Goff Phil: Criminal Procedure (Mentally Impaired Persons) Bill — Third Reading 
Goff Phil: Criminal Procedure (Mentally Impaired Persons) Bill — Third Reading 
[Volume:612;Page:9545] 
Hon PHIL GOFF (Minister of Justice) 
: 
 I move  
That the Criminal Procedure (Mentally Impaired Persons) Bill be now read a third time 
. This was a bill that was supported by all parties in the House but a number of them chose—because I guess they had to fill in their debating time—to try to find fault with it. The one fault they claimed to find was that Supplementary Order Paper 161 was 44 pages long. I had explained to the Committee a number of times that the reason for the Supplementary Order Paper was that this bill which began life as the Criminal Justice Amendment Bill (No 7) had now become stand alone Act. The reason for that was quite clearly that the Criminal Justice Act is in the process of being fully repealed and “Criminal Justice” as a title for this bill was no longer appropriate because the thrust of this bill was that a person who was found not to be competent to stand trial or who was found to be insane was therefore not criminally culpable. That was accepted. 
Members remarked on the fact that there was an explanatory note. That made it absolutely clear but a little bit of politics went on in the debate. There was however one change that is a change of policy and that change is that the Supplementary Order Paper amends the mandatory requirement that a person be remanded to a hospital or secure facility while inquiries are made about the most suitable method for dealing with that person. Normally a person who is found unfit to stand trial or insane will be remanded to a hospital or a secure facility but that will not inevitably be the case. The person may for example be charged with a relatively minor offence. There may be advice to the judge by health and psychiatric experts that the individual constitutes no risk to the community at all. There may be cases like that and on that basis the Crown Law advice to the Government was that a mandatory requirement is likely to contravene section 22 of the New Zealand Bill of Rights Act under which everyone has the right not to be arbitrarily detained. I would have thought that most members in the House would accept that as a matter of common sense but what we have done as a safeguard—because I believe the public has the right to that safeguard—is that in making in the decision the judge must have regard to the fact that the paramount consideration must be the public safety. Dr Hutchison said quite rightly that we also have to have concern for the patient. I accept that but in cases where things are evenly balanced the judge must give paramount consideration to the safety of the community and I think that that is appropriate. 
There is common ground on this bill—and I think every party agrees on it—which is that important changes are made to ensure the more appropriate care of people with an intellectual disability who appear before the criminal courts. Those people are excluded from the Mental Health (Compulsory Assessment and Treatment) Act unless they also have a mental disorder. Therefore there are limited options currently available to the courts when deciding how they should be dealt with. This bill and its companion measure the Intellectual Disability (Compulsory Care) Bill which is about to come before the House introduce a new process in disposition options for people with an intellectual disability who are either found unfit to stand trial not guilty by reason of insanity or are convicted of an offence. As a consequence people with an intellectual disability who appear before the courts will be dealt with in a more appropriate way than is the case under the current legislation. 
One such important change is that under the bill’s new procedures a person cannot be found unfit to stand trial unless the court is first satisfied that there is sufficient evidence of that person’s physical responsibility for the offence with which they are charged. 
 This addresses the risk under the current law that a person can be found unfit to stand trial and placed into secure care even though that person has not committed the alleged offence. The bill also provides that a trial is not always required to find a defendant not guilty by way of insanity. A judge can accept such a verdict if the prosecution and defence agree and the judge is satisfied on the basis of expert evidence of the defendant’s insanity at the time the offence occurred. This new procedure is a vast improvement on the status quo because it has the potential to prevent the stress that can be caused to defendants and victims by having to go to a full trial even when the appropriate ultimate verdict is not in question. It will also prevent unnecessary appeals in cases where a perverse jury verdict is returned. 
The bill also allows the court to order that a convicted offender receive treatment or care in a hospital or secure facility while also being subject to a prison sentence. If the need for treatment or care ceases the offender will be transferred to prison to complete the remaining period of the sentence. By making this new option available to the court we will ensure that those who appear before the courts and are in need of treatment or care do receive it in a timely fashion. Supplementary Order Paper 161 as I said before also addresses the anomaly relating to the remand of people found unfit to stand trial or found not guilty by reason of insanity. 
Finally the bill allows access to assessment reports for providers who subsequently have offenders transferred into their care from the facilities to which they were first sent under an order from the court. There would be significant risks if subsequent providers did not have access to assessment reports. In particular those providers could be forced to make assessments about offenders on the basis of incomplete information. The current ad hoc nature of arrangements for access to those reports is unsatisfactory and needed to be addressed and it has been addressed by this legislation. 
In summary the bill represents a significant step forward in the treatment and care of the mentally impaired in the criminal justice system. As well as increasing the options open to the court significant new safeguards are introduced to ensure that those subject to the bill’s provisions are dealt with fairly and justly. I believe the bill’s provisions strike an appropriate balance between the rights of the mentally impaired and intellectually disabled and the legitimate concern for safe and appropriate secure care options to be available for those people with a mental impairment who commit offences. I commend the bill to the House.