Source document: https://docs-lawep.s3.us-east-2.amazonaws.com/1698750295019.pdf (New Zealand)
Criminal Procedure (Mentally Impaired Persons) Act 2003 Public Act Date of assent 2003 No 115 30 October 2003 Title Contents Part 1 Preliminary provisions Commencement Purpose Interpretation Application Act binds the Crown Part 2 Substantive provisions Subpart 1—Findings of unﬁtness to stand trial When ﬁnding of unﬁtness to stand trial may be made Postponement of ﬁnding Court must be satisﬁed of defendant’s involvement in offence Inquiry at summary hearing into defendant’s involvement Inquiry at depositions into defendant’s involvement Inquiry at trial into defendant’s involvement Outcome of consideration of defendant’s involvement Determining if defendant unﬁt to stand trial Jurisdiction may be exercised in absence of defendant Appeal by defendant against ﬁnding relating to ﬁtness to stand trial Matters for appellate court on appeal under section 16 Release on bail or detention of appellant pending appeal Appeals by prosecution Page 3 4 4 4 6 7 7 7 7 8 8 9 9 10 10 10 11 12 12 1 Criminal Procedure (Mentally Impaired Persons) Act 2003 Reprinted as at 3 September 2007 Subpart 2—Acquittals on account of insanity Finding of insanity Appeal against acquittal on account of insanity Release on bail or detention of appellant pending appeal Subpart 3—Detention, treatment, and care of persons found unﬁt to stand trial or acquitted on account of insanity Court orders Inquiries about persons found unﬁt to stand trial or insane Detention of defendant found unﬁt to stand trial or insane as special patient or special care recipient Alternative decisions in respect of defendant unﬁt to stand trial or insane Effect of alternative orders Court may stay proceedings when alternative decision made in respect of defendant unﬁt to stand trial Effect of orders under section 24 on prison sentences Appeals against orders under section 24 or section 25 or section 27 Change of status, and discharge, of persons detained as special patients or special care recipients Duration of detention as
 special patient or special care recipient where person unﬁt to stand trial Change of status from special patient to patient or special care recipient to care recipient where person unﬁt to stand trial Proceedings stayed following certain directions under section 31 Duration of order for detention as special patient or special care recipient if person acquitted on account of insanity Subpart 4—Detention, treatment, and care of defendants who are convicted Power of court to commit offender to hospital or facility on conviction Inquiries about persons for whom orders under section 34 proposed Offenders detained as patients Offenders detained as care recipients Reprinted as at 3 September 2007 Criminal Procedure (Mentally Impaired Persons) Act 2003 Subpart 5—Assessment of defendants Power of court to require assessment report Directions as to assessments Period of detention may be extended Attendance at hospitals, etc, by persons detained in prisons Transfer of persons from hospitals, etc, to court, penal, or police custody Medical treatment of persons detained in hospitals, etc Detention pending hearing or trial Disclosure of assessment reports Access to assessment reports 38 39 40 41 42 43 44 45 46 Part 3 Transitional and consequential provisions Transitional provisions 47 Transitional provisions Amendments to other enactments 48 49 50 51 Repeal of Part 7 of Criminal Justice Act 1985 Amendment to Courts Martial Appeals Act 1953 9EA Appeal by accused against ﬁnding relating to ﬁtness to stand trial Amendments to Criminal Investigations (Bodily Samples) Act 1995 Consequential amendments to other enactments Schedule Consequential amendments to other enactments s 1 25 27 27 27 28 29 29 30 31 32 33 33 33 34 35 35 The Parliament of New Zealand enacts as follows: 1 Title This Act Persons) Act 2003. is the Criminal Procedure (Mentally Impaired 3 Part 1 s 2 Criminal
 Procedure (Mentally Impaired Persons) Act 2003 Reprinted as at 3 September 2007 Part 1 Preliminary provisions 2 (1) Commencement This Act comes into force on a date to be appointed by the Governor­General by Order in Council.
(2) Despite subsection (1), if the date appointed under that sub­ section is prior to the commencement of section 4A of the Criminal Investigations (Bodily Samples) Act 1995, section 50 comes into force on that commencement.
Purpose The purpose of this Act is to restate the law formerly set out in Part 7 of the Criminal Justice Act 1985 and to make a number of changes to that law, including changes to— (a) provide the courts with appropriate options for the de­ tention, assessment, and care of defendants and offend­ ers with an intellectual disability: provide that a defendant may not be found unﬁt to stand trial for an offence unless the evidence against the defendant is sufﬁcient to establish that the defen­ dant caused the act or omission that forms the basis of the offence: provide for a number of related matters.
(b) (c) Interpretation In this Act, unless the context otherwise requires,— acquittal on account of insanity includes a dismissal of an information by a District Court on account of the insanity of the person charged care recipient has the same meaning as that given to the ex­ pression care recipient no longer subject to the criminal just­ ice system in the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003 compulsory care order has the same meaning as in the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003 3 4 (1) 4 Reprinted as at 3 September 2007 Criminal Procedure (Mentally Impaired Persons) Act 2003 Part 1 s 4 compulsory treatment order means a compulsory treatment order made under Part 2 of the Mental Health (Compulsory Assessment and Treatment) Act 1992 co­ordinator means a compulsory care co­ordinator ap­ pointed under the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003 counsel, in relation to a person, means a barrister and solicitor of the High Court of New Zealand who is representing the person in proceedings court means any court exercising jurisdiction in criminal pro­ ceedings facility and secure facility have the same meanings as in the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003 guardian includes a welfare guardian appointed under section 12 of the Protection of Personal and Property Rights Act 1988 health assessor means— (a) a practising psychiatrist who is registered as a medical practitioner; or a psychologist; or a specialist assessor under the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003 hospital means a hospital within the meaning of the Mental Health (Compulsory Assessment and Treatment) Act 1992 imprisonable offence means any offence punishable by im­ prisonment, regardless of any restriction imposed by an enact­ ment on the jurisdiction or power of the court dealing with a particular case intellectual disability has the same meaning as in the Intellectual Disability (Compulsory
 Care and Rehabilitation) Act 2003 medical practitioner means a health practitioner who is, or is deemed to be, registered with the Medical Council of New Zealand continued by section 114(1)(a) of the Health Practitioners Competence Assurance Act 2003 as a practi­ tioner of the profession of medicine (b) (c) 5 Part 1 s 5 Criminal Procedure (Mentally Impaired Persons) Act 2003 Reprinted as at 3 September 2007 (b) special care recipient has the same meaning as in the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003 psychologist means a health practitioner who is, or is deemed to be, registered with the Psychologists Board continued by section 114(1)(a) of the Health Practitioners Competence Assurance Act 2003 as a practitioner of the profession of psychology unﬁt to stand trial, in relation to a defendant,— (a) means a defendant who is unable, due to mental impair­ ment, to conduct a defence or to instruct counsel to do so; and includes a defendant who, due to mental impairment, is unable— (i) (ii) to plead: to adequately understand the nature or purpose or possible consequences of the proceedings: to communicate adequately with counsel for the purposes of conducting a defence.
If this Act comes into force before the commencement of sec­ tion 114(1) of the Health Practitioners Competence Assurance Act 2003, then, until that commencement, subsection (1) must be read as if, for the deﬁnitions of medical practitioner and psychologist, there were substituted the following deﬁnitions: medical practitioner means a medical practitioner registered under the Medical Practitioners Act 1995 psychologist means a psychologist registered under the Psychologists Act 1981 Compare: 1985 No 120 ss 2(1), (2), 108 (iii) Application This Act applies only to criminal proceedings in which a de­ fendant is charged with an imprisonable offence.
This Act does not apply to proceedings under the Armed Forces Discipline Act 1971, or to proceedings on appeal from any decision under that Act.

Compare: 1985 No 120 s 3(2) (2) 5 (1) (2) 6 Reprinted as at 3 September 2007 Criminal Procedure (Mentally Impaired Persons) Act 2003 Part 2 s 9 6 Act binds the Crown This Act binds the Crown.
Part 2 Substantive provisions Subpart 1—Findings of unﬁtness to stand trial 7 When ﬁnding of unﬁtness to stand trial may be made (1) A court may make a ﬁnding under this subpart that a defendant is unﬁt to stand trial at any stage after the commencement of the proceedings and until all the evidence is concluded.

Subsection (1) is subject to section 9.


Compare: 1985 No 120 s 109 (2) Postponement of ﬁnding 8 (1) A court may, if it thinks it is in the interests of the defendant to do so, postpone the determination of the question whether a defendant is unﬁt to stand trial.

(2) However, at a hearing or trial, a court may not postpone the determination of that question beyond the stage at which all the evidence is concluded.
(3) When a court postpones the determination of the question whether a defendant is unﬁt to stand trial, the court may not determine the question if— (a) (b) Compare: 1985 No 120 s 110 the defendant is acquitted; or the information against the defendant is dismissed.
9 Court must be satisﬁed of defendant’s involvement in offence 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 sufﬁ­ cient to establish that the defendant caused the act or omission that forms the basis of the offence with which the defendant is charged.
7 Part 2 s 10 Criminal Procedure (Mentally Impaired Persons) Act 2003 Reprinted as at 3 September 2007 10 (1) (2) (3) (4) (5) 11 (1) (2) (3) Inquiry at summary hearing into defendant’s involvement This section applies if a defendant is proceeded against sum­ marily.

If the question whether the defendant is unﬁt to stand trial is to be determined before the hearing of the information, the court must hold a special hearing to ascertain whether the court is satisﬁed of the matter speciﬁed in section 9.
The provisions of Part 5 of the Summary Proceedings Act 1957 (other than section 160A), so far as they are applicable and with any necessary modiﬁcations, apply to every hearing held under subsection (2).

If the question whether the defendant is unﬁt to stand trial is to be determined in the course of the hearing, the court must ascertain whether it is satisﬁed of the matter speciﬁed in sec­ tion 9.
For the purpose of subsection (4), the court may (whether on the application of a party or on the court’s own initiative) do either or both of the following: (a) (b) consider any evidence presented at the hearing: hear any new evidence.

Inquiry at depositions into defendant’s involvement This section applies if a preliminary hearing under Part 5 of the Summary Proceedings Act 1957 is required.
If the question whether the defendant is unﬁt to stand trial is to be determined before the preliminary hearing, the court must hold a special hearing to ascertain whether the court is satisﬁed of the matter speciﬁed in section 9.

The provisions of Part 5 of the Summary Proceedings Act 1957 (other than section 160A), so far as they are applicable and with any necessary modiﬁcations, apply to every hearing held under subsection (2).
(4) A hearing held under subsection (2) takes the place of a pre­ liminary hearing under Part 5 of the Summary Proceedings Act 1957.

If the question whether the defendant is unﬁt to stand trial is to be determined in the course of a preliminary hearing, the court (5) 8 Reprinted as at 3 September 2007 Criminal Procedure (Mentally Impaired Persons) Act 2003 Part 2 s 13 (6) must ascertain whether it is satisﬁed of the matter speciﬁed in section 9.
For the purpose of subsection (5), the court may (whether on the application of a party or on the court’s own initiative) do either or both of the following: (a) consider any evidence presented at the preliminary hearing: hear any new evidence.

