Maaka-Wanahi v Attorney-General - [2023] NZCA 217

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA143/2023
[2023] NZCA 217

BETWEEN	KINGI DUVAL MAAKA-WANAHI Appellant
AND	ATTORNEY-GENERAL First Respondent TE WHATU ORA \| HEALTH NEW ZEALAND – WAIKATO Second Respondent

Hearing:	25 May 2023
Court:	French, Goddard and Ellis JJ
Counsel:	M S Smith and D T Haradasa for Appellant K Laurenson and I M C A McGlone for First Respondent P N White for Second Respondent L A Anderson KC for Criminal Bar Association
Judgment:	13 June 2023 at 11.00 am

JUDGMENT OF THE COURT

AThe appeal is dismissed.
BThere is no order as to costs.

____________________________________________________________________

REASONS OF THE COURT

(Given by Goddard J)

Introduction

Trial courts are often called on to determine issues relating to the mental health of a defendant, including whether the defendant is unfit to stand trial, whether the defendant is insane for the purposes of s 23 of the Crimes Act 1961, or the type and length of sentence that may be imposed on that defendant. In order to ensure that the court is in a position to make an informed decision about these matters, s 38 of the Criminal Procedure (Mentally Impaired Persons) Act 2003 (the Act) provides that a court may order that a health assessor prepare an assessment report (a s 38 report).[1]
[1]Section 4 of the Criminal Procedure (Mentally Impaired Persons) Act 2003 provides that a health assessor may be a practising psychiatrist, a psychologist, or a specialist assessor under the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003.
The timely provision of s 38 reports is necessary to ensure that people with mental health issues are treated appropriately in the criminal justice system. There has been an increase in awareness of the implications of mental health for defendants in the criminal justice system. As a result, the number of s 38 reports ordered by the courts has increased. But there is a shortage of psychiatrists and psychologists available to prepare s 38 reports. The result has been growing delays in the provision of s 38 reports.
Significant concerns have been expressed about those delays. That has led to an increased focus on who is responsible for the preparation of s 38 reports, and on how those reports are funded. In particular, there has been some uncertainty about the obligations of Te Whatu Ora | Health New Zealand (and its predecessor District Health Boards) where a court makes a s 38 order which (as is often the case) is not addressed to a named health assessor.
In order to resolve some of these uncertainties Te Whatu Ora | Health New Zealand – Waikato (HNZ Waikato) brought proceedings in the High Court seeking declarations to clarify its obligations under the Act where a court makes a s 38 order.
Mr Maaka-Wanahi also brought proceedings in the High Court seeking clarification about the operation of s 38. These issues are of direct concern to him as a defendant in criminal proceedings in respect…

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: [2023] NZCA 217
Decision Date: 13 June 2023 at 11.00 am

CaseChat Overview and Summary

In the case of Maaka-Wanahi v Attorney-General, the appellant, Mr Maaka-Wanahi, challenged the decision of the High Court to deny his application for an order that the respondents provide a report under section 38 of the Mental Health (Compulsory Assessment and Treatment) Act 1992 (NZ) within a specified timeframe. The case was heard by the Court of Appeal of New Zealand, which was tasked with determining the legality of the timeframe within which a mental health assessment report should be provided under the Act.

The primary legal issue before the court was whether section 38 of the Act mandates a specific timeframe for the provision of a mental health assessment report, and if so, what that timeframe should be. The appellant argued that the report should be provided within 14 days of the assessment, extendable to 30 days with the defendant's consent. The Attorney-General, on the other hand, contended that while the reports should be provided promptly, the Act does not impose a specific timeframe for their completion. The court needed to interpret the statutory provisions and legislative intent to resolve this dispute.

The Court of Appeal held that section 38 of the Act does not mandate a particular timeframe for the provision of a mental health assessment report. The court found that the natural meaning of section 38 is that it sets a maximum period of detention for the purpose of obtaining an assessment report, rather than specifying a timeframe for report provision. The court further noted that reading a timeframe into section 38 would be inconsistent with the scheme of the Act and the broader legislative intent to ensure rights-consistent interpretations under the New Zealand Bill of Rights Act 1990. The court concluded that while the reports should be provided promptly, the Act does not impose a specific timeframe for their completion.

The Court of Appeal dismissed the appellant's appeal, affirming that no specific timeframe for report provision is mandated by section 38 of the Act. The court's decision was based on a thorough interpretation of the statutory provisions and legislative intent, ensuring that the Act is applied in a manner consistent with human rights obligations.

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

Mr Smith also referred us to s 19 of the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003 (IDCCR Act), which provides:19Maximum period for needs assessment and preparation of care and rehabilitation plan(1)The process of assessing the needs of a care recipient and preparing his or her care and rehabilitation plan must be completed as quickly as practicable.(2)The process referred to in subsection (1) may not continue for longer than 30 days after the date on which the meeting is held in accordance with section 18. This, Mr Smith said, was a companion piece of legislation to the Act, introduced in the same package of reforms. He submitted that it reflects a parliamentary intention that it is not just the assessment/inquiry but also the subsequent report/plan that needs to be completed quickly and within the timeframe specified in legislation. Mr Smith submitted that the Court should adopt the most rights-maximising interpretation available. Even if it is consistent with s 25(b) of NZBORA to say that s 38 reports should be provided without undue delay or within a reasonable time, if a more rights-consistent approach is available, without doing violence to the text, scheme or legislative intention, then it must be adopted. A more rights-consistent interpretation is available here, by reading the timeframe specified by Parliament in s 38 as the timeframe within which the report must be provided. Finally, Mr Smith referred to a concern that lengthy delays in preparing reports after the assessment of a defendant may mean that the report is out of date, and does not provide an accurate assessment of the defendant’s present state of mind. A further report may be required. Additionally, Mr Smith submitted, anything other than a bright-line standard can lead to postcode justice, which is undesirable. Mr Maaka-Wanahi’s appeal was supported by the Criminal Bar Association (CBA) as an intervenor. The CBA emphasised the importance of completing s 38 reports in an efficient and timely manner. This, Mr Andersen KC submitted, is required by various human rights provisions. In the course of oral argument before us, Mr Andersen submitted that in most cases, where a defendant is already remanded in custody, an assessment report can be directed under s 38(1) without the need to make any order under s 38(2). Where a defendant is on bail, an order under s 38(2)(a) may not be necessary if the person is willing to attend any assessment voluntarily: and in any event, no timeframe is referred to in s 38(2)(a). But, he said, a 14-day mandatory timeframe for preparing an assessment report (extendable to 30 days with the defendant’s consent) applies where an order is made under s 38(2)(b) or (c). Mr Andersen accepted that this would mean that no time limit applied where an order was made under s 38(1) alone, or where the defendant was on bail and a s 38(2)(a) order was made. The Attorney-General submitted that while s 38 reports should be provided promptly, s 38 does not mandate a particular time limit. Ms Laurenson, who appeared for the Attorney-General, submitted that:(a)The natural meaning of s 38 is that it sets a 14-day maximum period of detention. It says nothing about the time within which a report must be provided. Section 40 is also focused on the period of detention.(b)The Act does not elsewhere impose any timeframes for the completion of reports, assessments or evidence by health assessors. Reading a timeframe into s 38 would be strained and inconsistent with the scheme of the Act.(c)Limiting the time of detention for the purpose of obtaining an assessment report is a rights-consistent interpretation under NZBORA. It is not necessary to read in a timeframe for provision of the s 38 report to achieve a rights-consistent interpretation of the Act.