Police v MW
[2023] NZHC 3669
•13 December 2023
NOTE: NO PUBLICATION OF A REPORT OF THIS PROCEEDING IS PERMITTED UNDER S 438 OF THE ORANGA TAMARIKI ACT 1989, EXCEPT WITH THE LEAVE OF THE COURT THAT HEARD THE
PROCEEDINGS, AND WITH THE EXCEPTION OF PUBLICATIONS OF A BONA FIDE PROFESSIONAL OR TECHNICAL NATURE. NO
PUBLICATION MAY INCLUDE THE NAME OR IDENTIFYING PARTICULARS OF ANY CHILD OR YOUNG PERSON, OR THE PARENTS OR GUARDIANS OR ANY PERSON HAVING THE CARE OF THE CHILD OR YOUNG PERSON, OR THE SCHOOL THAT THE CHILD OR YOUNG PERSON WAS OR IS ATTENDING, OR THE NAME OF ANY
COMPLAINANT. SEE
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2023-404-461
[2023] NZHC 3669
BETWEEN NEW ZEALAND POLICE
Appellant
AND
MW
Respondent
Hearing: 28 November 2023 Appearances:
Z R Johnston for Appellant C J A Leys for Respondent
S P Jerebine as Counsel assisting the Court
Judgment:
13 December 2023
JUDGMENT OF O’GORMAN J
This judgment was delivered by me on 13 December 2023 at 3.30 pm pursuant to r 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Solicitors/Counsel:
Crown Law Office, Wellington C J A Leys, Barrister, Auckland S P Jerebine, Barrister, Auckland
NEW ZEALAND POLICE v MW [2023] NZHC 3669 [13 December 2023]
[1] This is an appeal on a question of law pursuant to s 354(2) of the Oranga Tamariki Act 1989 (the OT Act). In a reserved judgment issued on 8 August 2023, Judge E B Parsons found that the Criminal Procedure (Mentally Impaired Persons) Act 2003 (the CPMIP Act) does not apply for proceedings before the Youth Court, other than s 333(2)(a) of the OT Act cross-referring to the CPMIP Act definition of when someone is unfit to stand trial.1
[2] The issues were originally framed as questions of law under s 93 of the District Court Act 2016 by the Judge:
[202] Due to the lack of clarity as to the processes to be applied in assessing young people’s fitness to stand trial in the Youth Court, the following questions of law are now stated to the High Court:
In relation to a young person appearing in the Youth Court, where the issue of
fitness to stand trial has been raised:
(a) Does the CPMIP apply to Youth Court proceedings?
(i)Related to (a) above, does the s 4 CPMIP definition of court, meaning “any court exercising jurisdiction in criminal proceedings” apply to the Youth Court (i.e., does the CPMIP apply to Youth Court proceedings beyond the s 4 meaning)?
(ii)If CPMIP does apply, is it in part or in whole?
(b) Do the distinctive criminal jurisdictions conferred upon each of the District Court (s 9 CPA) and upon the specialist Youth Court (as a division of the District Court (ss 272, 321 and Schedule 1 OTA)), have significance in terms of this analysis?
(c) Noting s 185 OTA, does the Youth Court possess a discretion to choose between directing either a s 333 OTA report/s and/or a s 38 CPMIP report(s) (for assessing fitness to stand trial specifically)?
(i)If not, does it matter if s 38 CPMIP reports have been directed and received instead of s 333 report(s)?
(ii)If yes, are there criteria for assessing which report to direct?
(d)In the event CPMIP does not apply to Youth Court proceedings, and a young person is found unfit to stand trial, are the outcomes available limited to consideration of s 282 OTA discharge and referral back to the Family Court under s 280, (s 19) and s 281B OTA referral or upon reliance on existing care and protection proceedings?
(Footnote omitted.)
1 New Zealand Police v MNW [2023] NZYC 572 at [188].
Position of the parties
[3] As this proceeding concerns an issue of statutory interpretation, the factual circumstances of the case in which it arose are irrelevant. No reference is made to those matters, so no suppression orders are necessary in respect of the content of this judgment,2 and I grant leave for publication in respect of it.
[4] Counsel for both the appellant and the respondent respectively submit that the CPMIP Act applies to criminal charges before the Youth Court. Ms Jerebine has been appointed to assist the Court and identify any contrary arguments.
[5]Counsel for the appellant, New Zealand Police, argues the following:
(a)Under s 5 of the CPMIP Act, that statute applies to “criminal proceedings in which a defendant is charged with an imprisonable offence”. Proceedings in the Youth Court under pt 4 of the OT Act are plainly criminal proceedings and so qualify. While most young people cannot ultimately receive sentences of imprisonment,3 the offences they face are nevertheless imprisonable. Other legislation, such as the Crimes Act 1961 and the Evidence Act 2006, applies within the Youth Court jurisdiction even though it is not expressly referred to in sch 1 of the OT Act.
(b)Parliament expressly carved out proceedings brought under the Armed Forces Discipline Act 1971 but did not expressly exclude the application of the CPMIP Act for the Youth Court.