(b) (7) A District Court Judge must preside over a court that conducts a special hearing under subsection (2) or determines whether the defendant is unﬁt to stand trial in the course of a prelimin­ ary hearing.
12 (1) (2) Inquiry at trial into defendant’s involvement If the question whether the defendant is unﬁt to stand trial is to be determined in the course of a trial, the court must ascertain whether it is satisﬁed of the matter speciﬁed in section 9.
For the purpose of subsection (1), the court may (whether on the application of a party or on the court’s own initiative) do 1 or more of the following: (a) consider any evidence presented at the preliminary hearing or at the trial: rehear any of the evidence presented at the preliminary hearing: hear any new evidence at any stage before the com­ mencement of the closing addresses.
(b) (c) 13 Outcome of consideration of defendant’s involvement (1) When the court has ascertained, in accordance with any of sections 10 to 12, whether the court is satisﬁed of the matter speciﬁed in section 9, the court must record its ﬁnding on the matter.

If the court is not satisﬁed of the matter speciﬁed in section 9, the court must discharge the defendant.

(2) (3) A discharge under subsection (2) does not amount to an ac­ quittal.
9 Part 2 s 14 Criminal Procedure (Mentally Impaired Persons) Act 2003 Reprinted as at 3 September 2007 (4) 14 (1) (2) (3) (4) 15 If the court is satisﬁed of the matter speciﬁed in section 9, the court must proceed to determine the matters speciﬁed in section 14.

Determining if defendant unﬁt to stand trial If the court records a ﬁnding of the kind speciﬁed in section 13(4), the court must receive the evidence of 2 health assessors as to whether the defendant is mentally impaired.
If the court is satisﬁed on the evidence given under subsec­ tion (1) that the defendant is mentally impaired, the court must record a ﬁnding to that effect and— (a) give each party an opportunity to be heard and to present evidence as to whether the defendant is unﬁt to stand trial; and ﬁnd whether or not the defendant is unﬁt to stand trial; and record the ﬁnding made under paragraph (b).

(c) The standard of proof required for a ﬁnding under subsection (2) is the balance of probabilities.
If the court records a ﬁnding under subsection (2) that the de­ fendant is ﬁt to stand trial, the court must commence or con­ tinue the hearing or trial, or commit the defendant for trial, as the case may require.

Compare: 1985 No 120 s 111(1), (2) (b) Jurisdiction may be exercised in absence of defendant The jurisdiction under any of sections 10 to 14 may be exer­ cised in the absence of the defendant if the court is satisﬁed that the defendant is too mentally impaired to come to court.
Compare: 1985 No 120 s 111(3) 16 Appeal by defendant against ﬁnding relating to ﬁtness to stand trial (1) A defendant about whom a ﬁnding under section 14(2)(b) has been made may appeal against 1 or both of the following ﬁnd­ ings: (a) that the evidence against the defendant is sufﬁcient to establish that the defendant caused the act or omission 10 Reprinted as at 3 September 2007 Criminal Procedure (Mentally Impaired Persons) Act 2003 Part 2 s 17 that forms the basis of the offence with which the de­ fendant is charged: that the defendant is unﬁt to stand trial or, as the case may be, ﬁt to stand trial.
(b) (2) For the purposes of an appeal under this section,— (a) the ﬁnding appealed against is to be regarded as a con­ viction; and the provisions of the Crimes Act 1961 or the Summary Proceedings Act 1957 relating to appeals against con­ viction, so far as they are applicable and with any ne­ cessary modiﬁcations, apply to the appeal.
(b) Compare: 1985 No 120 s 112(1) 17 Matters for appellate court on appeal under section 16 (1) If, on an appeal under section 16, the court is satisﬁed that the evidence against the defendant is not sufﬁcient to establish that the appellant caused the act or omission that forms the basis of the offence with which the appellant is charged, the court must quash the ﬁnding appealed against and direct that the appellant be discharged.
(2) A discharge under subsection (1) does not amount to an ac­ (3) (4) (5) quittal.

In the case of an appeal against a ﬁnding relating to the appel­ lant’s ﬁtness to stand trial, the court must (except where the appellant has been discharged under subsection (1)) consider the evidence of 2 health assessors, and conﬁrm or quash the ﬁnding relating to the appellant’s mental impairment.
If the court is satisﬁed that the appellant is mentally impaired, the court must— (a) give the appellant and the respondent an opportunity to be heard and to present evidence as to whether the appellant is unﬁt to stand trial; and conﬁrm or quash the ﬁnding relating to the appellant’s ﬁtness to stand trial.

(b) If the result of the appeal is that the appellant is ﬁt to stand trial, the court must remit the case to the High Court or the District Court, as the case may require.
Compare: 1985 No 120 s 112(2)­(4) 11 Part 2 s 18 Criminal Procedure (Mentally Impaired Persons) Act 2003 Reprinted as at 3 September 2007 Release on bail or detention of appellant pending appeal 18 (1) An appellant under section 16 in respect of whom an order of detention has been made under any of sections 23, 24, and 25 may be granted bail in the same manner as if he or she had been convicted and sentenced to imprisonment.
If the appellant is not released on bail, the appellant must be detained in accordance with the order of detention while his or her appeal is pending.

(2) (3) A Judge of the High Court, or the District Court Judge who presided over the court whose decision is appealed against, may make any other order that may be thought ﬁt for the cus­ tody of the appellant if the appellant is not released on bail while his or her appeal is pending.
Compare: 1985 No 120 s 112(5)­(7) Appeals by prosecution The prosecution may appeal on a question of law against 1 or more of the following ﬁndings under this subpart: (a) that the evidence against the defendant is not sufﬁcient to establish that the defendant caused the act or omis­ sion that forms the basis of the offence with which the defendant is charged: that the defendant is mentally impaired: that the defendant is unﬁt to stand trial.
(b) (c) The provisions of the Crimes Act 1961 and the Summary Proceedings Act 1957 relating to appeals, so far as they are applicable and with any necessary modiﬁcations, apply to an appeal under subsection (1).

Subpart 2—Acquittals on account of insanity Finding of insanity If, at a hearing or trial, the defendant gives evidence as to his or her insanity and the jury or (if there is no jury) the Judge ﬁnds the defendant not guilty on account of his or her insanity, the Judge must record that ﬁnding.
Before or at a hearing or trial, the Judge must record a ﬁnding that the defendant is not guilty on account of his or her insanity if— 19 (1) (2) 20 (1) (2) 12 Reprinted as at 3 September 2007 Criminal Procedure (Mentally Impaired Persons) Act 2003 Part 2 s 21 (a) (b) (c) the defendant indicates that he or she intends to raise the defence of insanity; and the prosecution agrees that the only reasonable verdict is not guilty on account of insanity; and the Judge is satisﬁed, on the basis of expert evidence, that the defendant was insane within the meaning of section 23 of the Crimes Act 1961 at the time of the commission of the offence.
If, at a trial before a jury, the defendant gives evidence as to his or her insanity and the jury ﬁnds the defendant not guilty, the Judge must ask the jury whether or not it has acquitted the defendant on account of his or her insanity.
In a case where it appears from the evidence that the defendant may have been insane at the time of the commission of the of­ fence, the Judge may ask the jury to ﬁnd whether the defendant was insane within the meaning of section 23 of the Crimes Act 1961, even though the defendant has not given evidence as to his or her insanity or put the question of his or her sanity in issue.
Compare: 1985 No 120 s 113 (3) (4) Appeal against acquittal on account of insanity 21 (1) A defendant who is acquitted on account of his or her insanity may appeal against the verdict or decision, and, for the pur­ poses of such an appeal,— (a) the verdict or decision is to be regarded as a conviction; and the provisions of the Crimes Act 1961 or the Summary Proceedings Act 1957 relating to appeals against con­ viction, so far as they are applicable and with any ne­ cessary modiﬁcations, apply to the appeal.
(b) (2) On such an appeal, the court may— (a) (b) (c) allow the appeal, and direct that a verdict of acquittal or a decision to dismiss the information be substituted for the verdict or decision given at the trial or hearing: dismiss the appeal: exercise a power, whether to direct a new trial or a re­ hearing or otherwise, that it could have exercised if the appeal were an appeal against conviction.
13 Part 2 s 22 Criminal Procedure (Mentally Impaired Persons) Act 2003 Reprinted as at 3 September 2007 (3) (4) If the court thinks that (except for the appellant’s insanity) the proper verdict or decision would have been that the appellant was guilty of an offence other than the offence charged, the court— (a) may not allow the appeal merely because the appellant ought to have been acquitted of the offence charged; and (b) may direct that the other offence be substituted for the offence charged.
If, on such an appeal, the appellate court is satisﬁed that the ﬁnding of insanity ought not to stand, and is satisﬁed that, in the absence of such a ﬁnding, the proper verdict or decision would have been that the appellant was guilty of an offence (whether of the offence charged or any other offence of which the appellant could have been found guilty at the trial or hear­ ing), the appellate court— (a) must substitute for the verdict or decision given a ver­ dict of guilty of the offence or a conviction for the of­ fence; and (b) may exercise a power in relation to the appellant (such as sentencing the appellant) that is available to the court where the verdict or decision appealed against was given.
(5) Unless the appellate court otherwise directs, the term of any sentence of imprisonment passed by it under subsection (4) be­ gins to run as if passed on the date on which the verdict or de­ cision appealed against was given.
Compare: 1985 No 120 s 114(1)­(5) Release on bail or detention of appellant pending appeal 22 (1) An appellant under section 21 in respect of whom an order of detention has been made under any of sections 23, 24, and 25 may be granted bail in the same manner as if he or she had been convicted and sentenced to a term of imprisonment.

If the appellant is not released on bail, the appellant must be detained in accordance with the order of detention while his or her appeal is pending.
The court hearing the appeal, or the Judge who presided at the trial or, as the case may be, the District Court Judge who presided over the court whose decision is appealed against, (2) (3) 14 Reprinted as at 3 September 2007 Criminal Procedure (Mentally Impaired Persons) Act 2003 Part 2 s 23 may make any other order that may be thought ﬁt for the cus­ tody of the appellant if the appellant is not released on bail while his or her appeal is pending.
Compare: 1985 No 120 s 114(6)­(8) Subpart 3—Detention, treatment, and care of persons found unﬁt to stand trial or acquitted on account of insanity Court orders 23 Inquiries about persons found unﬁt to stand trial or insane (2) (1) When a person is found unﬁt to stand trial or is acquitted on ac­ count of his or her insanity, the court must order that inquiries be made to determine the most suitable method of dealing with the person under section 24 or section 25.
For the purposes of the inquiries under subsection (1), the court must either— (a) make it a condition of a grant of bail that the person go to a place approved by the court for the purpose of the inquiries; or remand the person to a hospital or a secure facility.

(b) (4) (3) Despite any provision in the Bail Act 2000, in deciding whether or not to grant bail for the purposes of subsection (2)(a), the need to protect the public is the paramount consid­ eration.
The inquiries under subsection (1) must be completed as quickly as practicable and, in any event, within 30 days after the date of the order under which the inquiries are made.

