Maaka-Wanahi v Attorney-General - [2023] NZHC 187

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CIV-2022-485-215

[2023] NZHC 187

UNDER the Judicial Review Procedure Act 2016: Part 30 of the High Court Rules; the Declaratory Judgments Act 1908; and the Common Law

IN THE MATTER

of an application for judicial review and/or for declaratory judgments

BETWEEN

KINGI DUVAL MAAKA-WANAHI

Applicant

AND

ATTORNEY-GENERAL

First Respondent

TE WHATU ORA – HEALTH NEW ZEALAND – WAIKATO

Second Respondent

CIV-2022-404-186

UNDER

the Declaratory Judgments Act 1908

IN THE MATTER OF

an application for declaratory judgments

BETWEEN

TE WHATA ORA – HEALTH NEW ZEALAND – WAIKATO

Plaintiff/Applicant

Hearing: 7 and 8 November 2022

Counsel:

M S Smith and D T Haradasa for Applicant

K Laurenson and I M McGlone for Attorney-General

P N White for Te Whatu Ora – Health New Zealand – Waikato K Beaton KC and Y Mortimer-Wang for New Zealand Law Society and New Zealand Bar Association

L A Andersen KC for New Zealand Criminal Bar Association

MAAKA-WANAHI v ATTORNEY-GENERAL [2023] NZHC 187 [14 February 2023]

Judgment: 14 February 2023

JUDGMENT OF McQUEEN J

Table of Contents
Para Nos

Introduction [1]

Context of the proceedings [4]

Overview  [5]
The HNZ Waikato perspective  [10]
The experience of Mr Maaka-Wanahi  [24]
Mr Bourke’s general experience  [30]
Evidence for the Attorney-General  [36]
Position of intervenors  [44]

The CPMIP Act [48]

Declarations sought by Mr Maaka-Wanahi [52]

Declarations sought by HNZ Waikato [54]
The issues [56]

In what timeframe must a report ordered pursuant to s 38 of the CPMIP Act be completed? [58]

Submissions [59]
Discussion [76]

Is HNZ Waikato legally obliged to comply with any s 38 order that it receives where the order is addressed to “the health assessor”? Is HNZ Waikato required to locate and commission a health assessor to complete a s 38 report when it receives a s 38 court order addressed to “the health

assessor”? [92]

Is HNZ Waikato legally obliged to comply with an order made pursuant to s 38(2)(c) of the CPMIP Act ordering the detention of a person in

Puawai’s inpatient facility when there has not been prior consultation
as to whether it can properly accommodate such a person? [101]
What is the role of a forensic nurse in the context of s 38 of the
CPMIP Act? [111]

Can fitness to stand trial be determined on the basis of a single report prepared by a health assessor? [116]

Is the Crown responsible for funding s 38 reports irrespective of whether they are provided through the public health system or a private
provider?  [122]
Declarations  [127]
Conclusion  [131]
Costs  [132]

Introduction

[1] Section 38 of the Criminal Procedure (Mentally Impaired Persons) Act 2003 (CPMIP Act) is at the heart of these two proceedings. Section 38 provides a mechanism for obtaining assessment reports from a ‘health assessor’ in relation to a defendant’s mental health when a court considers that such a report is necessary for one of the specified purposes.1 The timely provision of…

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] NZHC 187
Decision Date: 14 February 2023

CaseChat Overview and Summary

The case of Maaka-Wanahi v Attorney-General involved two applications for judicial review and declaratory judgments concerning the Criminal Procedure (Mentally Impaired Persons) Act 2003 (CPMIP Act) in New Zealand. The applicants were Kingi Duval Maaka-Wanahi, a defendant in criminal proceedings, and Te Whatu Ora - Health New Zealand - Waikato (HNZ Waikato), a public health entity responsible for providing forensic mental health services. The Attorney-General was joined as a party in one of the proceedings.

The applicants sought various declarations regarding the obligations of HNZ Waikato in relation to s 38 orders, the timeframe for providing s 38 reports, the role of forensic nurses, the funding of private s 38 reports, and the determination of fitness to stand trial based on a single report. The New Zealand Law Society, New Zealand Bar Association, and New Zealand Criminal Bar Association appeared as intervenors.

The court found that there was no specific timeframe within which s 38 reports must be provided following the making of a s 38 order. Instead, the 14-day and 30-day periods referred to in ss 38(2)(b), (c) and 40 of the CPMIP Act related to the period of detention for the purpose of an assessment and not the period within which a report must be completed. HNZ Waikato was not legally obliged to provide a s 38 report when it received a s 38 order addressed to an unnamed "health assessor," nor was it obliged to locate and commission a health assessor to complete a s 38 report. However, HNZ Waikato was legally obliged to comply with an order made under s 38(2)(c) ordering the detention of a person in Puawai's inpatient facility, provided the requirements in that section had been satisfied.

In deciding whether to make a s 38 order, a judge could consider the opinion of a forensic nurse following their completion of a screening assessment. However, the CPMIP Act did not require that such a screening assessment take place nor that a forensic nurse recommend a report in order for the Court to exercise its power to make a s 38 order. Fitness to stand trial could not be determined on the basis of a single report prepared by a health assessor, and the Crown was responsible for funding s 38 reports irrespective of whether they were provided through the public health system or a private provider.

The court made several declarations, including that HNZ Waikato was not legally obliged to provide a s 38 report when it received a s 38 order addressed to an unnamed "health assessor," and that the 14-day and 30-day periods in ss 38(2)(b), (c) and 40 of the CPMIP Act referred to the period of detention for the purpose of an assessment and not the period within which a report must be completed. The court declined to make certain declarations sought by the applicants and intervenors, including the declaration that the Tauranga model should be adopted nationwide.

The court emphasized the need for the prompt identification and implementation of solutions to the currently unsatisfactory situation in which significant delays were being experienced in the provision of s 38 reports, a matter that required attention from the Executive as a priority.

Orders