In a recent criminal law opinion piece, barrister Melissa Russell suggests that I have missed the point in relation to a case note published in LawNews on Teika v District Court [2024] NZHC. 1017.
In particular, Russell suggests my commentary on Teika was intended to offer a “quick fix” for the Ministry of Health to facilitate a “quick-fire return to the upended status quo”.
This was a reference to my suggestion of a simple amendment to s 23 of the Criminal Procedure (Mentally Impaired Persons) Act 2003 to accommodate what I saw as a legislative oversight when the s 10 involvement hearing was re-sequenced in 2018.
I maintain this was a legitimate observation. There are two points I would make.
First, Russell is wrong when she suggests a finding of unfitness means an accused is not criminally responsible. She continues, “If an accused is not a criminal, he or she should not be held in an institution for criminals”.
A determination that a person is unfit to stand trial is not a determination that he or she is not criminally responsible. It is simply a determination as to whether there is a competent adversary to be proceeded against in a criminal trial.
An offender may be judged unfit to stand trial yet may come back to trial after competence has been restored. At that point, the offender may, or may not, have an insanity defence to determine if he or she is criminally responsible.
Second, while I may agree with Russell about the parlous state of health facilities generally for dealing with mentally impaired offenders, including young offenders, that was not, on this occasion, my particular concern.
The facts of Teika and its outcome speak for themselves, whether or not, as Russell suggests, there is potential for further habeas applications to be filed.
Warren Brookbanks is a Professor at AUT Law School and a member of The Law Association’s Mental Health and Disability Law committee.
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