(5) A person who has an intellectual disability must, during the period in which the inquiries are made under subsection (1), be assessed under Part 3 of the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003.
Compare: 1985 No 120 s 115(4) 15 Part 2 s 24 Criminal Procedure (Mentally Impaired Persons) Act 2003 Reprinted as at 3 September 2007 24 Detention of defendant found unﬁt to stand trial or insane as special patient or special care recipient (1) When the court has sufﬁcient information on the condition of a defendant found unﬁt to stand trial or acquitted on account of his or her insanity, the court must— (a) (b) consider all the circumstances of the case; and consider the evidence of 1 or more health assessors as to whether the detention of the defendant in accordance with one of the orders speciﬁed in subsection (2) is ne­ cessary; and (c) make one of the orders referred to in paragraph (b) if it is satisﬁed that the making of the order is necessary in the interests of the public or any person or class of person who may be affected by the court’s decision.
The orders referred to in subsection (1) are that the defendant be detained— (a) in a hospital as a special patient under the Mental Health (Compulsory Assessment and Treatment) Act 1992; or in a secure facility as a special care recipient under the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003.
(b) Before the court makes an order speciﬁed in subsection (2)(a), the court must have received evidence, under subsection (1)(b), about the defendant from at least 1 health assessor who is a psychiatrist.
Compare: 1985 No 120 s 115(1) after considering the matters Alternative decisions in respect of defendant unﬁt to stand trial or insane speciﬁed in section If, 24(1)(a) and (b) concerning a defendant found unﬁt to stand trial or acquitted on account of his or her insanity, the court is not satisﬁed that an order under section 24(2) is necessary, the court must deal with the defendant— (a) by ordering that the defendant be treated as a patient under the Mental Health (Compulsory Assessment and Treatment) Act 1992; or (2) (3) 25 (1) 16 Reprinted as at 3 September 2007 Criminal Procedure (Mentally Impaired Persons) Act 2003 Part 2 s 26 (b) (c) by ordering that the defendant be cared for as a care recipient under the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003; or if the person is liable to be detained under a sentence of imprisonment, by deciding not to make an order; or by ordering the immediate release of the defendant.
(d) Before the court makes an order under subsection (1)(a), the court must be satisﬁed on the evidence of 1 or more health assessors (at least 1 of whom must be a psychiatrist) that the defendant is mentally disordered.
Before the court makes an order under subsection (1)(b), the court must be satisﬁed on the evidence of 1 or more health assessors that the defendant— (a) (b) has an intellectual disability; and has been assessed under Part 3 of the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003; and is to receive care under a care programme completed under section 26 of that Act.
(c) In the exercise of its powers under subsection (1), the court may take into account any undertaking given by, or on behalf of, the defendant that the defendant will undergo or continue to undergo a particular programme or course of treatment.
Compare: 1985 No 120 s 115(2), (3) (2) (3) (4) Effect of alternative orders 26 (1) An order made under section 25(1)(a) is to be regarded as a compulsory treatment order for the purposes of the Mental Health (Compulsory Assessment and Treatment) Act 1992, and, in making the order, the court must specify whether, for the purposes of that Act, the order takes effect as a community treatment order or as an inpatient order.
(2) An order made under section 25(l)(b) is to be regarded as a compulsory care order for the purposes of the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003, and, in making the order, the court must— (a) direct whether the defendant is to be detained in a secure facility; and 17 Part 2 s 27 Criminal Procedure (Mentally Impaired Persons) Act 2003 Reprinted as at 3 September 2007 (b) specify the term of the order in accordance with section 46 of that Act.
Compare: 1985 No 120 s 115(4A) 27 Court may stay proceedings when alternative decision made in respect of defendant unﬁt to stand trial (1) When the court makes an order under section 25, or a decision under section 25(1)(c), in respect of a defendant who has been found unﬁt to stand trial, the court may order that the proceed­ ings in which that ﬁnding was made are stayed.
(2) While a stay of proceedings ordered under subsection (1) is in force, the defendant in the proceedings may not be charged again with an offence with which he or she was charged in those proceedings.
Compare: 1985 No 120 s 115(5) (2) 28 Effect of orders under section 24 on prison sentences (1) When a sentence of imprisonment is imposed on an offender who is, or subsequently becomes, subject to an order of deten­ tion under section 24, the sentence runs during the currency of the order and any period during which the offender is a patient or care recipient.
Subsection (1) does not apply while the offender is absent without authority from the hospital or facility in which he or she is required to be detained.
If the offender is still liable to be detained under a sentence of imprisonment when the offender is discharged from the hos­ pital or facility in which the offender is detained in accordance with an order under section 24 or as a patient or care recipi­ ent, the chief executive of the Department of Corrections must arrange for the offender to be taken to a prison or other appro­ priate place to serve the remainder of the sentence.
Compare: 1985 No 120 s 115(6) (3) Subsection (3) was amended, as from 1 June 2005, by section 206 Corrections Act 2004 (2004 No 50) by substituting the word “prison” for the words “penal institution”.

See clause 2 Corrections Act Commencement Order 2005 (SR 2005/52).
18 Reprinted as at 3 September 2007 Criminal Procedure (Mentally Impaired Persons) Act 2003 Part 2 s 30 29 (1) (2) Appeals against orders under section 24 or section 25 or section 27 If the court makes an order or a decision under section 24 or section 25 or section 27, the defendant and the prosecution have the same right of appeal against the order or decision as the defendant or, as the case requires, the prosecution would have if the order or decision were a sentence.
The provisions of the Crimes Act 1961 or the Summary Proceedings Act 1957 relating to appeals, so far as they are applicable and with any necessary modiﬁcations, apply to the appeal.

(3) On such an appeal, the court may— (a) (b) (c) dismiss the appeal: vary the order appealed against: cancel the order or decision appealed against and sub­ stitute another order or decision under section 24 or sec­ tion 25 or section 27.
Change of status, and discharge, of persons detained as special patients or special care recipients 30 (1) Duration of detention as special patient or special care recipient where person unﬁt to stand trial 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 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.
(b) (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.
19 Part 2 s 31 Criminal Procedure (Mentally Impaired Persons) Act 2003 Reprinted as at 3 September 2007 (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 a direction is given, under section 31, that the defendant be held as a patient or as a care recipient.
(b) (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.
Compare: 1985 No 120 s 116(1)­(3) Change of status from special patient to patient or special care recipient to care recipient where person unﬁt to stand trial 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 sec­ tion 24 (the defendant).
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 Attorney­General must either— direct that the defendant be brought before the appro­ (a) priate court; or direct that the defendant be held as a patient or, as the case requires, as a care recipient.
(b) 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 31 (1) (2) (3) 20 Reprinted as at 3 September 2007 Criminal Procedure (Mentally Impaired Persons) Act 2003 Part 2 s 32 (b) of the defendant under section 24 is no longer necessary, the Minister of Health, acting with the concurrence of the Attorney­General, must— (a) consider whether, in the Minister’s opinion, the con­ tinued detention of the defendant under that section is no longer necessary; and 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.
The Attorney­General 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 spe­ ciﬁed in section 30 expires; and no direction under subsection (2) or subsection (3) has been given in respect of the defendant; and no certiﬁcate of the kind referred to in subsection (2) has been given in respect of the defendant.
(b) (c) (4) (5) A direction under this section— (a) (b) 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: 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.
The powers and duties conferred and imposed on the Attorney­ General by this section are not capable of being exercised or performed by the Solicitor­General.
Compare: 1985 No 120 s 116(4)­(6A), (8) Proceedings stayed following certain directions under section 31 When a direction is given under section 31 that a defendant be held as a patient or, as the case requires, as a care recipient,— (6) 32 21 Part 2 s 33 Criminal Procedure (Mentally Impaired Persons) Act 2003 Reprinted as at 3 September 2007 (a) (b) the proceedings in which the defendant was ordered to be detained are stayed; and the defendant may not be charged again with an offence with which he or she was charged in those proceedings.
Compare: 1985 No 120 s 116(7) 33 (1) (2) (3) Duration of order for detention as special patient or special care recipient if person acquitted on account of insanity This section applies to a defendant who has been acquitted on account of his or her insanity and who is detained as a special patient or a special care recipient in accordance with an order under section 24 (the defendant).
The order under which the defendant is detained continues in force until— (a) a direction is given under this section that the defendant is to be held as a patient or as a care recipient; or the defendant is discharged in accordance with a direc­ tion given under this section.
(b) If, at any time while the order continues in force, 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’s continued detention under the order is no longer necessary to safeguard the interests speciﬁed in subsection (4), the Minister of Health must— (a) consider whether, in the Minister’s opinion, the defen­ dant’s continued detention is no longer necessary to safeguard those interests; and if, in the Minister’s opinion, that detention is no longer necessary to safeguard those interests, direct— (i) that the defendant be held as a patient or, as the case requires, as a care recipient; or that the defendant be discharged.
(ii) (b) (4) The interests referred to in subsection (3) are— the defendant’s own interests; and (a) the safety of the public or the safety of a person or class (b) of person.
(5) A direction under this section— 22 Reprinted as at 3 September 2007 Criminal Procedure (Mentally Impaired Persons) Act 2003 Part 2 s 34 (a) (b) 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: 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.
Compare: 1985 No 120 s 117 Subpart 4—Detention, treatment, and care of defendants who are convicted 34 (1) Power of court to commit offender to hospital or facility on conviction If the court is satisﬁed of the matters speciﬁed in subsection (2), the court may deal with an offender who is convicted of an imprisonable offence— (a) by sentencing the offender to a term of imprisonment and also ordering that the offender— (i) be detained in a hospital as a special patient under the Mental Health (Compulsory Assessment and Treatment) Act 1992; or be detained in a secure facility as a special care recipient under the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003; or (ii) (b) instead of passing sentence, by ordering that the of­ fender— (i) be treated as a patient under the Mental Health (Compulsory Assessment and Treatment) Act 1992; or be cared for as a care recipient under the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003.
(ii) (2) For the purposes of subsection (1), the court must be satis­ ﬁed, on the evidence of 1 or more health assessors, that the of­ fender’s mental impairment requires the compulsory treatment 23 Part 2 s 35 Criminal Procedure (Mentally Impaired Persons) Act 2003 Reprinted as at 3 September 2007 (3) (4) or compulsory care of the offender either in the offender’s in­ terest, or for the safety of the public or for the safety of a person or class of person.
Before the court makes an order under subsection (1)(a)(i) or (b)(i), the court must be satisﬁed on the evidence of 1 or more health assessors (at least 1 of whom must be a psychiatrist) that the defendant is mentally disordered.
Before the court makes an order under subsection (1)(a)(ii) or (b)(ii), the court must be satisﬁed on the evidence of 1 or more health assessors that the defendant— (a) (b) has an intellectual disability; and has been assessed under Part 3 of the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003; and is to receive care under a care programme completed under section 26 of that Act.
(c) (5) No order may be made under this section in respect of an of­ fender who is, at the time of the conviction, subject to a sen­ tence of imprisonment.

Compare: 1985 No 120 s 118(1), (2) 35 Inquiries about persons for whom orders under section 34 proposed (2) (1) When a court proposes to make an order under section 34 in respect of a person, the court must order that inquiries be made to determine the most suitable method of dealing with the per­ son.
For the purposes of the inquiries under subsection (1), the court must either— (a) make it a condition of a grant of bail that the person go to a place approved by the court for the purpose of the inquiries; or remand the person to a hospital or a secure facility.