(c)There are indications in the text of the legislation that the CPMIP Act applies to the Youth Court:
2 Section 438 of the OT Act has a general prohibition on reports of proceedings under pt 4. Section 438(3) continues to prohibit any publication of identifying details of the young respondent.
3 Section 283 OT Act outcomes do not include imprisonment as a response option. A sentence of imprisonment is only possible if a young person is transferred to the District Court and has committed a serious offence in terms of s 18 of the Sentencing Act 2002, being one punishable by more than 14 years’ imprisonment.
(i)there is an express reference in s 333(2)(a) of the OT Act concerning empowering the Youth Court to order a report to determine whether the young person is unfit to stand trial within the meaning of s 4 of the CPMIP Act;
(ii)s 185 of the OT Act expressly excludes the application of ss 38-44 of the CPMIP Act, but not other provisions of the Act; and
(iii)the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003 contains principles governing decisions affecting children and young persons. The only entry pathway to that Act is through the CPMIP Act.
[6] Counsel submits that the converse interpretation as found by Judge Parsons does not best serve the purposes of the OT Act where there is a potentially unfit young person before the Youth Court. In particular:
(a)If a young person is found unfit in terms of a report ordered under s 333(2)(a), then no involvement hearing could occur, so the sufficiency of the evidence underpinning the charge would be untested.
(b)As the alleged offending has not been proved, there would be no outcome to the criminal charge available under s 283 of the OT Act. This would mean that the only available option would be to discharge the charge under s 282, in which case the charge is deemed never to have been filed. Alternatively, if it appears to the Court that the young person may be in need of care and protection under pt 2, it may make a care and protection referral under ss 14, 19 and 280 of the OT Act. However, this could not include a prison or a secure hospital4 (because these are excluded in the definition of “residence”).
4 A hospital or a facility within the meaning of the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2002.
[7] Counsel for the respondent also takes the position that Youth Court proceedings are criminal proceedings to which the CPMIP Act applies. It is in the best interests of a young person that there is a well-defined statutory process to deal with issues of fitness. The difficulty with an alternative interpretation is that there is no provision in the OT Act setting out a process for determining the involvement of a young person unfit to stand trial or achieving a satisfactory disposition of the matter.
[8] Ms Jerebine submits that the Youth Court cannot order a report under s 38 of the CPMIP Act, and s 38 is the gateway to the substantive processes under ss 8A and 10–12 of the CPMIP Act. Furthermore, the remedies available under s 24 of the CPMIP Act are inconsistent with the outcomes available under the OT Act. If the CPMIP Act does not apply, it is arguable that the Youth Court can fashion its own procedures to assess whether the charge is proved, and then determine an appropriate outcome using s 283 of the OT Act. Otherwise, the care and protection options under pt 2 of the OT Act remain available. Ms Jerebine emphasised the inconsistency of potentially subjecting young people to detention in prisons or secure hospitals, when those outcomes are not available (because they are expressly prohibited) for young people who are fit to stand trial and have charges proved against them in the Youth Court.
Legislative background
[9] The CPMIP Act began its life as the Criminal Justice Amendment Bill (No 7),5 intended to reform pt 7 of the Criminal Justice Act 1985. It was later renamed the Criminal Procedure (Mentally Impaired Persons) Bill6 and had its third reading on 21 October 2003. The changes were summarised as follows:7
If a defendant is found to be unfit to stand trial, he or she will be made subject to either an order for compulsory care if intellectually disabled, as provided for in the accompanying Intellectual Disability (Compulsory Care) Bill, or compulsory treatment in the case of those with mental illnesses, as provided for under the Mental Health (Compulsory Assessment and Treatment) Act.
5 Criminal Justice Amendment Bill 1999 (No 7) 328-1. This bill was introduced and had its first and second reading on 5 October 1999, along with the Intellectual Disability (Compulsory Care) Bill 1999 329-1.
6 Criminal Procedure (Mentally Impaired Persons) Bill 1999 328-2.
7 (21 October 2003) 612 NZPD 9318 per Marc Alexander (United Future).
But in order to balance that desire to ensure appropriateness of care and attention, the threshold for determining whether the accused is physically guilty of the crime is somewhat lower than normal. It is based on the balance of probabilities rather than on the absence of reasonable doubt.
[10] The Explanatory Note of the Intellectual Disability (Compulsory Care) Bill explained the relationship between the two bills and the lacuna they were intended to address:8
Persons with an intellectual disability were included in the definition of “mental disorder” in the Mental Health Act 1969, which was later linked to the Criminal Justice Act 1985. However, the Mental Health (Compulsory Assessment and Treatment) Act 1992 deliberately excluded persons with an intellectual disability (unless they also have a mental disorder). This is because intellectual disability is now seen as a learning disability that results in substantial limitations in functioning. Unlike a mental illness, it cannot be treated. It is therefore inappropriate for persons with an intellectual disability to be subject to an order requiring them to undertake treatment.
This exclusion created a legislative gap, for the offender group, between the Mental Health (Compulsory Assessment and Treatment) Act 1992 and Part VII of the Criminal Justice Act 1985, resulting in limited options being available to the courts for dealing with persons with an intellectual disability who are charged with or convicted of an imprisonable offence. This has sometimes resulted in inappropriate placement in prison, mental health services, or discharge into the community. This Bill links with the Criminal Justice Amendment Bill (No. 7) to enable criminal courts to impose appropriate orders for people with an intellectual disability.
