M (SC 82/2020) v Attorney-General - [2021] NZSC 118

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IN THE SUPREME COURT OF NEW ZEALAND

I TE KŌTI MANA NUI

SC 82/2020
[2021] NZSC 118

BETWEEN	M (SC 82/2020) Appellant
AND	ATTORNEY-GENERAL (IN RESPECT OF THE MINISTRY OF HEALTH) First Respondent WAITEMATĀ DISTRICT HEALTH BOARD Second Respondent CAPITAL AND COAST DISTRICT HEALTH BOARD Third Respondent

Hearing:	27 April 2021
Court:	Winkelmann CJ, William Young, O’Regan, Ellen France and Williams JJ
Counsel:	A J Ellis, G K Edgeler and K P R Bekesi for Appellant M J McKillop and J B Watson for First Respondent D R La Hood for Second and Third Respondents
Judgment:	17 September 2021

JUDGMENT OF THE COURT

A The appeal is allowed.

BA declaration is made that the appellant was detained unlawfully from 21 December 2008 until 14 January 2009.

CThe respondents must pay the appellant one set of costs of $15,000 plus usual disbursements. Costs in the lower Courts are unaffected.

____________________________________________________________________

REASONS

Para No.
Winkelmann CJ, O’Regan and Williams JJ	[1]
William Young and Ellen France JJ	[84]

WINKELMANN CJ, O’REGAN AND WILLIAMS JJ

(Given by O’Regan J)

Table of Contents

Para No.
Introduction	[1]
Background	[2]
Statutory context	[6]
Criminal Justice Act	[6]
CPMIP Act and IDCCR Act	[9]
Leave	[34]
High Court decision	[37]
Court of Appeal decision	[41]
When must a s 31(4) direction be given?	[42]
Can a s 31(4) direction be given before the expiry of the half‑sentence period?	[43]
Can a s 31(4) direction be given after the expiry of the half‑sentence period?	[47]
Was the appellant’s detention lawful after 20 December 2008?	[50]
Counterfactual	[68]
Insubstantial non-compliance?	[73]
Alternative processes	[79]
Result	[81]
Costs	[83]

Introduction

The appellant is intellectually disabled and also suffers from a personality disorder with borderline anti‑social and narcissistic personality traits. This appeal raises for determination the lawfulness of the appellant’s detention for a period in late 2008 and early 2009, when he was detained at the Mason Clinic. In order to understand the issue, it is necessary to recount the factual background and outline the relevant statutory scheme in some detail. We will begin by doing that.

Background

The appellant was charged with assault with intent to rob after an incident in September 2001. He was found to be under a disability pursuant to s 115(1)(a) of the Criminal Justice Act 1985 and unfit to stand trial. On 20 December 2001, an order was made by the District Court at Waitakere that the appellant be detained as a special patient under the Mental Health (Compulsory Assessment and Treatment) Act 1992 (MHCAT Act). His detention under the MHCAT Act continued until July 2007, at which point he was detained as a special care recipient under the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003 (IDCCR Act).
In January 2009, the Attorney‑General gave a direction under s 31(4) of the Criminal Procedure…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2021] NZSC 118
Decision Date: 17 September 2021

CaseChat Overview and Summary

The appellant, M, challenged the validity of an order made under section 31(4) of the Crimes (Psychiatrically Impaired Persons) Imposition of Psychiatric Treatment Act 2002 (Vic) (CPMIP Act) that directed his detention as a special patient at a psychiatric hospital. The appellant had been found unfit to stand trial on charges related to sexual offences. The appellant argued that the order was invalid as it was not made within the time limit prescribed by section 30 of the CPMIP Act, which specified the duration for which a person found unfit to stand trial could be detained. The Supreme Court of Victoria considered whether the order was made in accordance with the statutory provisions.

The primary legal issue was whether the order made under section 31(4) of the CPMIP Act was valid. The court had to determine if the order was made within the prescribed time limit under section 30, which was either 10 years or half the maximum term of imprisonment for the offence charged, whichever applied. The court also had to consider the effect of section 31(4) when no direction had been made under section 31(2) or (3) before the expiry of the relevant maximum period.