(b) The inquiries under subsection (1) must be completed as quickly as practicable and, in any event, within 30 days after the date of the order under which the inquiries are made.
(4) A person who has an intellectual disability must, during the period in which the inquiries are made under subsection (3) 24 Reprinted as at 3 September 2007 Criminal Procedure (Mentally Impaired Persons) Act 2003 Part 2 s 38 36 37 (1), be assessed under Part 3 of the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003.
Offenders detained as patients An order under section 34(1)(b)(i) is to be regarded as a com­ pulsory treatment order for the purposes of the Mental Health (Compulsory Assessment and Treatment) Act 1992, and, in making the order, the court must specify whether, for the pur­ poses of that Act, the order takes effect as a community treat­ ment order or as an inpatient order.
Compare: 1985 No 120 s 118(3) Offenders detained as care recipients An order under section 34(1)(b)(ii) is to be regarded as a compulsory care order for the purposes of the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003, and, in making the order, the court must— (a) direct whether the offender is to be detained in a secure facility within the meaning of that Act; and specify the term of the order in accordance with section 46 of that Act.
(b) Subpart 5—Assessment of defendants Power of court to require assessment report 38 (1) When a person is in custody at any stage of a proceeding against the person, whether before or during the hearing or trial, or while awaiting sentence or the determination of an ap­ peal, a court may, on the application of the prosecution or the defence or on its own initiative, order that a health assessor prepare an assessment report on the person for the purpose of assisting the court to determine 1 or more of the following mat­ ters: (a) (b) whether the person is insane within the meaning of sec­ whether the person is unﬁt to stand trial: (c) tion 23 of the Crimes Act 1961: the type and length of sentence that might be imposed on the person: 25 Part 2 s 38 Criminal Procedure (Mentally Impaired Persons) Act 2003 Reprinted as at 3 September 2007 (d) the nature of a requirement that the court may impose on the person as part of, or as a condition of, a sentence or order.
(2) (b) If a court orders that an assessment report on a person be pre­ pared under subsection (1), the court may— (a) make it a condition of a grant of bail that the person go to a place approved by the court for the purpose of the assessment; or order that the person be detained in a prison for the purpose of the assessment for any period not exceeding 14 days as the court thinks ﬁt; or order that the person be detained in a hospital or secure facility for the purpose of the assessment for any period not exceeding 14 days as the court thinks ﬁt, if— (i) (c) a remand to a prison for that purpose would be inappropriate for any reason; and a health assessor has expressed the opinion, in a certiﬁcate or in evidence, that it would be de­ sirable if an assessment, or a further assessment, take place in a hospital or in a secure facility.
(ii) (3) No order may be made under subsection (2)(b) or (c) in respect of a person if— (a) (b) the person is bailable as of right; or the person would have been released on bail but for the need for an assessment report.

If the court makes an order under subsection (2)(c) for a per­ son’s detention and assessment in a hospital or secure facility, it must record the reasons why it would have been inappro­ priate to order the detention of the person in a prison for that assessment.
Subsection (1)— (a) (b) has effect despite other enactments; but is subject, in the case of a defendant who is under 20 years, to section 142 of the Criminal Justice Act 1985 and to section 15 of the Bail Act 2000.

Compare: 1985 No 120 s 121(1)­(4) Subsections (2) and (4) were amended, as from 1 June 2005, by section 206 Corrections Act 2004 (2004 No 50) by substituting the word “prison” for the words “penal institution” wherever they appeared.
See clause 2 Corrections Act Commencement Order 2005 (SR 2005/52).
(4) (5) 26 Reprinted as at 3 September 2007 Criminal Procedure (Mentally Impaired Persons) Act 2003 Part 2 s 41 Directions as to assessments 39 (1) On making an order under section 38(1) that a health assessor prepare an assessment report or at any time while a matter for which the report is required remains to be determined, the court may direct that another health assessor provide a second opinion on the person to whom the report relates (the subject).
(2) Unless the court otherwise directs, every order under section 38(1) is deemed to include a direction that, in preparing the assessment report on the subject, the health assessor consult, wherever practicable, with the following persons about the subject’s condition and background: any caregiver of the subject: (a) any welfare guardian of the subject: (b) if the subject is a child or young person, each parent or (c) guardian of the child or young person: the subject’s family or whanau.
(d) 40 (1) (2) Period of detention may be extended The period for which a person may be detained under an order made under section 38(2)(b) or (c) may, from time to time, be extended with the consent of the person or the person’s guardian, but the total period of detention under the order may not exceed 30 days.

It is not necessary for a person subject to detention to be pre­ sent when the period of detention is extended under subsection (1), as long as the person is represented by counsel.
Compare: 1985 No 120 s 121(5), (6) 41 Attendance at hospitals, etc, by persons detained in prisons (1) A person who is detained in a prison under an order made under section 38(2)(b) may, from time to time, be taken by, or under the direction of, the manager of the prison to a hos­ pital, facility, or other appropriate place for the purposes of examination, and may also be taken back to the prison by, or under the direction of, that manager.
(2) A person who is taken to a hospital, facility, or place under subsection (1) may not stay in the hospital, facility, or place overnight.

27 Part 2 s 42 Criminal Procedure (Mentally Impaired Persons) Act 2003 Reprinted as at 3 September 2007 (3) A person who is being examined in a hospital, facility, or place continues to be in legal custody under the Corrections Act 2004, even though the person is absent from the prison in which he or she is detained.
Compare: 1985 No 120 s 121(7) The heading to section 41 was amended, as from 1 June 2005, by section 206 Corrections Act 2004 (2004 No 50) by substituting the word “prisons” for the words “penal institutions”.

See clause 2 Corrections Act Commencement Order 2005 (SR 2005/52).

Subsection (1) was amended, as from 1 June 2005, by section 206 Corrections Act 2004 (2004 No 50) by substituting the word “prison” for the words “pe­ nal institution” in both places they appeared.
See clause 2 Corrections Act Commencement Order 2005 (SR 2005/52).

Subsection (1) was amended, as from 1 June 2005, by section 206 Correc­ tions Act 2004 (2004 No 50) by substituting the word “manager” for the word “superintendent” in both places it appeared.

See clause 2 Corrections Act Commencement Order 2005 (SR 2005/52).
Subsection (3) was amended, as from 1 June 2005, by section 206 Correc­ tions Act 2004 (2004 No 50) by substituting the words “legal custody under the Corrections Act 2004, even though the person is absent from the prison” for the words “the legal custody of the superintendent concerned, even though the person is absent from the penal institution”.

See clause 2 Corrections Act Commencement Order 2005 (SR 2005/52).
Transfer of persons from hospitals, etc, to court, penal, or police custody Even though a person has not yet been detained in a hospital or secure facility for the full period speciﬁed in an order under section 38(2)(c), the person may be transferred at the direction of the Director of Area Mental Health Services for the hospital or the co­ordinator for the secure facility to court or penal or police custody for 1 or more of the purposes speciﬁed in sub­ section (3).
If the assessment report on a person is sent to the court before the expiry of the period for which a person has been ordered to be detained in a hospital or secure facility under section 38(2)(c), the person must be transferred at the direction of the Director of Area Mental Health Services for the hospital or the co­ordinator for the secure facility to court or penal or police custody for 1 or more of the purposes speciﬁed in subsection (3).
42 (1) (2) 28 Reprinted as at 3 September 2007 Criminal Procedure (Mentally Impaired Persons) Act 2003 Part 2 s 44 (3) (4) The purposes for transferring a person to court or penal or police custody, referred to in subsection (1) or subsection (2), are— (a) (b) (c) the hearing or trial of a charge against the person: the sentencing of the person: an appeal against the conviction of the person or against a sentence or order imposed on the person.
The transfer of a person under subsection (1) or subsection (2) to court or penal or police custody is sufﬁcient authority for the detention of the person in that custody until the expiry of the period for which the person has been ordered to be detained in a hospital or secure facility under section 38(2)(c).
Compare: 1985 No 120 s 121(8), (10) (2) 43 Medical treatment of persons detained in hospitals, etc (1) An order under section 23 or section 35 or section 38(2)(c) for the detention of a person in a hospital or secure facility is authority for the administration to the person of any medical treatment or procedure to which the person consents.
If the person is incapable of giving consent, the Director of Area Mental Health Services for the hospital or the co­ordin­ ator for the secure facility may authorise any medical treat­ ment or procedure that, in the opinion of that Director or co­or­ dinator, is immediately necessary to prevent— (a) (b) (c) the physical or mental deterioration of the person; or serious suffering by the person; or the person causing harm to himself or herself or to others.
(3) 44 (1) This section does not limit an enactment or a rule of law that authorises the administration of a medical treatment or pro­ cedure.
Compare: 1985 No 120 s 121(9) Detention pending hearing or trial If a defendant is brought before a court following an assess­ ment of the defendant conducted under section 38(2)(b) or (c), the court may, on the application of a party or on the court’s own initiative, order the detention of the defendant in a hos­ pital or secure facility pending the hearing or trial.
29 Part 2 s 45 Criminal Procedure (Mentally Impaired Persons) Act 2003 Reprinted as at 3 September 2007 (2) (3) If an order is made under subsection (1), any subsisting order under section 38(2)(b) or (c) is cancelled.
The court may not make an order under subsection (1) without the consent of the following persons: (a) the defendant or, if the defendant is incapable of giving consent, the defendant’s guardian: the Director of Area Mental Health Services for the hos­ pital, or the co­ordinator for the secure facility, in which the defendant is to be detained.
(4) An order made under subsection (1)— (b) (5) (a) does not prevent the defendant from being brought be­ fore the court for the purposes of the hearing or trial: does not operate to delay the hearing or trial: is cancelled on the conclusion of the hearing or trial.
(b) (c) The court must, on the application of a party, cancel an order made under subsection (1) if,— (a) in a case where the defendant is capable of giving con­ sent, the defendant does not wish the order to continue; or in a case where the defendant is not capable of giv­ ing consent, the defendant’s guardian does not wish the order to continue; or the Director of Area Mental Health Services for the hos­ pital, or the co­ordinator for the secure facility, in which the defendant is detained does not wish the order to con­ tinue; or the court considers that detention of the defendant in a hospital or secure facility pending the hearing or trial is no longer necessary or appropriate.
(b) (c) (d) Compare: 1985 No 120 s 121(11)­(13) 45 (1) Disclosure of assessment reports In this section and in section 46, the person to whom a report under section 38 relates is called the subject.

(2) When a report prepared under section 38 is submitted to a court, the Registrar of the court must give a copy of the re­ port to the subject and (if the subject is represented) also to the subject’s counsel.
30 Reprinted as at 3 September 2007 Criminal Procedure (Mentally Impaired Persons) Act 2003 Part 2 s 46 (3) Despite subsection (2), the court may order that 1 or more parts of the report not be disclosed to the subject if the court considers that disclosure of those parts would be likely— (a) to prejudice the physical or mental health of the subject; or to endanger the safety of any individual.
(b) If the subject is represented when an order under subsection (3) is made, the entire report must be shown to the subject’s counsel.

The subject or his or her counsel may give evidence on 1 or more matters referred to in the report.