…
The Bill also applies to children and young persons who meet the criteria for intellectual disability and require long-term compulsory care because of behaviour which poses a serious danger to the health or safety of the child or young person or of others, if that behaviour cannot be managed without relying on the Bill. Currently, persons with an intellectual disability under the age of 17 years are subject to the Children, Young Persons, and Their Families Act 1989. The Children, Young Persons, and Their Families Agency has limited options for providing appropriate services for children and young persons with an intellectual disability and whose behaviour poses a serious risk of danger to themselves or others. Currently, a small number (approximately 5) of such children and young persons are inappropriately placed in Department of Social Welfare residences with others who do not have an intellectual disability. This mix can exacerbate behaviour problems for both groups. Children and young persons with an intellectual disability who are in need of compulsory care are more likely to respond to specialist services tailored to their particular needs.
8 Intellectual Disability (Compulsory Care) Bill 1999 329-1 at ii–iii.
[11]As enacted,9 s 9 of the CPMIP Act provided as follows:
A court may not make a finding as to whether a defendant is unfit to stand trial unless the court is satisfied, on the balance of probabilities, that the evidence against the defendant is sufficient to establish that the defendant caused the act or omission that forms the basis of the offence with which the defendant is charged.
[12] The reason for this provision was outlined in the Explanatory Note of the original bill:10
The new Part 7 includes procedural safeguards for persons found to be unfit to stand trial. The essence of being unfit to stand trial is that the person is unable to conduct a defence or instruct counsel to do so on their behalf. It has always been regarded as unfair to try people who are in this situation. However, there is currently no provision in the law for a procedure to establish that a person detained after being found to be unfit to stand trial was in fact physically responsible for the act or omission that forms the basis of the offence that they were alleged to have committed.
Under the Bill, the court must be satisfied on the balance of probabilities that the evidence presented is sufficient to establish that the defendant caused the act or omission that forms the basis of the offence with which the defendant has been charged before considering whether or not the defendant is mentally impaired and, if so, whether or not he or she is unfit to stand trial. All of these matters must be determined by the court prior to a finding of unfitness to stand trial being entered.
[13] The separation of a finding of fitness to stand trial, followed by an “involvement hearing”, originated during the criminal procedure reforms that resulted in the Criminal Procedure Act 2011 (the CPA). Recommendation 105 of a departmental report suggested the “involvement hearing” concept.11
9 It received assent on 30 October 2003 and came into force by Order in Council on 1 September 2004 as the Criminal Procedure (Mentally Impaired Persons) Act 2003.
10 Criminal Justice Amendment Bill (No 7) 328-1 at [2(c)].
11 Ministry of Justice and New Zealand Law Commission Departmental Report for the Justice and Electoral Committee: Criminal Procedure (Reform and Modernisation) Bill (16 May 2011) at 24 and 258.
[14] Throughout the 2011 reforms, it continued to be clear that the CPMIP Act could be applied to young people in appropriate circumstances, consistent with s 174 being included when the CPA was enacted in 2011.12 Section 174 of the CPA currently provides:
174 Remand of defendant under 18 years for assessment report
(1) Any court may remand a defendant who is under 18 years in the custody of the chief executive of the department for the time being responsible for the administration of the Oranga Tamariki Act 1989 for the purposes of an assessment report under section 38 of the Criminal Procedure (Mentally Impaired Persons) Act 2003 if—
(a)the court is satisfied that the chief executive is able and willing to keep the defendant in custody for the purpose of the assessment report for any period, not exceeding 14 days, that the court thinks fit; and
(b)the court would (in the absence of section 171 or 172 or 175) have remanded the defendant to a prison in accordance with section 38(2)(b) of the Criminal Procedure (Mentally Impaired Persons) Act 2003 for the purposes of the assessment report.
(2) If, in any case to which section 38(1) of the Criminal Procedure (Mentally Impaired Persons) Act 2003 applies, the defendant is under the age of 18 years, the provisions of section 38(2)(c) to (4) and sections 40 to 44 of that Act must be read as if—
(a)any reference to remand to a prison were a reference to remand to the custody of the chief executive; and
(b)any reference to the manager of a prison were a reference to the chief executive; and
(c)any reference to penal custody were a reference to the custody of the chief executive.
(3) If a person is remanded in the custody of the chief executive under subsection (1), that person may, until he or she is brought up for hearing or sentence, be placed in any residence under the Oranga Tamariki Act 1989, or under the care of any suitable person pursuant to that Act.
12 This was cl 181 in the Criminal Procedure (Reform and Modernisation) Bill 2010 243-1, referred to in the Departmental Report, above n 11, at [858]. It remained cl 181 in the Criminal Procedure (Reform and Modernisation) Bill 243-2 (14 July 2011) and in the Criminal Procedure Bill 243-3A (29 September 2011).
[15] As addressed further below, the legislature has focused on adaptations for how a compulsory health assessment should be conducted in respect of youth in various circumstances. There has been no suggestion in the legislative background that the substantive provisions of the CPMIP Act were not intended to apply to youth.
