News —

Member Yvonne Mortimer-Wang appears for interveners in High Court decision of public interest


February 23, 2023

The High Court has recently released its decision in Maaka-Wanahi v Attorney-General [2023] NZHC 187.  Member Ms Mortimer-Wang appeared (lead by Kerryn Beaton KC) for the New Zealand Law Society and the New Zealand Bar Association as interveners, addressing the obligations of counsel acting for defendants with mental health issues, and setting out the need for, and nature of, a rights-consistent approach to the interpretation of s 38 of the Criminal Procedure (Mentally Impaired Persons) Act 2003 (“the CPMIP”).

The case concerned two applications concerning the interpretation of s 38 of the CPMIP. Section 38 of the CPMIP provides that the Court may order a “health assessor” prepare a report for the purposes of assisting the Court to determine whether a person is fit to stand trial, or is insane within the meaning of s 23 of the Crimes Act 1961, or to otherwise determine the nature of their sentence. It also permits the Court to detain a person for the purposes of assessment and the production of the above report. This detention may last up to 14 days, or, with consent, 30 days.

Mr Maaka-Wanahi is an individual who had difficulties in obtaining a section 38 report and he brought proceedings seeking declarations clarifying the obligations of the state.   Te Whatu Ora Health New Zealand – Waikato sought declarations as to the correct interpretations of CPMIP Act and what they meant for psychiatrists and forensic nurses in its employ.   The Attorney-General appeared in opposition but agreed with each of the applicants in part. The New Zealand Law Society, New Zealand Bar Association, and Criminal Bar Association of New Zealand appeared as intervenors and made submissions.

The Court found that while s 38 of CPMIP does not impose any specific time frame on the production of reports, such reports must be provided without undue delay to be compatible with the defendant’s rights under the New Zealand Bill of Rights Act 1990. What an undue delay is can only be determined in the light of specific circumstances before each individual Court.

In deciding the issue, the Court referred to the NZLS and NZBA submissions delivered in part by Ms Mortimer-Wang.  Counsel for the intervenors submitted, and the Court accepted, that affirmation of the rights of defendants facing s 38 orders should not be determined by the current limitations in relation to the availability of health assessors. The Court repeated the intervenors’s submissions that there was a need for urgent attention at the state level.

The decision is anticipated to have important practical ramifications for the procedure relating to the ordering and completion of s 38 reports across New Zealand.

Yvonne Mortimer Wang appeared for the New Zealand Law Society and the New Zealand Bar Association, lead by Kerryn Beaton KC.

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