(4) (5) (6) A failure to comply with this section does not affect the valid­ ity of any proceedings, order, or sentence.
Compare: 1985 No 120 s 122 46 (1) Access to assessment reports The following persons have access to a report submitted to a court under section 38 and held by the court: (a) (b) the prosecutor: the manager or other person in charge of, or a staff mem­ ber of, a prison to which the subject is sent, whether dur­ ing any proceedings or in accordance with a sentence imposed on the subject: a Director of Area Mental Health Services or a staff member of a hospital who requires access to the report for the purposes of his or her ofﬁcial duties: a co­ordinator or a staff member of a facility who re­ quires access to the report for the purposes of his or her ofﬁcial duties: an ofﬁcer or employee of the Department of Corrections or of the Ministry of Justice or of the Ministry of Health who requires access to the report for the purposes of his or her ofﬁcial duties: a health assessor who, in accordance with a direction under section 39(1), is to provide a second opinion on the subject.
(c) (d) (e) (f) (2) If, because of an order under section 45(3), a subject may not be shown a part of a report, the subject may not have access 31 Part 3 s 47 Criminal Procedure (Mentally Impaired Persons) Act 2003 Reprinted as at 3 September 2007 to that part of the report under the Ofﬁcial Information Act 1982 or the Privacy Act 1993.
Compare: 1985 No 120 s 123 Subsection (1)(b) was amended, as from 1 June 2005, by section 206 Correc­ tions Act 2004 (2004 No 50) by substituting the word “prison” for the words “penal institution”.

See clause 2 Corrections Act Commencement Order 2005 (SR 2005/52).

Subsection (1)(b) was amended, as from 1 June 2005, by section 206 Cor­ rections Act 2004 (2004 No 50) by substituting the word “manager” for the word “superintendent”.

See clause 2 Corrections Act Commencement Order 2005 (SR 2005/52).
Part 3 Transitional and consequential provisions Transitional provisions 47 (1) Transitional provisions This Act applies to all proceedings described in section 5, even if the proceedings were commenced before the commence­ ment of this Act.

(2) Despite subsection (1),— (a) (b) section 34(1)(a) does not apply to an offence committed before the commencement of this Act: section 39(2) does not apply to a psychiatric examin­ ation ordered under section 121 of the Criminal Justice Act 1985.
(3) Nothing in this Act affects the validity of— (a) (b) an order or decision under Part 7 of the Criminal Justice Act 1985; or a step taken in any proceedings before the commence­ ment of this Act.

(4) Every ﬁnding under Part 7 of the Criminal Justice Act 1985 that a defendant is under disability is to be regarded as a ﬁnding under this Act that the defendant is unﬁt to stand trial.
(5) An order made or deemed to have been made under section 115(1) of the Criminal Justice Act 1985 is to be regarded as made under section 24(2)(a) of this Act.

(6) An order made or deemed to have been made under section 115(2)(a) of the Criminal Justice Act 1985 is to be regarded as made under section 25(1)(a).
32 Reprinted as at 3 September 2007 Criminal Procedure (Mentally Impaired Persons) Act 2003 Part 3 s 49 (7) (b) For the purposes of the continuation or completion of any pro­ ceedings commenced before the commencement of this Act,— an order made under section 121(2)(b)(i) of the (a) Criminal Justice Act 1985 is to be regarded as made under section 38(2)(b) of this Act: an order made under section 121(2)(b)(ii) of the Criminal Justice Act 1985 is to be regarded as made under section 38(2)(c) of this Act: an order made under section 121(11) of the Criminal Justice Act 1985 is to be regarded as made under section 44(1) of this Act.
(c) Amendments to other enactments 48 Repeal of Part 7 of Criminal Justice Act 1985 Part 7 of the Criminal Justice Act 1985 is repealed.
49 (1) Amendment to Courts Martial Appeals Act 1953 The Courts Martial Appeals Act 1953 is amended by repealing section 9EA, and substituting the following section: “9EA Appeal by accused against ﬁnding relating to ﬁtness to stand trial “(1) A person who has been found unﬁt to stand trial by a court martial may appeal against 1 or both of the following ﬁndings: that the evidence against the appellant is sufﬁcient to es­ “(a) tablish that the appellant caused the act or omission that forms the basis of the offence with which the appellant is charged: that the appellant is unﬁt to stand trial.
“(b) “(2) For the purposes of an appeal under this section,— “(a) “(b) the ﬁnding appealed against is to be regarded as a con­ viction; and the provisions of this Act relating to appeals, so far as they are applicable and with any necessary modiﬁca­ tions, apply to the appeal.
If the Court is satisﬁed that the evidence presented against the appellant is not sufﬁcient to establish that the appellant caused the act or omission that forms the basis of the offence with which the appellant is charged, the Court must quash the “(3) 33 Part 3 s 50 Criminal Procedure (Mentally Impaired Persons) Act 2003 Reprinted as at 3 September 2007 ﬁnding appealed against and direct that the appellant be dis­ charged.
“(4) A discharge under subsection (3) does not amount to an ac­ “(5) “(6) “(7) quittal.

In the case of an appeal against a ﬁnding relating to the ap­ pellant’s ﬁtness to stand trial, the Court must (except where the appellant has been discharged under subsection (3)) con­ sider the evidence of 2 qualiﬁed medical practitioners (within the meaning of section 187(1) of the Armed Forces Discipline Act 1971), and conﬁrm or quash the ﬁnding relating to the ap­ pellant’s mental impairment.
If the Court is satisﬁed that the appellant is mentally impaired, the Court must— “(a) give the appellant and the respondent an opportunity to be heard and to present evidence as to whether the appellant is unﬁt to stand trial; and conﬁrm or quash the ﬁnding relating to the appellant’s ﬁtness to stand trial.
“(b) If the result of the appeal is that the appellant is ﬁt to stand trial, the Court must give a written direction to the appropriate convening ofﬁcer to convene a court martial to try the charge on which the appellant was previously remanded for trial by court martial.” (2) Despite subsection (1), any appeal against a ﬁnding under sec­ tion 188(1A) of the Armed Forces Discipline Act 1971 (as in force immediately before the commencement of this Act) must proceed as if subsection (1) had not been enacted.
Amendments to Criminal Investigations (Bodily Samples) Act 1995 In this section, the Criminal Investigations (Bodily Samples) Act 1995 is called “the Act”.

Section 2(1) of the Act is amended by adding to paragraph (c) of the deﬁnition of conviction the word “; and”, and by also adding the following paragraph: a ﬁnding that the person is unﬁt to stand trial;—”.
Section 4A(1) of the Act is amended by repealing paragraph (c), and substituting the following paragraphs: 50 (1) (2) “(d) (3) 34 Reprinted as at 3 September 2007 Criminal Procedure (Mentally Impaired Persons) Act 2003 Schedule “(c) “(d) (4) “(e) 51 in, or on leave from, a hospital— “(i) “(ii) under section 46 of the Mental Health (Compulsory As­ sessment and Treatment) Act 1993; or following an application under section 45(2) of the Mental Health (Compulsory Assessment and Treat­ ment) Act 1993; or “(iii) under an order under section 34(1)(a)(i) of the Criminal Procedure (Mentally Impaired Persons) Act 2003; or in, or on leave from, a secure facility— “(i) following an application under section 29(1) of the In­ tellectual Disability (Compulsory Care and Rehabilita­ tion) Act 2003; or “(ii) under an order under section 34(1)(a)(ii) of the Criminal Procedure (Mentally Impaired Persons) Act 2003.” Section 46(1) of the Act is amended by adding to paragraph (d) the word “; or”, and by also adding the following para­ graph: in a facility under the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003.” Consequential amendments to other enactments The Acts speciﬁed in the Schedule are amended in the manner indicated in that schedule.
Schedule Consequential amendments to other enactments s 51 Armed Forces Discipline Act 1971 (1971 No 53) Omit from section 21(3)(c) the words “under disability” and substi­ tute the words “unﬁt to stand trial”.

Omit from section 22(1)(e) the words “under disability” and substi­ tute the words “unﬁt to stand trial”.

Omit from the heading to Part 10 the word “Disordered” and substi­ tute the word “Impaired”.
35 Schedule Criminal Procedure (Mentally Impaired Persons) Act 2003 Reprinted as at 3 September 2007 Repeal the deﬁnition of qualiﬁed medical practitioner in section 187(1) and substitute: “qualiﬁed medical practitioner means— “(a) a practising psychiatrist who is registered as a medical practi­ tioner in New Zealand; or in respect of a court­martial held overseas, a person approved by the convening ofﬁcer on being satisﬁed that the person— is a member of the medical profession in a country other “(i) than New Zealand; and “(b) “(ii) has broadly the same qualiﬁcations under the law of that country as a medical practitioner under paragraph (a).” Repeal section 187(1A) and substitute: “(1A) For the purposes of this Part, unﬁt to stand trial— “(b) “(a) means an inability of the accused, due to mental impair­ ment, to conduct a defence or to instruct counsel, or the member of the Armed Forces who is to defend the ac­ cused, to do so; and includes an inability of the accused, due to mental im­ pairment, to do any 1 or more of the following: “(i) “(ii) to plead: to adequately understand the nature or purpose or possible consequences of the proceedings: “(iii) to communicate adequately, for the purposes of conducting a defence, with counsel or the mem­ ber of the Armed Forces who is to defend the per­ son.” Repeal section 188 and substitute: “188 When court may ﬁnd accused unﬁt to stand trial “(1) A court­martial may, at any time before or during a trial, de­ termine in accordance with section 188A whether an accused is unﬁt to stand trial.
“(2) The court may not make a ﬁnding on whether the accused is unﬁt to stand trial unless the court is satisﬁed, on the balance of probabilities, that the evidence presented by the prosecu­ tion is sufﬁcient to establish that the accused caused the act or omission that forms the basis of the offence with which the accused is charged.
36 Reprinted as at 3 September 2007 Criminal Procedure (Mentally Impaired Persons) Act 2003 Schedule “(3) “(4) If the question whether the accused is unﬁt to stand trial is to be determined before the trial, a special hearing must be held to ascertain whether the court is satisﬁed of the matter speciﬁed in subsection (2).

If the court is not satisﬁed of the matter speciﬁed in subsection (2), the court must record a ﬁnding to that effect and discharge the accused.
“(5) A discharge under subsection (4) does not amount to an ac­ “(6) quittal.

If the court is satisﬁed of the matter speciﬁed in subsection (2), the court must record a ﬁnding to that effect, and proceed to determine the matters speciﬁed in section 188A.
“188A Determining if accused unﬁt to stand trial “(1) If a court­martial records a ﬁnding of the kind speciﬁed in section 188(6), the court must receive the evidence of at least 1 qualiﬁed medical practitioner as to whether the accused is mentally impaired.
If the court is satisﬁed on the evidence given under subsection (1) that the accused is mentally impaired, the court must record a ﬁnding to that effect and— “(a) give the prosecutor and the accused an opportunity to be heard and to present evidence as to whether the accused is unﬁt to stand trial; and “(2) “(b) ﬁnd whether the accused is unﬁt to stand trial; and record the ﬁnding made under paragraph (b).
“(c) “(3) A ﬁnding that the accused is unﬁt to stand trial does not have effect unless a reviewing authority has, under section 198(4)(a), directed that the ﬁnding is to stand.