Analysis
OT Act principles
[16] Set out in the Appendix to this judgment is a high-level overview of the structure of the two principal Acts in question in this proceeding — the OT Act and the CPMIP Act. Before examining the way in which provisions of the two statutes interrelate, it is important to consider the overall context of what the different parts of the statutes are seeking to achieve.
[17] The OT Act is divided into 11 parts. Part 1 contains the purposes, principles, and duties of broad application. As shown in the diagram in the Appendix, ss 4A and 5 are particularly relevant in this case. Section 5 sets out the principles to be applied in the exercise of powers under the OT Act. The principles emphasise the importance of encouraging and assisting children and young persons to participate and express their views, and the fact that the wellbeing of a child or young person must be at the centre of any decision-making that affects that child or young person. The principles also recognise the child or young person’s place within their family, whānau, hapū, iwi and community.
[18] Section 4A was added on 1 July 2019. It distinguishes between matters determined under pts 4 and 5, as opposed to under other parts. Accordingly, s 4A(1) applies for any determinations made under pt 2 concerning care and protection. The paramount consideration for those matters is the best interests of the child or young person, having regard to the principles set out in ss 5 and 13.
[19] In contrast, s 4A(2) recognises that more complexity arises with matters determined under pt 4, dealing with criminal offending by young persons. In those circumstances, there are four primary considerations (to be considered along with the principles set out in ss 5 and 208):
(a)the wellbeing and best interests of the child or young person;
(b)the public interest (which includes public safety);
(c)the interests of any victims; and
(d)the accountability of the child or the young person for their behaviour.
Part 2 of the OT Act
[20] The Family Court administers pt 2 of the OT Act, providing for the care and protection of children and young persons. This jurisdiction is civil in nature, reflected in s 197 providing that the standard of proof is civil.
[21] The Family Court is a division of the District Court, constituted under s 9(c) of the District Court Act, and s 11 of the Family Court Act 1980. In addition to the definition of “court” in s 2, s 150 reinforces that (subject to ss 151 and 341) all proceedings under pt 2 are heard by the Family Court.
[22] The principles in s 13 emphasise (among other things) the desirability of providing early support and services to improve the safety and wellbeing of a child or young person at risk of harm, to reduce the risk of future harm to the child or young person (including the risk of reoffending) and reducing the risk that a parent may be unable or unwilling to care for the child or young person. The principles also emphasise the importance of strengthening and supporting the child or young person’s family, whānau, hapū, iwi and family group connections where possible, including seeking to make decisions on a consensual or collaborative basis.
[23] Section 14 defines when a child or young person is categorised as “in need of care or protection”. The powers to remove a child or young person are contained in ss 39–42 of the OT Act. These include the power to place a child or young person in the custody of the chief executive. In those circumstances, s 43(1) provides options to place the child or young person with their family, whānau or family group or any person approved by the chief executive. If that is not practical, the chief executive may place the child or young person in a “residence”. The term “residence” is defined in s 2 and specifically excludes a prison, or a hospital or facility within the meaning of the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003.
[24] The Family Court’s jurisdiction to make a care and protection order is contained in s 83 of the Act. There are some limited powers under s 84 to order reparation or restitution of property that was taken by the child or young person, but fundamentally the regime under pt 2 is not designed to deal with criminal offending. Rather, criminal offending is dealt with under pt 4 or, in very serious cases, the District Court or High Court. Part 2 is not designed to protect the public or victims.
Part 4 of the OT Act
[25] The Youth Court is a division of the District Court, constituted under s 9(c) of the District Court Act. In addition to the definition of “court” in s 2, s 272 of the OT Act reinforces that the Youth Court has jurisdiction over all criminal proceedings brought under pt 4.
[26] Section 7(3) of the CPA provides that the CPA does not apply to proceedings in the Youth Court, except as expressly provided in the OT Act. Correspondingly, s 321 of the OT Act provides that the provisions set out in sch 1 apply, with such modifications as are necessary or set out in that schedule. Section 321(1) does not purport to provide a comprehensive list of all statutes that could be applicable within the Youth Court’s jurisdiction. Rather, sch 1 of the OT Act lists specific provisions that are modified or signalled as requiring modification. I accept the appellant’s submissions that other legislative provisions may still be applicable within the Youth Court jurisdiction, even if not listed in sch 1. This includes the Crimes Act and the Evidence Act 2006.
[27] Section 208 lists the principles applicable for the Youth Court jurisdiction, to be applied in conjunction with those set out in ss 4A(2) and 5. These expand on how the four primary considerations should be applied. Although wellbeing and best interests of the child or young person remain a primary consideration, the public interest, the interests of any victim, and accountability of the child or young person must also be considered. This is appropriate in a criminal context, in a way that does not arise under pt 2.
[28] Section 208A provides that a child or young person may only be subjected to the processes under pts 4 and 5 while the Youth Court is considering how allegations of offending are to be dealt with or is disposing of criminal proceedings. Accordingly, at the point where criminal proceedings are not continuing, jurisdiction under pts 4 and 5 comes to an end.
