfit to stand trial is to be determined before or without a committal hearing, the court must hold a special hearing to ascertain whether the court is satisfied of the matter specified in section 9.
(3)
The provisions of Part 5 of the Summary Proceedings Act 1957 that relate to committal hearings, so far as they are applicable and with any necessary modifications, apply to every hearing held under subsection (2).
(4)
A hearing held under subsection (2) takes the place of a committal hearing under Part 5 of the Summary Proceedings Act 1957.
(5)
If the question whether the defendant is unfit to stand trial is to be determined in the course of a committal hearing, the court must ascertain whether it is satisfied of the matter specified in section 9.
(6)
For the purpose of subsection (5), the court may (whether on the application of the party or on the court's own initiative) do either or both of the following:
(a)
consider any evidence presented at the committal hearing:
(b)
hear any new evidence.
(7)
A District Court Judge must preside over a court that conducts a special hearing under subsection (2) or determines whether the defendant is unfit to stand trial in the course of a committal hearing.
Section 11: substituted, on 29 June 2009, by section 18 of the Summary Proceedings Amendment Act (No 2) 2008 (2008 No 41).
If the question whether the defendant is unfit to stand trial is to be determined in the course of a trial, the court must ascertain whether it is satisfied of the matter specified in section 9.
(2)
For the purpose of subsection (1), the court may (whether on the application of a party or on the court's own initiative) do 1 or more of the following:
(a)
consider any evidence presented for the purposes of the standard committal or at the committal hearing or at the trial:
(b)
rehear any of the evidence presented for the purposes of the standard committal or of the committal hearing:
(c)
hear any new evidence at any stage before the commencement of the closing addresses.
Section 12(2)(a): amended, on 29 June 2009, by section 18 of the Summary Proceedings Amendment Act (No 2) 2008 (2008 No 41).
Section 12(2)(b): amended, on 29 June 2009, pursuant to section 18 of the Summary Proceedings Amendment Act (No 2) 2008 (2008 No 41).
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Outcome of consideration of defendant's involvement
(1)
When the court has ascertained, in accordance with any of sections 10 to 12, whether the court is satisfied of the matter specified in section 9, the court must record its finding on the matter.
(2)
If the court is not satisfied of the matter specified in section 9, the court must discharge the defendant.
(3)
A discharge under subsection (2) does not amount to an acquittal.
(4)
If the court is satisfied of the matter specified in section 9, the court must proceed to determine the matters specified in section 14.
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Determining if defendant unfit to stand trial
(1)
If the court records a finding of the kind specified in section 13(4), the court must receive the evidence of 2 health assessors as to whether the defendant is mentally impaired.
(2)
If the court is satisfied on the evidence given under subsection (1) that the defendant is mentally impaired, the court must record a finding to that effect and—
(a)
give each party an opportunity to be heard and to present evidence as to whether the defendant is unfit to stand trial; and
(b)
find whether or not the defendant is unfit to stand trial; and
(c)
record the finding made under paragraph (b).
(3)
The standard of proof required for a finding under subsection (2) is the balance of probabilities.
(4)
If the court records a finding under subsection (2) that the defendant is fit to stand trial, the court must commence or continue the hearing or trial, or commit the defendant for trial, as the case may require.
Compare: 1985 No 120 s 111(1), (2)
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Jurisdiction may be exercised in absence of defendant
The jurisdiction under any of sections 10 to 14 may be exercised in the absence of the defendant if the court is satisfied that the defendant is too mentally impaired to come to court.
Compare: 1985 No 120 s 111(3)
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Appeal by defendant against finding relating to fitness to stand trial
(1)
A defendant about whom a finding under section 14(2)(b) has been made may appeal against one or both of the following findings:
(a)
that the evidence against the defendant is sufficient to establish that the defendant caused the act or omission that forms the basis of the offence with which the defendant is charged:
(b)
that the defendant is unfit to stand trial or, as the case may be, fit to stand trial.
(2)
For the purposes of an appeal under this section,—
(a)
the finding appealed against is to be regarded as a conviction; and
(b)
the provisions of the Crimes Act 1961 or the Summary Proceedings Act 1957 relating to appeals against conviction, so far as they are applicable and with any necessary modifications, apply to the appeal.
If, on an appeal under section 16, the court is satisfied that the evidence against the defendant is not sufficient to establish that the appellant caused the act or omission that forms the basis of the offence with which the appellant is charged, the court must quash the finding appealed against and direct that the appellant be discharged.
(2)
A discharge under subsection (1) does not amount to an acquittal.
(3)
In the case of an appeal against a finding relating to the appellant's fitness to stand trial, the court must (except where the appellant has been discharged under subsection (1)) consider the evidence of 2 health assessors, and confirm or quash the finding relating to the appellant's mental impairment.
(4)
If the court is satisfied that the appellant is mentally impaired, the court must—
(a)
give the appellant and the respondent an opportunity to be heard and to present evidence as to whether the appellant is unfit to stand trial; and
(b)
confirm or quash the finding relating to the appellant's fitness to stand trial.
(5)
If the result of the appeal is that the appellant is fit to stand trial, the court must remit the case to the High Court or the District Court, as the case may require.
Compare: 1985 No 120 s 112(2)–(4)
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Release on bail or detention of appellant pending appeal
(1)
An appellant under section 16 in respect of whom an order of detention has been made under any of sections 23, 24, and 25 may be granted bail in the same manner as if he or she had been convicted and sentenced to imprisonment.
(2)
If the appellant is not released on bail, the appellant must be detained in accordance with the order of detention while his or her appeal is pending.
(3)
A Judge of the High Court, or the District Court Judge who presided over the court whose decision is appealed against, may make any other order that may be thought fit for the custody of the appellant if the appellant is not released on bail while his or her appeal is pending.
Compare: 1985 No 120 s 112(5)–(7)
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Appeals by prosecution
(1)
The prosecution may appeal on a question of law against 1 or more of the following findings under this subpart:
(a)
that the evidence against the defendant is not sufficient to establish that the defendant caused the act or omission that forms the basis of the offence with which the defendant is charged:
(b)
that the defendant is mentally impaired:
(c)
that the defendant is unfit to stand trial.
(2)
The provisions of the Crimes Act 1961 and the Summary Proceedings Act 1957 relating to appeals, so far as they are applicable and with any necessary modifications, apply to an appeal under subsection (1).
If, at a hearing or trial, the defendant gives evidence as to his or her insanity and the jury or (if there is no jury) the Judge finds the defendant not guilty on account of his or her insanity, the Judge must record that finding.
(2)
Before or at a hearing or trial, the Judge must record a finding that the defendant is not guilty on account of his or her insanity if—
(a)
the defendant indicates that he or she intends to raise the defence of insanity; and
(b)
the prosecution agrees that the only reasonable verdict is not guilty on account of insanity; and
(c)
the Judge is satisfied, on the basis of expert evidence, that the defendant was insane within the meaning of section 23 of the Crimes Act 1961 at the time of the commission of the offence.
(3)
If, at a trial before a jury, the defendant gives evidence as to his or her insanity and the jury finds the defendant not guilty, the Judge must ask the jury whether or not it has acquitted the defendant on account of his or her insanity.
(4)
In a case where it appears from the evidence that the defendant may have been insane at the time of the commission of the offence, the Judge may ask the jury to find whether the defendant was insane within the meaning of section 23 of the Crimes Act 1961, even though the defendant has not given evidence as to his or her insanity or put the question of his or her sanity in issue.