“(4) The standard of proof required for a ﬁnding under this section is the balance of probabilities.
“(5) The jurisdiction conferred on a court­martial by this section and by section 188 may be exercised by the court in the ab­ sence of the accused if the court is satisﬁed by medical evi­ dence that the accused is too mentally impaired to be brought before a court­martial.
37 Schedule Criminal Procedure (Mentally Impaired Persons) Act 2003 Reprinted as at 3 September 2007 “188B Court may postpone ﬁnding as to unﬁtness to stand trial “(1) A court­martial may, if in its opinion it is in the interests of the accused to do so, postpone a ﬁnding as to whether the accused is unﬁt to stand trial until any time up to the stage at which all the evidence is concluded.
In any case where a ﬁnding is postponed under subsection (1), the court may not make a ﬁnding on the matter if the accused is acquitted of every offence with which he or she is charged.” “(2) Insert in section 190, after subsection (1): “(1A) A court­martial must record a ﬁnding that the accused is not “(b) “(c) guilty on account of his or her insanity if— “(a) the accused indicates that he or she intends to raise the defence of insanity; and the prosecution agrees that the only reasonable verdict is not guilty on account of insanity; and the court­martial is satisﬁed on the basis of expert evi­ dence that the accused was insane within the meaning of section 23 of the Crimes Act 1961 at the time of the commission of the offence.” Omit from the heading to section 191 the words “under disability” and substitute the words “unﬁt to stand trial”.
Omit from section 191(1)(a) the words “to be under disability” and substitute the words “unﬁt to stand trial”.

Insert in section 191(2), after the words “interests of the public”, the words “, or of any person or class of person who may be affected by the court’s decision,”.

Omit from section 191(4), (5), (6), and (7) the words “to be under disability” in each place where they occur and substitute in each case the words “unﬁt to stand trial”.
Omit from the heading to section 192 the words “under disability” and substitute the words “unﬁt to stand trial”.

Omit from section 192(1)(a) the word “Seven” and substitute the ex­ pression “10”.

Omit from section 192(1), (2), (4), (5), and (6)(a) the words “under disability” wherever they occur and substitute in each case the words “unﬁt to stand trial”.
38 Reprinted as at 3 September 2007 Criminal Procedure (Mentally Impaired Persons) Act 2003 Schedule Insert in section 193(2), after the words “for the safety of”, the words “any person or class of person or”.
Repeal section 194(1) and substitute: “(1) A court­martial that (whether in New Zealand or elsewhere) convicts a person of an offence that is punishable by impris­ onment may, if the court is satisﬁed of the matters speciﬁed in subsection (1A),— “(a) sentence the person to a term of imprisonment and also order that the person be detained in a hospital as a spe­ cial patient under the Mental Health (Compulsory As­ sessment and Treatment) Act 1992; or instead of passing sentence, order that the person be treated as a patient under the Mental Health (Compul­ sory Assessment and Treatment) Act 1992.
“(1A) For the purposes of subsection (1), the court must be satisﬁed, by a certiﬁcate of 1 qualiﬁed medical practitioner,— “(a) “(b) that the person is mentally disordered; and that the person’s mental impairment requires that the person should be detained either in the person’s interest or for the safety of the public or for the safety of a person or class of person.” “(b) Omit from section 194(2A) the words “this section” and substitute the expression “subsection (1)(b)”.
Omit from the heading to section 198 the words “where person under disability and promulgation of ﬁnding of disability” and substitute the words “if person found unﬁt to stand trial”.

Omit from section 198(1) the words “under disability” and substitute the words “unﬁt to stand trial”.

Omit from section 198(4) the words “under disability” wherever they occur and substitute in each case the words “unﬁt to stand trial”.
Omit from section 198(4)(d) the words “ﬁnding of disability” and substitute the words “ﬁnding of unﬁtness to stand trial”.

Omit from section 198(7) the words “under disability” and substitute the words “unﬁt to stand trial”.

Omit from section 206(1)(g) the words “under disability” and substi­ tute the words “unﬁt to stand trial”.
39 Schedule Criminal Procedure (Mentally Impaired Persons) Act 2003 Reprinted as at 3 September 2007 Children, Young Persons, and Their Families Act 1989 (1989 No 24) Repeal paragraph (c)(ii) of the deﬁnition of residence in section 2(1) and substitute: “(ii) a psychiatric hospital or a facility within the meaning of the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003; or”.
Repeal section 185 and substitute: “185 Sections to have effect in place of sections 38 to 44 of Criminal Procedure (Mentally Impaired Persons) Act 2003 In respect of any person to whom an application for a dec­ laration under section 67 of this Act relates, the provisions of sections 178 to 183 of this Act have effect in the place of the provisions of sections 38 to 44 of the Criminal Procedure (Mentally Impaired Persons) Act 2003.” Insert in section 333(2), after the words “the Court may obtain a psy­ chiatric”, the words “or psychological”.
Omit from section 333(2)(a) the words “under disability within the meaning of section 108 of the Criminal Justice Act 1985” and sub­ stitute the words “unﬁt to stand trial within the meaning of section 4 of the Criminal Procedure (Mentally Impaired Persons) Act 2003”.

Insert in section 333(3), after the words “for the purposes of a psy­ chiatric examination”, the words “or a psychological assessment”.
Coroners Act 1988 (1988 No 111) [Repealed] Coroners Act 1988: this item was repealed, as from 1 July 2007, by section 146 Coroners Act 2006 (2006 No 38).
Crimes Act 1961 (1961 No 43) Repeal section 120(1)(ba) and substitute: “(ba) being subject to an order or direction made under any of sec­ tions 38, 42, and 44 of the Criminal Procedure (Mentally Im­ paired Persons) Act 2003 or section 171(2) of the Summary 40 Reprinted as at 3 September 2007 Criminal Procedure (Mentally Impaired Persons) Act 2003 Schedule Proceedings Act 1957, escapes from the place in which he or she is required to stay under the order; or”.
Repeal section 122 and substitute: “122 Assisting escape of mentally impaired person detained for offence Every one is liable to imprisonment for a term not exceeding 5 years who— “(a) rescues any person who is ordered to be detained as a special patient under the Mental Health (Compulsory Assessment and Treatment) Act 1992 or as a special care recipient under the Intellectual Disability (Com­ pulsory Care and Rehabilitation) Act 2003 while that person is being taken to or from a hospital within the meaning of the Mental Health (Compulsory Assess­ ment and Treatment) Act 1992, or a secure facility within the meaning of the Intellectual Disability (Com­ pulsory Care and Rehabilitation) Act 2003, or any other place; or “(b) being a constable, an ofﬁcer of a penal institution, a se­ curity ofﬁcer within the meaning of section 2 of the Pe­ nal Institutions Act 1954, or an ofﬁcer of or employee in any hospital within the meaning of the Mental Health (Compulsory Assessment and Treatment) Act 1992, or a secure facility within the meaning of the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003, and who has in his or her custody any person lawfully detained as a special patient under the Men­ tal Health (Compulsory Assessment and Treatment) Act 1992 or as a special care recipient under the Intellec­ tual Disability (Compulsory Care and Rehabilitation) Act 2003, voluntarily and intentionally permits that per­ son to escape from custody, whether while the person is being taken to or from any of the places speciﬁed in paragraph (a) or otherwise.” Repeal section 178(4) to (6) and substitute: “(4) If the jury returns a special verdict under subsection (3), the Judge must order that the woman be examined by 2 medical practitioners and the following provisions apply: 41 Schedule Criminal Procedure (Mentally Impaired Persons) Act 2003 Reprinted as at 3 September 2007 “(a) “(b) “(c) “(ii) pending the receipt by the Judge of certiﬁcates from the medical practitioners, the woman must be detained in a place that
 the Judge thinks appropriate, and that place must be 1 of the following: “(i) a hospital within the meaning of the Mental Health (Compulsory Assessment and Treatment) Act 1992: a facility within the meaning of the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003: “(iii) a penal institution: if each of the medical practitioners certiﬁes that the woman is no longer insane and that she is in no need of care and treatment in a hospital within the meaning of the Mental Health (Compulsory Assessment and Treat­ ment) Act 1992 or in a facility within the meaning of the Intellectual Disability (Compulsory Care and Rehabili­ tation) Act 2003, the Judge must order that the woman be discharged from custody immediately: unless each of the medical practitioners certiﬁes in ac­ cordance with paragraph (b), sections 23 to 29 of the Criminal Procedure (Mentally Impaired Persons) Act 2003 apply, so far as they are applicable, as if the refer­ ences in those sections to the Court were references to the Judge.
“(5) If, under subsection (4)(c), the Judge makes an order that the woman be detained in a hospital as a special patient under the Mental Health (Compulsory Assessment and Treatment) Act 1992 or as a special care recipient under the Intellectual Dis­ ability (Compulsory Care and Rehabilitation) Act 2003, sec­ tion 33 of the Criminal Procedure (Mentally Impaired Persons) Act 2003 applies.” Omit from section 178(7) the words “Part 7 of the Criminal Justice Act 1985” and substitute the words “the Criminal Procedure (Men­ tally Impaired Persons) Act 2003”.
Omit from section 386(4) the words “sections 115, 117, and 119 of the Criminal Justice Act 1985” and substitute the words “sections 42 Reprinted as at 3 September 2007 Criminal Procedure (Mentally Impaired Persons) Act 2003 Schedule 23 to 26, 28, and 33 of the Criminal Procedure (Mentally Impaired Persons) Act 2003”.

Criminal Justice Act 1985 (1985 No 120) Repeal the deﬁnitions in section 2(1) of compulsory treatment order, hospital, mentally disordered, and patient.
Repeal section 142(5A) and substitute: “(5A) The court may remand a defendant who is under 17 years in the custody of the chief executive of the department for the time being responsible for the administration of the Children, Young Persons, and Their Families Act 1989 for the purposes of an assessment report under section 38 of the Criminal Pro­ cedure (Mentally Impaired Persons) Act 2003 if— “(a) “(b) 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 the court would (in the absence of the provisions of sub­ section (1) or subsection (2)) have remanded the defen­ dant to a penal institution in accordance with section 38(2)(b) of that Act for the purposes of the assessment report.” Omit from section 142(5B) the words “Where, in any case to which subsection (1) of section 121 of this Act applies, the defendant is under the age of 17 years, the provisions of subsections (2)(b)(ii) and (2A) to (13) of that section shall be read as if” and substitute the words “If, in any case to which section 38(1) of the Criminal Pro­ cedure (Mentally Impaired Persons) Act 2003 applies, the defendant is under the age of 17 years, the provisions of section 38(2)(c) to (4) and sections 40 to 44 of that Act must be read as if”.
Repeal section 148.