[29] Some of the procedures for the Youth Court are contained in ss 245–271 of the OT Act. Rather than pleading guilty or not guilty, a decision must be made under s 246 about how to answer the charge. If the charge is denied, then it must be dealt with in accordance with ss 273–276. In all other cases, the default next step is to convene a family group conference.
[30] Under ss 280 and 280A, the Court has the power to refer a case to the care and protection coordinator, or to a person who commenced a proceeding of a certain type, to determine whether the young person may need care or protection under pt 2.
[31] The powers of the Court for determining the criminal charges are contained in ss 282–283. The Court may discharge the charge under s 282. Alternatively, if it is satisfied that a charge against a young person is proved, the Youth Court may make one or more of the orders set out in the hierarchy under s 283. Of those potential responses, the least restrictive is the jurisdiction to discharge the young person from the proceedings without further order or penalty. The most restrictive response is to enter a conviction and require sentencing to take place before the District Court or the High Court. In deciding what orders to make under s 283, the Court is required to have regard to the matters set out in s 284.
[32] Consistent with the explanatory note referred to at [12] above, there is no provision in the OT Act, or as a matter of general law, for a procedure to establish whether a person found unfit to stand trial was physically responsible for the act or omission that forms the basis of the offence. The range of responses available under s 283 all require a finding that a charge against a young person is proved, but it has always been regarded as unfair to try people who are unfit to stand trial. Accordingly, I do not accept that the Youth Court has jurisdiction to fashion its own processes to “prove” criminal facts against a person who is unfit to stand trial.13
The CPMIP Act and the OT Act
[33] Rather, the CPMIP Act was specifically designed to address those circumstances, and suitable adaptations have been made to cater for the CPMIP Act to apply within the framework of the OT Act, either in a context where care and protection orders are sought under pt 2, or within the Youth Court’s criminal jurisdiction under pt 4. In particular, the adaptations relate to how a compulsory health assessment may be conducted. Otherwise, there is nothing in the legislation or drafting background to suggest that the substantive provisions of the CPMIP Act were regarded as inappropriate for young persons.
[34] I accept the submissions of the parties that the CPMIP Act applies for proceedings under pt 4 of the OT Act because they are “criminal proceedings in which a defendant is charged with an imprisonable offence”.14 Accordingly, s 5 of the CPMIP Act makes that Act applicable, whether or not it is also referred to in s 321 and sch 1 of the OT Act.
[35] In the diagram in the Appendix, the provisions for conducting compulsory health assessments are identified with double-lines and arrows. The primary provision for conducting a compulsory health assessment for the purposes of the CPMIP Act is s 38 of that Act. The power to require an assessment under s 38 is much broader than
13 As a division of the District Court created by statute, the Youth Court lacks inherent jurisdiction, but it shares with all courts the implied power to do what is necessary to exercise its statutory functions, powers and duties: McMenamin v Attorney-General [1985] 2 NZLR 274 (CA) at 276. In other words, a power exists only where necessary to give effect to the substantive jurisdiction: District Court at Christchurch v McDonald [2021] NZCA 353, [2021] 3 NZLR 585 at [29].
14 Criminal Procedure (Mentally Impaired Persons) Act s 5. See also pt 4 proceedings are described as “criminal proceedings” in s 208(2)(a) and (b) of the Oranga Tamariki Act.
just evaluating whether the person is unfit to stand trial. It can also be used to determine whether the person is insane within the meaning of s 23 of the Crimes Act, or to help with assessing the type and length of sentence that should be imposed, or any conditions or requirements that might be imposed as part of a sentence or order.
[36] However, the substantive provisions of the CPMIP Act do not require any assessment report under s 38. The substantive determination of whether a person is unfit to stand trial takes place under s 8A of the CPMIP Act. That provision requires the evidence of two health assessors as to whether the defendant is mentally impaired. That evidence can be adduced, for example, following a voluntary health assessment of a defendant who is not in custody. The standard of proof is the balance of probabilities.15 Natural justice processes must be followed, as provided for in s 8A(2)(a).
[37] If the Court is satisfied that the defendant is unfit to stand trial, then the next step is an “involvement hearing”, namely an inquiry under ss 10, 11 or 12 to determine, on the balance of probabilities, whether the evidence against the defendant is sufficient to establish that the defendant caused the act or omission that forms the basis of the offence with which the defendant is charged. This is the concept introduced in the 2011 amendments referred to above, which was an adaptation of the procedural safeguard in s 9 of the statute as originally enacted.
[38] The potential detention, treatment and care orders available under ss 24–25 only apply if the Court is satisfied that there was that degree of involvement. Otherwise, s 13 provides that the Court must dismiss the charges and quash the unfitness finding.
15 Criminal Procedure (Mentally Impaired Persons) Act, s 8A(3).
[39] I now address the three adaptations for how compulsory health assessments may be conducted on a young person for the purpose of assessing fitness to stand trial:
(a)Section 174 of the CPA (set out at [14] above) expressly provides that any court may order a compulsory health assessment under s 38 of the CPMIP Act for a young person, but with the modifications set out in s 174(2). Section 174(2) also refers to and modifies ss 40 to 44 of the CPMIP Act. Broadly, references to a prison are replaced with the custody of the chief executive under pt 2 of the OT Act. Section 174 appears in pt 5, sub-pt 1 of the CPA. Section 321(1) of the OT Act provides that the provisions set out in sch 1 shall apply to Youth Court proceedings, with such modifications as are necessary or set out in that schedule. Schedule 1, cl 2 of the OT Act applies sub-pt 1 of pt 5 of the CPA, with no express modifications to s 174. Accordingly, on its face, s 174 of the CPA is an available power for the Youth Court exercising its criminal jurisdiction under the OT Act.
