Police v L HC Masterton M21/2001

[2001] NZHC 1233

ORDER SUPPRESSING PUBLICATION OF THE RESPONDENT’S NAME OR ANY PARTICULARS LEADING TO HIS IDENTITY

IN THE HIGH COURT OF NEW ZEALAND
MASTERTON REGISTRY M21/2001

BETWEEN POLICE
Appellant

AND L
Respondent

Hearing: 11 December 2001
(at Wellington)

Appearances: M A O’Donoghue for appellant
L Elder for respondent

Judgment: 11 December 2001

JUDGMENT OF DOOGUE J

Solicitors:
Crown Solicitor, Wellington, for appellant
Gawith Burridge, Masterton, for respondent

[1] This is an appeal by way of case stated in respect of the discharge of the respondent in respect of all charges following a finding that he was under a disability in terms of s 108 of the Criminal Justice Act 1985 (“the Act”).

[2] The case stated records that that finding was made without any opposition from the appellant. The finding related to some eight informations: five of different varieties of theft, two of being unlawfully in a building, and one of unlawfully getting into a motor vehicle.

[3] Having been satisfied that the respondent was under a disability in terms of s 108 of the Act, the Judge concerned himself, for reasons which are not clear, with the provisions of s 4 of the Mental Health (Compulsory Assessment and Treatment) Act 1992 (“Mental Health Act”). The Judge found that, as the respondent could not be subjected to the provisions for compulsory assessment and treatment under the Mental Health Act, he declined to make any order under the provisions of s 115 of the Act and, more specifically, s 115(1) and s 115(2)(a). Instead he determined that the respondent be discharged from all charges. In the case stated it is said to be in reliance upon the provisions of s 115(2)(b), although in terms of the judgment of the Judge he had specifically put s 115 to one side.

[4] Section 115 of the Act provides:

“115. Order to be made if person under disability or insane

(1) Subject to subsections (2) and (4) of this section, if a person-

(a) Is found to be under disability; or

(b) Is acquitted on account of his or her insanity,-

the court shall make an order that the person be detained in a hospital as a special patient under the Mental Health (Compulsory Assessment and Treatment) Act 1992.

(2) In any case to which subsection (1) of this section applies, the court, having regard to all the circumstances of the case, and being satisfied, after hearing medical evidence, that it would be safe in the interests of the public to make an order under this subsection, may, instead of making an order under subsection (1) of this section,-

(a) Make an order that the person be detained in a hospital as a patient; or

(b) Make an order for the person’s immediate release; or

(c) If the person is liable to be detained under any full-time custodial sentence, decide not to make any order under this section.

(3) In the exercise of its powers under subsection (2) of this section, the court may take into account any undertaking given by or on behalf of the person that the person will undergo or continue to undergo a particular course of treatment.

(4) Where a person is found to be under disability or is acquitted on account of his or her insanity, the court may, instead of exercising immediately any of its powers under subsections (1) and (2) of this section, remand the person to a hospital, for any period not exceeding 7 days, for the purpose of making enquiries to determine the most suitable method of dealing with the case pursuant to this section.”

[5] The case stated poses the following question for the Court:

“The question for the opinion of the Court is whether my decision was erroneous as a matter of law, and, in particular, whether I was entitled to decline to make an order that the defendant be detained in hospital as a special patient under s 115(1) of the Criminal Justice Act 1985 or detained in a hospital as a patient under s 115(2)(a) of the Criminal Justice Act 1985 on the basis that s 4(e) of the Mental Health (Compulsory Assessment and Treatment) Act 1992 applied to preclude the making of a Compulsory Treatment Order and on the basis of the evidence that the defendant did not suffer from a treatable mental illness.”

[6] With all respect to the District Court Judge, the question posted is not one which was of concern to the District Court under the provisions of the Act. If it requires an answer, the answer is clear, namely that the provisions of the Mental Health Act do not preclude the making of a compulsory treatment order under s 115(1) of the Act and, secondly, that the Court was not entitled to take into account the irrelevant consideration that the respondent did not suffer from a treatable mental illness as a basis for declining to make an order under s 115(1) of the Act. This answer is fully in conformity with earlier decisions of the District Court which clearly were not referred to the District Court Judge in this case or he would hardly have acted with a complete disregard for the provisions of s 115 of the Act, which were binding upon him, in the way that he did; see R v T (1993) 9 CRNZ 507; Police v M (No. 2) [1994] DCR 388; and Police v P [1997] DCR 823. Those cases make clear that where a person is found to be under a disability under s 108 of the Act s 115 applies. Under s 115(1) the Court is required to make an order in terms of the subsection detaining the person as a special patient under the Mental Health Act unless the Court is satisfied that the provisions of s 115(2) have been met, in which case the Court may make one of the orders provided for under that subsection.

[7] When the matter is approached in this way, the answer is so clear that it hardly requires this Court to state it when it has been clearly stated by the District Court in the judgments referred to above. The Court can only make an order under s 115(2) of the Act if its provisions apply. It is clear in a case such as the present, where the provisions of the Mental Health Act would not permit the respondent to be detained in a hospital as a patient, that an order could not be made under the provisions of s 115(2)(a). It is equally clear in a case such as the present that the provisions of s 115(2)(c) had no application. The only possible issue for the Judge, which was not directly addressed in his judgment, was whether an order could properly be made under s 115(2)(b). That required the Judge to be satisfied, after hearing medical evidence, that it would be safe in the interests of the public to make an order under the subsection and to make an order for the person’s immediate release. There is no suggestion in the decision under appeal that the Judge was of that opinion. Rather it is clear that he was of the opinion that the respondent could not properly be detained in a hospital because of the provisions of the Mental Health Act and that that was the reason why he declined to make any order in terms of s 115 of the Act. Such a course was clearly wrong. The Judge had no option but to make an order in terms of s 115 of the Act. Unless he felt able to make an order in terms of s 115(2), he was bound to make an order in terms of s 115(1), regardless of any views of the medical witnesses or the provisions of the Mental Health Act which may not have enabled the respondent to otherwise have been detained in a hospital under that Act.

[8] That is enough to dispose of the appeal. The answer to the question stated will be as above in paragraph [6], with two corollaries:

1. That in the circumstances no order could have been made under s 115(2)(a) or (c) of the Act;

2. For an order to have been made in terms of s 115(2)(b) of the Act the Judge would have to have been satisfied, after hearing the medical witnesses, that it was safe in the interests of the public to make an order for the respondent’s immediate release.

[9] Fortunately for the sake of the respondent and of the community the relatives of the respondent, combined with the medical authorities, have made other provision for the appropriate custodial care of the respondent and it is unnecessary for this Court to refer the matter back to the District Court for further consideration of the informations.