Electoral Act 1993 (1993 No 87) Repeal the deﬁnition of mental institution in section 3(1).
43 Schedule Criminal Procedure (Mentally Impaired Persons) Act 2003 Reprinted as at 3 September 2007 Repeal section 80(1)(c) and substitute: “(c) “(ii) a person who is detained in a hospital under the Mental Health (Compulsory Assessment and Treatment) Act 1992 or in a secure facility under the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003, and to whom 1 of the fol­ lowing applies: “(i) the person has been found by a Court or a Judge to be unﬁt to stand trial within the meaning of the Criminal Procedure (Mentally Impaired Persons) Act 2003, or has been acquitted on account of his or her insanity, and (in either case) is detained under an order or direction under section 24 or section 31 or section 33 of that Act or under the corresponding provisions of the Criminal Justice Act 1985 and has been so detained for a period exceeding 3 years: the person has been found by a Court, on conviction of any offence, to be mentally impaired, and is detained under an order made under section 34 of the Crim­ inal Procedure (Mentally Impaired Persons) Act 2003 or section 118 of the Criminal Justice Act 1985, and has been so detained for a period exceeding 3 years: “(iii) the person is subject to, and has for a period exceeding 3 years been subject to, a compulsory treatment order made following an application under section 45(2) of the Mental Health (Compulsory Assessment and Treat­ ment) Act 1992 or a compulsory care order made fol­ lowing an application under section 29(1) of the In­ tellectual Disability (Compulsory Care and Rehabilita­ tion) Act 2003: the person is detained under section 46 of the Mental Health (Compulsory Assessment and Treatment) Act 1992, and is a person to whom paragraph (d) would otherwise apply:”.
“(iv) Omit from section 80(2) the words “section 115(1) or section 118 of the Criminal Justice Act 1985” and substitute “section 24 or sec­ tion 34 of the Criminal Procedure (Mentally Impaired Persons) Act 2003”.
44 Reprinted as at 3 September 2007 Criminal Procedure (Mentally Impaired Persons) Act 2003 Schedule Extradition Act 1999 (1999 No 55) Add to section 7 the word “; or” and also add: “(g) the person is detained in a facility as a special care recipient under the Intellectual Disability (Compulsory Care and Re­ habilitation) Act 2003.” Repeal section 22(l)(b)(iii) and substitute: “(iii) the Criminal Procedure (Mentally Impaired Persons) Act 2003.” Repeal section 43(1)(b)(iii) and substitute: “(iii) sections 38 to 44 of the Criminal Procedure (Mentally Im­ paired Persons) Act 2003.” International Crimes and International Criminal Court Act 2000 (2000 No 26) Omit from section 41(1)(b) the words “section 121 of the Criminal Justice Act 1985” and substitute the words “sections 38 to 44 of the Criminal Procedure (Mentally Impaired Persons) Act 2003”.
Juries Act 1981 (1981 No 23) Insert in section 2, after the deﬁnition of general electoral district: “intellectual disability has the same meaning as in the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003”.
Repeal the deﬁnition of mentally disordered in section 2 and sub­ stitute the following deﬁnition: “mental disorder, in relation to any person, means an abnormal state of mind (whether of a continuous or an intermittent nature) that is— characterised by delusions, or disorders of mood or perception “(a) or volition or cognition; and “(b) not induced by substance abuse; and “(c) not simply due to the fact that the person has an intellectual disability.”.
Repeal section 8(i) and substitute: “(i) persons with a mental disorder:”.
Add to section 8: “(k) persons with an intellectual disability.” 45 Schedule Criminal Procedure (Mentally Impaired Persons) Act 2003 Reprinted as at 3 September 2007 Mental Health (Compulsory Assessment and Treatment) Act 1992 (1992 No 46) Repeal the deﬁnition of special patient in section 2(1) and substitute: “special patient means— “(a) a person who is liable to be detained in a hospital under an order made under— “(i) section 24(2)(a) or section 38(2)(c) or section 44(1) of the Criminal Procedure (Mentally Impaired Persons) Act 2003; or section 171(2) of the Summary Proceedings Act 1957; or “(ii) “(b) “(c) “(d) “(e) a person who is remanded to a hospital under section 23 or section 35 of the Criminal Procedure (Mentally Impaired Per­ sons) Act 2003; or a person who is liable to be detained in a hospital under sec­ tion 34(1)(a)(i) of the Criminal Procedure (Mentally Impaired Persons) Act 2003, and who has not ceased, under section 48 of this Act, to be a special patient; or a person who is liable to be detained in a hospital, either fol­ lowing an application under section 45(2) or arrangements made under section 46, and who has not ceased, under sec­ tion 48, to be a special patient; or a person who, in accordance with section 136(5)(a) of the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003, must be held as a special patient.” Omit from section 36(1) the words “subsection (2)(b)(ii) or subsec­ tion (11) of section 121 of the Criminal Justice Act 1985” and sub­ stitute the words “section 38(2)(c) or section 44(1) of the Criminal Procedure (Mentally Impaired Persons) Act 2003”.
Repeal section 36(2)(a) and substitute: “(a) becomes subject to an order under section 24 or section 34 of the Criminal Procedure (Mentally Impaired Persons) Act 2003; or”.

Omit from the heading to section 47 the word “back”.
Repeal section 47(l) and substitute: “(1) If, in the opinion of the Director of Area Mental Health Ser­ vices, a special patient detained following an application made 46 Reprinted as at 3 September 2007 Criminal Procedure (Mentally Impaired Persons) Act 2003 Schedule under section 45(2) or subject to an order made under section 34(1)(a)(i) of the Criminal Procedure (Mentally Impaired Per­ sons) Act 2003 is ﬁt to be released, that ofﬁcer may, with the consent of the Director, direct that the special patient be taken to a penal institution to serve the remainder of the patient’s sentence or the order applicable to the patient, or otherwise be dealt with according to law.” Insert, after section 47: “47A Removal of certain intellectually disabled patients to facilities “(1) This section applies to— “(a) “(b) a patient or a special patient— “(i) who is subject to a compulsory treatment order that was made following an application under the Intellectual Disability section 136(2) of (Compulsory Care and Rehabilitation) Act 2003; and “(ii) who, in the opinion of the Director of Area Men­ tal Health Services, is ﬁt to be released from com­ pulsory status under this Act; and a special patient (not being a patient to whom paragraph (a) applies)— “(i) who, in the opinion of the Director of Area Men­ tal Health Services, is ﬁt to be released from com­ pulsory status under this Act; and “(ii) who has been assessed by a specialist assessor within the meaning of the Intellectual Disabil­ ity (Compulsory Care and Rehabilitation) Act 2003 as having an intellectual disability within the meaning of that Act.
“(2) The Director of Area Mental Health Services may, with the consent of the Director, direct that a patient to whom this sec­ tion applies be taken to an appropriate facility under the Intel­ lectual Disability (Compulsory Care and Rehabilitation) Act 2003.
“(3) When a direction is given under subsection (2), the Director must notify the responsible co­ordinator under the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003, 47 Schedule Criminal Procedure (Mentally Impaired Persons) Act 2003 Reprinted as at 3 September 2007 who must arrange for the patient to be removed to a facility within 7 days after the date of the direction unless an appli­ cation is sooner made under section 8A for assessment of the patient.
“(4) Any direction given under this section in respect of a patient is sufﬁcient authority for the removal of the patient to the facility speciﬁed in the direction and for the reception of the patient there.
“(5) On the removal of the patient under subsection (4) to a facility under the Intellectual Disability (Compulsory Care and Re­ habilitation) Act 2003,— “(a) “(b) “(c) “(d) “(e) the patient must be regarded as having been released from assessment and treatment as a patient under this Act; and if the patient is a special patient, he or she must be held as a special care recipient under that Act until the status of the person is changed in accordance with that Act or the Criminal Procedure (Mentally Impaired Persons) Act 2003; and if the patient is a special patient who is, or is deemed to be, subject to an order under section 24(2)(a) of the Criminal Procedure (Mentally Impaired Persons) Act 2003, the order is deemed to have been made under section 24(2)(b) of that Act; and if the patient is subject to a compulsory treatment order, that order becomes a compulsory care order (within the meaning of that Act) that is deemed to have been made on the date of the removal for a term of 6 months; and if the patient is a special patient who is, or is deemed to be, subject to an order under section 34(1)(a)(i) of the Criminal Procedure (Mentally Impaired Persons) Act 2003, the order is deemed to have been made under section 34(1)(a)(ii) of that Act.” Omit section 48(1)(a)(i) and substitute: “(i) is detained in a hospital, either following an application under section 45(2) or under section 46 of this Act or under section 34(1)(a)(i) of the Criminal Procedure (Mentally Impaired Per­ sons) Act 2003; or”.
48 Reprinted as at 3 September 2007 Criminal Procedure (Mentally Impaired Persons) Act 2003 Schedule Repeal section 48(1)(d) and substitute: “(d) liability to detention under a sentence ceases on the earliest of the following dates: “(i) the date speciﬁed in an order of the New Zealand Parole Board that the person be released on parole or compas­ sionate leave: the release date (if any) of the person’s sentence, as deﬁned under Part 1 of the Parole Act 2002: “(ii) “(iii) the date on which the sentence is determined.” Insert, after section 48(3)(b): “(ba) if at that time he or she is subject to an order under section 34(1)(a)(i) of the Criminal Procedure (Mentally Impaired Per­ sons) Act 2003, he or she is deemed to be subject to a compul­ sory treatment order:”.
Insert in section 50(1), after the words “section 46 of this Act”, the words “or under section 34(1)(a)(i) of the Criminal Procedure (Men­ tally Impaired Persons) Act 2003”.

Insert in section 76(1), after the words “subject to a compulsory treatment order”, the words “or subject to an order under section 34(1)(a)(i) of the Criminal Procedure (Mentally Impaired Persons) Act 2003”.
Repeal section 76(6) and substitute: “(6) Despite anything in subsection (5), if the responsible clinician is of the opinion that a special patient detained in a hospital following an application made under section 45(2), or subject to an order made under section 34(1)(a)(i) of the Criminal Pro­ cedure (Mentally Impaired Persons) Act 2003, is ﬁt to be re­ leased from compulsory status, the patient must be dealt with in accordance with section 47(1), and section 47(3) and (5) ap­ plies.
“(6A) Despite anything in subsection (5), if a patient or special pa­ tient is subject to a compulsory treatment order that was made following an application under section 136(2) of the Intel­ lectual Disability (Compulsory Care and Rehabilitation) Act 2003, he or she must be dealt with in accordance with section 47A.” 49 Schedule Criminal Procedure (Mentally Impaired Persons) Act 2003 Reprinted as at 3 September 2007 Omit from section 77(1) the words “section 115(1) of the Criminal Justice Act 1985” and substitute the words “section 24(2)(a) of the Criminal Procedure (Mentally Impaired Persons) Act 2003”.
Omit from section 77(3) the words “a ﬁnding of disability” and sub­ stitute the words “a ﬁnding of unﬁtness to stand trial”.

Omit from section 77(3)(a) and (c) the words “under disability” wher­ ever they occur and substitute in each case the words “unﬁt to stand trial”.

Omit from section 77(3)(c) the words “section 116 of the Criminal Justice Act 1985” and substitute the words “section 31 of the Crim­ inal Procedure (Mentally Impaired Persons) Act 2003”.
Repeal section 77(3)(d) and substitute: “(d) despite section 31 of the Criminal Procedure (Mentally Im­ paired Persons) Act 2003, on receiving a copy of the certiﬁ­ cate of clinical review under paragraph (c), the Attorney­Gen­ eral may, instead of exercising and performing the powers and duties under that section, apply to the Review Tribunal for a review of the patient’s condition.” Omit from section 77(4)(c) the words “section 117 of the Criminal Justice Act 1985” and substitute the words “section 33 of the Crim­ inal Procedure (Mentally Impaired Persons) Act 2003”.
Repeal section 77(4)(d) and substitute: “(d) despite section 33 of the Criminal Procedure (Mentally Im­ paired Persons) Act 2003, on receiving a copy of the certiﬁcate of clinical review under paragraph (c), the Minister of Health may, instead of exercising and performing the powers and du­ ties under that section, apply to the Review Tribunal for a re­ view of the patient’s condition.” Insert in section 79(9), after the words “a special patient”, the words “(other than a special patient to whom paragraph (e) of the deﬁnition of special patient in section 2(1) applies)”.
Insert in section 79, after subsection (9): “(9A) Despite anything in subsection (8), if a patient or special pa­ tient is subject to a compulsory treatment order that was made following an application under section 136(2) of the Intel­ lectual Disability (Compulsory Care and Rehabilitation) Act 50 Reprinted as at 3 September 2007 Criminal Procedure (Mentally Impaired Persons) Act 2003 Schedule 2003, he or she must be dealt with in accordance with section 47A.” Omit from section 80(4) the words “a ﬁnding of disability” and sub­ stitute the words “a ﬁnding of unﬁtness to stand trial”.
Omit from section 80(4)(a) and (c) the words “under disability” wher­ ever they occur and substitute in each case the words “unﬁt to stand trial”.