(b)Section 185 of the OT Act provides that, “[i]n respect of any person to whom an application for a care or protection order relates”, ss 178–183 have effect in place of the provisions of s 38–44 of the CPMIP Act. The fact that only those provisions are replaced implies that the balance of the CPMIP Act does apply. I note that s 5 of the CPMIP Act still requires criminal proceedings, so that the CPMIP Act does not apply merely because care and protection orders have been sought under pt 2.
(c)For the purposes of a pt 4 criminal proceeding, s 333 in pt 5 provides a power for the Youth Court to request that medical, psychiatric, and psychological reports are prepared using the same powers provided for in ss 178–185 (pt 3). Section 333(2)(a) specifically provides that one of those potential purposes is assessing whether the person is “unfit to stand trial” in terms of s 4 of the CPMIP Act.
[40] The key substantive differences between the above pathways to a compulsory health assessment are set out in the table below:
Sections 38–40 CPMIP (with s 174 CPA modifications)
Section 178–183 OT Act
Part 4, s 333 OT Act modifications to
ss 178-183
Trigger
For s 38 to apply, the
Requires an “application
At any stage of any
person must already be for” a care and protection proceedings under pt 4. in custody. This does not order. seem to apply under s 174(1), which allows remand of a defendant in[to] the custody of the chief executive for the purposes of an assessment report. Venue
Section 38(2): hospital or secure facility or custody of chief executive
[replacing “prison”]
Section 178(1): place where the young person is in the custody of the chief executive or
detained in residence; or
Section 178(1): where the young person is in custody or detained in residence; or
Section 181: in hospital if two health
practitioners certify the
need
Section 181: in hospital if two health
practitioners certify the need
Initial time limit
Section 38(2): 14 days
Section 181: 5 days if in hospital
Section 181: 5 days if in hospital
Extension time limit
Section 40: 30 days
Section 181(2): 14 days if in hospital
Section 181(2): 14 days if in hospital
Post-
Section 44: Detention in
-
-
assessment hospital or secure facility preventative pending the hearing or detention: trial
[41] There is a question of circularity about how the above provisions interrelate. In particular, I have considered whether the approach adopted in s 174 of the CPA (of amending but applying ss 38–40) is superseded by ss 185 and 333 replacing those provisions with ss 178–183 for the purposes of pts 2 and 4 of the OT Act. This is material because of the time limits for the assessment, the potential venue and, most importantly, whether there is any preventative power to detain pending hearing or trial under s 44 of the CPMIP Act.
[42]In the decision appealed, Judge Parsons took the view that:16
(a)the incorporation of sub-pts 1 and 2 of pt 5 of the CPA is only so a District Court judge may remand children and young people who are subject to District Court proceedings to the custody of the chief executive of Oranga Tamariki instead of prison while on remand awaiting sentence or assessment; and
(b)this does not suggest that these provisions provide more generally for the CPMIP Act to apply to children or young people appearing in the Youth Court, because the importation under s 321 is “subject to the provisions of the OTA”.
[43] I take a different view, and consider that the pathway under s 174 to ss 38–40 of the CPMIP Act is separately available as an alternative for the Youth Court in appropriate circumstances, for the following reasons:
(a)Section 174 of the CPA was enacted in 2011, well after ss 185 and 333 of the OT Act, yet it expressly addressed how ss 38 and 40–44 relate to powers under the OT Act. Coming later, there is no implication that ss 185 and 333 of the OT Act were intended to override s 174 of the CPA.17
16 New Zealand Police v MNW, above n 1, at [158]–[170].
17 As discussed in Ross Carter Burrows and Carter Statute Law in New Zealand (6th ed, LexisNexis, Wellington, 2021) at 615–619, if two statutory provisions are totally inconsistent with each other, so they cannot stand together, the later in time can be said to impliedly repeal the earlier. However, where they can be reconciled or interpreted as standing together as alternatives, that interpretation would generally be preferable.
(b)Schedule 1 of the OT Act applies sub-pt 1 of pt 5 of the CPA without making any modifications to s 174. It would have been relatively simple to state that the Youth Court is not intended to have such powers, even though the words “any court” in s 174(1) are broad enough to include the Youth Court. I also do not see why it would be necessary to import the section conferring jurisdiction to order remand in that way, if the interface was solely intended to be with the role of the chief executive under pt 2 (which are not Youth Court proceedings in terms of s 321), or the power to grant an approval to extend under s 376(5) which, in my view, is already sufficient to achieve that purpose in its own terms.
(c)The Youth Court having those wider powers is consistent with the legislature’s policy reasons for addressing the lacuna (see [10] and [12] above).
