IN THE COURT OF APPEAL OF NEW ZEALAND
CA69/05
THE QUEEN
v
NATHAN ERNEST JOHN BARNES
Hearing:15 June 2005
Court:Hammond, Baragwanath and Potter JJ
Counsel:P F Gruar for Appellant
H D M Lawry for Crown
Judgment:16 June 2005
JUDGMENT OF THE COURT
The appeal is allowed to the extent that the orders made under s 34(1)(a)(i) and s 24(2)(a) of the Criminal Procedure (Mentally Impaired Persons) Act 2003 are vacated.
REASONS
(Given by Potter J
Introduction
[1] Nathan Ernest John Barnes appeals against a sentence imposed on him by the High Court on 26 November 2004. In particular he appeals against the order for his indefinite detention as a Special Patient pursuant to s 24(2)(a) of the Criminal Procedure (Mentally Impaired Persons) Act 2003 (“the Act”).
Convictions
[2] The appellant was convicted following trial by jury of one count of wounding with reckless disregard under s 188(2) Crimes Act 1961 (Count 2 in the indictment).
[3] He was found not guilty by reason of insanity on two counts of possession of an offensive weapon under s 202A(4)(b) Crimes Act (Counts 3 and 4 in the indictment).
[4] He entered a guilty plea to one charge of possession of a knife in a public place under s 202A(4)(a) Crimes Act (Count 5 in the indictment).
[5] He was acquitted of a charge of wounding with intent to cause grievous bodily harm.
Sentence
[6] The sentence imposed in the High Court was as follows:
a)On Count 2 a “hybrid” sentence of nine months imprisonment and detention as a Special Patient under s 34(1)(a)(i) of the Act;
b)On Counts 3 and 4 detention as a Special Patient under s 24(2)(a) of the Act.
c)On Count 5 convicted and discharged.
Jurisdiction
[7] At the hearing of the appeal it was agreed by Mr Gruar, counsel for the appellant, and Mr Lawry, counsel for the Crown that:
a)It was not open to the High Court to make an order under s 34(1)(a)(i) because pursuant to s 47(2)(a) of the Act, s 34(1)(a) does not apply to any offence committed before the commencement of the Act. The Act came into force on 1 September 2004. The relevant offending by the appellant occurred on 11 October 2003.
b)It was not open to the High Court to make an order under s 24(2)(a) because the medical certificate furnished in response to the request of the High Court Judge for a report pursuant to ss 23 and 35 of the Act, did not on its face establish that detention of the appellant in accordance with s 24(2)(a) was necessary.
[8] Section 24 of the Act provides:
Detention of defendant found unfit to stand trial or insane as special patient or special care recipient
(1)When the court has sufficient information on the condition of a defendant found unfit to stand trial or acquitted on account of his or her insanity, the court must-
(a)consider all the circumstances of the case; and
(b)consider the evidence of one or more health assessors…
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- AGLC
- Barnes v The Queen [2005] NZCA 155
- Case
- [2005] NZCA 155
- Decision Date
CaseChat Overview and Summary
The legal issues before the Court were whether the High Court had the jurisdiction to make an order under section 34(1)(a)(i) and section 24(2)(a) of the Act. It was argued that the relevant offending by Barnes occurred before the Act came into force, and therefore, section 34(1)(a) did not apply. Additionally, it was contended that the medical certificate provided did not establish that detention of Barnes in accordance with section 24(2)(a) was necessary.
The Court found that the High Court did not have the jurisdiction to make an order under section 34(1)(a)(i) as the relevant offending by Barnes occurred before the Act came into force. The Court also found that the High Court did not have the jurisdiction to make an order under section 24(2)(a) because the medical certificate did not establish on its face that detention of Barnes was necessary. The Court held that a high degree of care must be exercised to ensure that the facts of the case are within the strict boundaries defined by the Act, and that the imposition of an order under section 24 could not be viewed as a proportional response to the charges of possession of an offensive weapon.
The Court allowed the appeal to the extent that the orders made under section 34(1)(a)(i) and section 24(2)(a) of the Act were vacated. The Court found that there was no basis for increasing the sentence of nine months imprisonment, which Barnes had already served. The Court also urged that steps be taken to ensure the assessment and appropriate disposition of Barnes under the Mental Health regime.
In conclusion, the Court vacated the orders made under section 34(1)(a)(i) and section 24(2)(a) of the Act and allowed the appeal. The Court found that the High Court lacked jurisdiction to make such orders and that the imposition of an order under section 24 could not be viewed as a proportional response to the charges of possession of an offensive weapon. The Court urged that steps be taken to ensure the assessment and appropriate disposition of Barnes under the Mental Health regime.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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