Omit from section 80(4)(c) the words “section 116 of the Criminal Justice Act 1985” and substitute the words “section 31 of the Crim­ inal Procedure (Mentally Impaired Persons) Act 2003”.
Omit from section 80(5)(c) the words “section 117 of the Criminal Justice Act 1985” and substitute the words “section 33 of the Crim­ inal Procedure (Mentally Impaired Persons) Act 2003”.
Repeal section 84(4) and (5) and substitute: “(4) If the person has been found to be unﬁt to stand trial and is detained as a special patient under section 24 of the Criminal Procedure (Mentally Impaired Persons) Act 2003, and it ap­ pears to the satisfaction of the Judge that the person is capable of being tried or committed for trial on the charge or indict­ ment against him or her, the Judge has (without prejudice to subsection (5)) the same powers as the Attorney­General has under section 31 of that Act to direct that the person be brought before a court under that section.
If the person has been found unﬁt to stand trial and is detained as a special patient by virtue of section 24 of the Criminal Procedure (Mentally Impaired Persons) Act 2003, the Judge may, if in the circumstances of the case the Judge considers it proper to do so and if the interests of justice so permit (whether or not the person is capable of being tried or committed for trial), direct that the charge or indictment be dismissed.” “(5) Repeal Schedule 4.
51 Schedule Criminal Procedure (Mentally Impaired Persons) Act 2003 Reprinted as at 3 September 2007 Parole Act 2002 (2002 No 10) Insert in section 4(1), after the deﬁnition of release date: “secure facility means a secure facility within the meaning of the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003.” Add to the heading to section 10 the words “or secure facility”.
Repeal section 10(1) and substitute: “(1) This section applies to an offender who is detained in, or on leave from, a hospital or secure facility and who is liable to be detained— “(a) in the hospital following an application under section 45(2) of the Mental Health (Compulsory Assessment and Treatment) Act 1992 or under an arrangement under section 46 of that Act; or in the secure facility following an application under sec­ tion 29(1) of the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003; or in the hospital or the secure facility under an order under section 34(1)(a) of the Criminal Procedure (Mentally Impaired Persons) Act 2003.” “(b) “(c) Add to section 10(2) the words “or, as the case requires, a secure facility”.
Add to section 10(4) the words “or, as the case requires, section 69(3) of the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003”.

Insert in the heading to section 30, after the word “hospital”, the words “or secure facility”.

Insert in section 30(1), after the word “hospital”, the words “or secure facility”.

Add to section 30(2) the words “or the secure facility”.
Insert in section 43(l), after paragraph (e): “(ea) in the case of an offender currently detained in, or on leave from, a secure facility, a report from the compulsory care co­ordinator concerning the offender and the care and re­ 52 Reprinted as at 3 September 2007 Criminal Procedure (Mentally Impaired Persons) Act 2003 Schedule habilitation plan that has been, or is to be, put in place for the offender; and”.

Insert in section 43(2)(e), after the word “detained”, the words “, or on leave from,”.
Insert in section 43(2), after paragraph (e): “(ea) the compulsory care co­ordinator (in the case of an offender currently detained in, or on leave from, a secure facility):”.

Add to section 58(3) the words “or in a secure facility”.

Omit from section 91(2) the words “section 115(1) of the Criminal Justice Act 1985” and substitute the words “section 24(2) of the Criminal Procedure (Mentally Impaired Persons) Act 2003”.
Repeal section 91(2)(c) and substitute: “(c) in a hospital or secure facility under any of sections 23, 35, 38(2), and 44(1) of the Criminal Procedure (Mentally Impaired Persons) Act 2003:”.

Insert in section 91(2)(d), after the word “hospital”, the words “or secure facility”.

Insert in section 91(2), after paragraph (e): “(ea) in a secure facility following an application under section 29(1) of the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003:”.
Omit from section 92(1) the words “or hospital” and substitute the words “hospital, or secure facility”.
Insert in section 107P(3), after the words “a hospital”, the words “or secure facility under a compulsory care order or” The item relating to section 107P(3) was inserted, as from 8 July 2004, by section 15 Pa­ role (Extended Supervision) Amendment Act 2004 (2004 No 67) Penal Institutions Act 1954 (1954 No 51) Insert in section 4I(1)(1), after the words “under section 45 of the Mental Health (Compulsory Assessment and Treatment) Act 1992”, the words “or section 29(1) of the Intellectual Disability (Compul­ sory Care and Rehabilitation) Act 2003”.
53 Schedule Criminal Procedure (Mentally Impaired Persons) Act 2003 Reprinted as at 3 September 2007 Sentencing Act 2002 (2002 No 9) Add to the deﬁnition of health assessor in section 4(1) the word “; or”, and also add: “(c) a specialist assessor under the Intellectual Disability (Compul­ sory Care and Rehabilitation) Act 2003”.
Repeal section 29(l)(b) and substitute: “(b) a Director of Area Mental Health Services, or a staff member of a hospital, who requires access to the report for the purposes of his or her ofﬁcial duties: “(ba) a compulsory care co­ordinator, or a staff member of a facility under the Intellectual Disability (Compulsory Care and Re­ habilitation) Act 2003, who requires access to the report for the purposes of his or her ofﬁcial duties:”.
Omit from section 88(2) the words “section 121(1) of the Criminal Justice Act 1985” and substitute the words “section 38(1) and (5) of the Criminal Procedure (Mentally Impaired Persons) Act 2003”.

Omit from section 88(2)(a) the words “section 121(2) of the Crim­ inal Justice Act 1985” and substitute the words “section 38(2) of the Criminal Procedure (Mentally Impaired Persons) Act 2003”.
Omit from section 88(2)(b) the words “subsections (2A) to (13) of section 121 and sections 122 and 123” and substitute the words “sec­ tion 38(4) and sections 40 to 46”.

Repeal sections 167 to 171.

Summary Proceedings Act 1957 (1957 No 87) Omit from section 121(2A) the words “sections 115, 117, and 119 of the Criminal Justice Act 1985” and substitute the words “sections 23 to 26, 28, and 33 of the Criminal Procedure (Mentally Impaired Persons) Act 2003”.
Repeal section 171(2) and substitute: “(2) Despite subsection (1), the District Court may, instead of is­ suing a warrant under that subsection, make an order for the defendant’s detention in a hospital or secure facility pending the defendant’s trial if the District Court is satisﬁed, on the production of a certiﬁcate or certiﬁcates by 2 health assessors, that— 54 Reprinted as at 3 September 2007 Criminal Procedure (Mentally Impaired Persons) Act 2003 Schedule “(3) “(a) “(b) the defendant is mentally impaired; and the defendant’s mental condition requires that, in the de­ fendant’s own interest, the defendant should be detained in a hospital or secure facility instead of in a prison.
In subsection (2),— “(a) health assessor has the same meaning as in section 4 of the Criminal Procedure (Mentally Impaired Persons) Act 2003: “(b) hospital has the same meaning as in section 2(1) of the Mental Health (Compulsory Assessment and Treat­ ment) Act 1992: secure facility has the same meaning as in section 9(2) of the Intellectual Disability (Compulsory Care and Re­ habilitation) Act 2003.” “(c) Victims’ Rights Act 2002 (2002 No 39) Insert in section 4, after the deﬁnition of child: “facility has the same meaning as in section 9 of the Intellectual Dis­ ability (Compulsory Care and Rehabilitation) Act 2003; and includes a secure facility within the meaning of that section”.
Insert in section 33(1)(b), after the word “hospital”, the words “or facility”.
Repeal section 33(2)(b) and substitute: “(b) the offender, having been liable to be detained in a penal in­ stitution in connection with the offence, becomes liable to be detained— “(i) in a hospital following an application under section 45(2) of the Mental Health (Compulsory Assessment and Treatment) Act 1992, or under an arrangement under section 46 of that Act; or in a facility following an application under section 29(1) of the Intellectual Disability (Compulsory Care and Re­ habilitation) Act 2003.” “(ii) Repeal section 33(3)(b) and substitute: “(b) the person accused of the offence or, as the case requires, the offender, having been liable to be detained in a hospital or fa­ cility in connection with the offence, is removed to a penal 55 Schedule Criminal Procedure (Mentally Impaired Persons) Act 2003 Reprinted as at 3 September 2007 institution under section 47(1) of the Mental Health (Compul­ sory Assessment and Treatment) Act 1992 or section 71 of the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003.” Add to the heading to section 37 the words “or facility”.
Insert in section 37(1), after the word “hospital” in both places where it occurs, the words “or facility”.

Insert in section 37(1)(a), after the words “Mental Health (Compul­ sory Assessment and Treatment) Act 1992”, the words “or as a spe­ cial care recipient as deﬁned in section 6(2) of the Intellectual Dis­ ability (Compulsory Care and Rehabilitation) Act 2003”.
Omit from section 37(1)(b) the words “section 115(2)(a) or section 118(1) of the Criminal Justice Act 1985” and substitute the words “section 25(1)(a) or (b) or section 34(1)(b) of the Criminal Procedure (Mentally Impaired Persons) Act 2003”.
Repeal section 37(2)(b)(i) to (iii) and substitute: “(i) under section 31 or section 50 or section 52 of the Mental Health (Compulsory Assessment and Treatment) Act 1992; or “(ii) under any of sections 65 to 67 of the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003; and”.

Insert in section 37(2)(d), after the word “hospital”, the words “or facility”.
Repeal section 38(1) and substitute: “(1) This section applies if an offender referred to in section 37— “(a) was, when his or her liability to detention in a hospital or facility began, liable to be detained— “(i) following an application under section 45(2) of the Mental Health (Compulsory Assessment and Treatment) Act 1992, or under an arrangement under section 46 of that Act; or following an application under section 29(1) of the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003; or “(ii) “(iii) under an order under section 34(1)(a) of the Criminal Procedure (Mentally Impaired Per­ sons) Act 2003; and 56 Reprinted as at 3 September 2007 Criminal Procedure (Mentally Impaired Persons) Act 2003 “(b) ceases, under section 48 of the Mental Health (Compul­ sory Assessment and Treatment) Act 1992, to be a spe­ cial patient within the meaning of that Act or ceases, under section 69 of the Intellectual Disability (Compul­ sory Care and Rehabilitation) Act 2003, to be a special care recipient within the meaning of that Act.” Add to section 52(1) the word “; or”, and also add: “(c) is a compulsory care co­ordinator appointed under section 140 of the Intellectual Disability (Compulsory Care and Rehabili­ tation) Act 2003.” 5 October 1999 30 April 2001 21 October 2003 Legislative history Introduction, ﬁrst and second reading, and referral to the Health Committee (Bill 328­1) Reported from Health Committee (Bill 328­2) Consideration of report, committee of the whole House, third reading 57