(d)The scope of s 333 reports is broad, including potential purposes of considering orders and conditions where no issues of public safety arise. Section 174 of the CPA (incorporated via s 321 and sch 1) is specific to the circumstances of the CPMIP Act, so there is a proper rationale for the range of potential interim powers to match the final powers available under ss 24 and 25 of the CPMIP Act.
[44] Relatedly, I have also considered the submissions and finding in the decision appealed from18 that the orders available under s 24 of the CPMIP Act are inconsistent with the more restrictive provisions of the OT Act, including the exclusion of prison and secure hospitals from the definition of “residence” and sentencing options. I do not accept that this necessarily indicates a legislative intent that the substantive provisions of the CPMIP Act could not apply to young persons before the Youth Court. The Youth Court exercising its criminal jurisdiction under pt 4 will be subject to the principles and primary considerations in ss 4A(2), 5 and 208, including when applying the CPMIP Act. These require the least restrictive outcome to be imposed that is
18 New Zealand Police v MNW, above n 1, at [171]–[175].
consistent with those principles. So, the powers are fettered. As identified in the policy for introducing the CPMIP Act, there are circumstances where detention in a hospital or secure facility may be necessary, taking into account those four primary considerations. The combined circumstances of mental impairment and criminal offending potentially make those outcomes necessary, even if they are not contemplated or available in the ordinary circumstances addressed by pts 2 and 4 of the OT Act. However, I do acknowledge that s 30(1)(b) of the CPMIP Act restricts detention under s 24 of the CPMIP Act to half the maximum term of imprisonment to which the defendant would have been liable if convicted. For a young person before the Youth Court, it is the constraint in s 30(1)(b) that may effectively preclude a s 24 solution.
[45] Applying the above analysis, in terms of the questions of law outlined above at [2], I answer them as follows:
(a)Yes, the CPMIP Act does apply to Youth Court proceedings. The Youth Court exercises jurisdiction in criminal proceedings in terms of s 5 of the CPMIP Act, even if a term of imprisonment is not usually one of the potential outcomes. The CPMIP Act applies as a whole, subject to necessary adjustments, such as how discharges are granted or appeals pursued. There are specific adjustments made in ss 185 and 333 of the OT Act, substituting ss 178–183 in place of ss 38–44 of the CPMIP Act. However, sch 1, cl 2 of the OT Act applies sub-pt 1 of pt 5 of the CPA, with no express modifications to s 174. The result is that a s 38 report can be ordered by a Youth Court using that alternative pathway, in suitable circumstances. Given the principles in ss 4A(2), 5 and 208 of the OT Act, a report under s 333 would usually be more suitable to the extent it is less intrusive and provides more comprehensive protections for the young person (for example, the duty of a health professional carrying out a medical examination to cause the least distress to the young person possible under s 12, perhaps involving shorter periods and an assessment done in residence).
(b)The District Court has jurisdiction under the CPA, including s 174 which adapts s 38 of the CPMIP Act for application to young persons. The Youth Court exercising its own jurisdiction under pt 4 has a different alternative option of requiring a s 333 OT Act report. In all cases, the Youth Court will have obligations to consider and give effect to the principles in ss 4A(2), 5 and 208 of the OT Act when deciding which report to order and applying the substantive provisions of the CPMIP Act.
(c)The Youth Court has jurisdiction to order a s 333 OT Act report. Alternatively, in appropriate circumstances, I find that it may order a health assessment under s 38 of the CPMIP Act, via s 321 and sch 1 of the OT Act, and s 174 of the CPA. For the purpose of determining the substantive question under s 8A of the CPMIP Act whether the person is unfit to stand trial, what matters is the substance of the reports from the health assessors and whether they satisfy the statutory requirements, rather than how they were sourced. For example, a determination may be made under s 8A based on health assessments that were obtained without a compulsory order. Section 8A requires consideration of reports by two different health assessors before a determination may be made. It may be possible to challenge the validity or admissibility of health assessments that the Youth Court purported to order outside of the proper scope of the statutory provisions. In my view, a procedural error of this type does not necessarily preclude consideration of the reports on their merits.19
(d)If the Youth Court determines that a young person is unfit to stand trial, then the process under the CPMIP Act is available to conduct an involvement hearing and then consider what is the most suitable method of dealing with the person in terms of ss 23–25 of the CPMIP Act, taking into account the constraint of s 30(1). The Youth Court
19 For example, in a criminal proceeding where the prosecution proposes to offer evidence that may have been improperly obtained, then a Judge must determine under s 30 of the Evidence Act 2006 whether the exclusion of it would be proportionate to the impropriety.
retains its powers under s 282 of the OT Act to discharge and under s 280 to refer for a determination of whether care and protection orders are appropriate under pt 2. However, the intention of the legislature when enacting the CPMIP Act was to fill a lacuna and provide for a special process leading to outcomes that could more suitably address the circumstance of a person with mental impairment who committed a criminal act but who is not fit to face trial. The Youth Court is not restricted to its powers under ss 280 and 282, given that those provisions and their related facilities were not designed to deal with such circumstances.