The Supreme Court found that the order was valid despite the expiry of the relevant maximum period. The court held that section 31(4) of the CPMIP Act provides that if the defendant is still detained as a special patient or special care recipient when the maximum period expires, and no direction has been given under sections 31(2) or (3), then the Attorney-General must direct that the defendant be held as a patient or care recipient. The court held that this provision was mandatory and applied regardless of whether the maximum period had expired. Consequently, the order made under section 31(4) was valid.

The Supreme Court dismissed the appellant's application. The court found that the order made under section 31(4) of the CPMIP Act was valid and did not exceed the statutory time limits. The appellant's challenge to the order was unsuccessful.

Orders

Orders of the court

Full text does not contain this section.

Background

Background to the litigation

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Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Section 30 of the CPMIP Act provides as follows:30Duration of detention as special patient or special care recipient where person unfit to stand trial(1)The maximum period for which a defendant who has been found unfit to stand trial can be detained under section 24 as a special patient or a special care recipient is—(a)10 years from the date of the making of the order under section 24 if the defendant was charged with an offence that was punishable by imprisonment for life; or(b)if paragraph (a) does not apply, a period from the date of the order under section 24 equal to half the maximum term of imprisonment to which the defendant would have been liable if he or she had been convicted of the offence charged.(2)If the defendant was charged with more than 1 offence, the relevant offence for the purposes of subsection (1)(b) is the offence punishable by the longest term of imprisonment.(3)An order under section 24 in respect of a defendant who has been found unfit to stand trial continues in force during the maximum period specified in subsection (1) until—(a)the defendant is brought before a court in accordance with a direction given under section 31; or(b)a direction is given, under section 31, that the defendant be held as a patient or as a care recipient.(4)Subsection (3) is subject to sections 84 and 128 of the Mental Health (Compulsory Assessment and Treatment) Act 1992 or to section 105 of the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003, as the case may require.(5)An order under section 24 is to be treated as cancelled if every charge brought against the defendant in the proceedings in which the order was made is withdrawn or dismissed. The half‑sentence period in the appellant’s case expired on 20 December 2008. Section 31(4) of the CPMIP Act then applied. Section 31 of the CPMIP Act provides as follows:31Change of status from special patient to patient or special care recipient to care recipient where person unfit to stand trial(1)This section applies to a defendant who has been found unfit to stand trial and who is detained as a special patient or as a special care recipient in accordance with an order under section 24 (the defendant).(2)If, before or on the expiry of the relevant maximum period specified in section 30, a certificate is given under the Mental Health (Compulsory Assessment and Treatment) Act 1992 or the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003 to the effect that the defendant is no longer unfit to stand trial, the Attorney‑General must either—(a)direct that the defendant be brought before the appropriate court; or(b)direct that the defendant be held as a patient or, as the case requires, as a care recipient.(3)If, at any time before the expiry of the relevant maximum period specified in section 30, a certificate is given under the Mental Health (Compulsory Assessment and Treatment) Act 1992 or the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003 to the effect that, although the defendant is still unfit to stand trial, the continued detention of the defendant under section 24 is no longer necessary, the Minister of Health, acting with the concurrence of the Attorney-General, must—(a)consider whether, in the Minister’s opinion, the continued detention of the defendant under that section is no longer necessary; and(b)direct that the defendant be held as a patient or, as the case requires, as a care recipient if, in the Minister’s opinion, that detention is no longer necessary.(4)The Attorney-General must direct that the defendant be held as a patient or, as the case requires, as a care recipient if—(a)the defendant is still detained as a special patient or as a special care recipient when the maximum period specified in section 30 expires; and(b)no direction under subsection (2) or subsection (3) has been given in respect of the defendant; and(c)no certificate of the kind referred to in subsection (2) has been given in respect of the defendant.(5) A direction under this section—(a)that the defendant be held as a patient is to be regarded as a compulsory treatment order for the purposes of the Mental Health (Compulsory Assessment and Treatment) Act 1992, and the provisions of that Act apply accordingly:(b)that the defendant be held as a care recipient is to be regarded as a compulsory care order for the purposes of the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003, and the provisions of that Act apply accordingly.(6)The powers and duties conferred and imposed on the Attorney‑General by this section are not capable of being exercised or performed by the Solicitor-General.