O’Gorman J
Oranga Tamariki Act 1989
Pan 2 - Care fi Protection
4. 3 Pri ner 9les
J 4 Need of care and protection
APPENDIX
Family Court
2 - ”court", in relation to Pans 2, 3 amd 3A
1 SO Subject to 151 and 341, all proceedings under Pan 2 and 3A heard by Family Coun
[s9(c) District Court Act, s 1. 1 Family Coun Act]
Criminal Procedure (Mentally Impaired Persons) Act 2003 (CPMIP)
Part 1 - Preliminary
$ . pq,pg#q
4 Definition of "unfit to stand trial”
39-42 Powers to remove
43 Placement in custody of CE ( residence" one opt›or) Health assessment (part 3) Health assessment in custody Cardinal Procedure
4. 6 Powers of Court 178, 179 Medical, psychiatric and psychological reports as, 39 Coun may require fiealth assessor to prepare report oq Alt 201.1 4 9-52 - Court-ordered exam if harm to child suspected let Court may order exam in hospital (h day man] person in custody and detain for thaI purpose (up to 14 days)
53 - CE requested medical exam 6e ^PP!!""!'"8 *° C&P orde
71 neglect or ill treatment not required
72 - Fami ly group conference usual ly requi red
•" c•P orders
1. 01 CusI ody order (st 0e ceases at 18 at the I atest)
110 - Appoi nt a guard‹an
J 28 Plan required before making order
1g2, 183 - release when no longer required; teview 4p iviaY enend up to 30 days
18'2 For person subject of C&P application, 41 Person in prison may 0e taken to examination 17s-183 have effect in place of 38-44 of CPMIP ad, 43 Trans lets. treatment while detained
44 Oelen lion pending bearing or trial in hospi rat or secure
lac .‹y
Pan 3 - Other pmcedure
4. 97 S tandard of proof civil
198 Special provision for CBP older on grounds of
Part 5, subpan
J 74 Remand <J 8 for s 38
cPviP with cflanpes
Part 7 - Persons in care
36d-366 Residenc es
367-383d Secure cafe
384 Oiscipline
384 A 384K Searches
38g-386 Abscond ing and search warrants
Part 4 • Youth justiee
child’s offending
Youth Court
2 - 'coun', in relation to Pans 4 and 5
272 - Jurisdiction of Youth Court and liabilig of child to be prosecuted for criminal oWences
[as(c) Di trict coun Actj
[s 7(3) of Cùminai Procedure Am: CPA does not apply
BA - Determining if unfit to stand trial (J ) - Must receive the evidence of 2 health assessors
(2) - Process and making finding
(3) - Balance of probabilities stand ard
10-â 2 - lnquiry into defendant's involvement
(2) - Court must decide whether it is satisfied, on the balance of probabilities, that fhe evidence is sufficient to establish that the defendant caused the act or omission that forms fhe basis of the changed offence
N
resumes
a ffend i ng deals with
214-214 B Arrest without warrant
21. 5.220 - Rights when questioned, charged or arrested
221-226 Admiss›biI i ry
227-228 - Entitlement fa barr ister/ solici for
229.232 - Notif)c ation of parents and others
234-2q3 Custody following arresr or pending bearing 245-274 Prosecution procedures
246 - Answering the charge
273, 27'i Manner of dealing will offences
274, 276 E feet ion of jury
276AA-AC Sch A offences and transfer to DC or HC
277 Joint charges
280, 280A Coun may refer to determine under Pan 2 281-2818 Family group conferences
282 Power to discharge
283, 28. 5 - Hierarchy of responses if charge prayed, st restrictions
284 Factors to take into account on sentencing
289 Least rest+ictiye outcome in circumstances
to Youth Coun except as expressiy provided in OTA]
Health assessment (part 5)
333 - Medical, psychiatric an4 psychological reports
(1) May make any order FC can make under ss 178- 1e5, which apply with necessary modifications (2)(a) without limitation includes purpose of asmessing ”unT)t to stand trial” per s4 CPMIP
Part 5 - Other Procedure
321- Application of Acts in Sefi 1 wijh modifications
Time for instituting proceedings 323-328A - Youth and lay advocates
329 Persons entitled to be present 330 - Right to make representations
334 nepott by social worker
13 - Outcome: not involved
(2) (a) Dismiss charges under s 147 CPA
(2) (b) Quash unfitness finding
Subpart 3 - Detention, treatment and care (pre trial)
23 Make inquiries about suitable method of dealing wi th person. meanwfli ie fiospit at or secure facility of other approved place: 24(2)(a) hospital as special paTenT under MH(CAT) Act 1992
24(2)(b) secure facility as special care recipient under ID(CCR) Act 1992
2g(1)(a) trea led as patient under MH(CAT) Act 1992 26(J ) US(1)(b) care recipient under ID(CCR) Act 2003 26(2) M()j)vœiomaeavmde 1omm# xvm m
2S(1)(d) order i mme diate release
Mi nimum heal th assessor evidence requiremen ts 24(3), 25(2)-(3)
Duration and change of statue Other etfects
296 - Expig of ordets
340 Written order*
3.0 Du ra I ion ( J 0 yt s if Ii fe. o t J 72 of m ax)
31,43 Cenific ation procès s i f change
27/32 8tay of proceedings
28 - Effect on phson sentences 29 - Appeals under ss 24, 25, 27
43 Medical treatment while det ained
0