Rights for Victims of Insane Offenders Bill

Rights for Victims of Insane Offenders Bill

Member’s Bill

129—1

Explanatory note

General policy statement

The intent of the Rights for Victims of Insane Offender’s Bill is to ensure the victims of legally insane offenders are treated the same as other victims of crime.

The bill formalises the need for the court to determine that, despite a traditional verdict of not guilty on account of insanity, and despite the lack of legal culpability of the offender, the defendant caused the act or omission forming the basis of the offence. It subsequently requires that determination to be recorded on the official record.

Victims of an offender who is found not guilty by reason of insanity do not receive the same rights as victims of an offender who is found guilty. For victims, the description of “not guilty” can leave them feeling that the court has found no crime has occurred even when the act or omission that constitutes the offence has been proven on the facts. The bill changes the formal finding of the court and so provides victims with the acknowledgement that the person was proven to have acted grievously, even if they lacked the intent to be guilty of the action.

The bill will rename the verdict of ‘not guilty on account of insanity’ to ‘the acts or omissions are proven but the defendant is not criminally responsible on account of insanity’. The revised language would acknowledge the offender did in fact commit the criminal act.

In addition, the bill provides certain victims of insane offenders with a right to be sent a copy of any certificate of clinical review stating that detention is no longer necessary. Those victims will then have a right to make a submission to the Minister about whether continued detention is necessary or, if relevant, to the Mental Health Review Tribunal for a review of the patient’s condition. Victims should be at the heart of our justice system and in the health system, which is why this bill will ensure that certain victims of legally insane offenders will also be notified of any unescorted leave of absence or unescorted overnight leave of absence from a secure health care facility into the community, rather than just the first such leave.

Clause by clause analysis

Clause 1 is the Title clause.

Clause 2 is the commencement clause. It provides that the Act comes into force six months after the date on which it receives the Royal assent.

Part 1Amendments to Criminal Procedure (Mentally Impaired Persons) Act 2003

Clause 3 identifies the Criminal Procedure (Mentally Impaired Persons) Act 2003 (the CPMIP Act) as the Act being amended in Part 1.

Clause 4 inserts new sections 20AAA to 20AAC into the CPMIP Act, which describes the procedure the court must follow when the defendant raises a defence of insanity or the court considers that the defendant’s sanity at the time of the offence should be determined. These sections make it clear that a defendant may only be found not guilty on account of insanity if it is first determined that the defendant committed the acts or omissions that constitute the offence. Also, they provide that when the court has determined that the defendant both committed the acts or omissions that constitute the offence and was insane at the time the offence was committed, the verdict that must be recorded is “the acts or omissions are proven but the defendant is not criminally responsible on account of insanity”.

Clause 5 amends section 20 of the CPMIP Act by deleting paragraph (1) (which is now covered by the new provisions in clause 4) and making it clear in the remaining paragraphs that any decision that the defendant is not guilty on account of insanity must be accompanied by a specific finding that the defendant committed the acts or omissions that constitute the offence.

Clause 6 amends section 31 of the CPMIP Act to specifically require the Minister of Health to consider the defendant’s own interests and the interests of public safety when considering whether continued detention is no longer necessary for a defendant found unfit to stand trial and detained as a special patient or special care recipient. It also requires the Minister to consider any submission from a victim who received a copy of the review certificate of a special patient or special care recipient.

Clause 7 amends section 33 of the CPMIP Act to provide certain victims of defendants found not guilty on account of insanity and detained as a special patient or special care recipient with a right to make a submission to the Minister about whether the defendant’s continued detention is necessary.

Part 2Amendments to Mental Health (Compulsory Assessment and Treatment) Act 1992

Clause 8 identifies the Mental Health (Compulsory Assessment and Treatment) Act 1992 (the MHCAT Act) as the Act being amended in Part 2.

Clause 9 amends section 77 of the MHCAT Act by requiring that, when a certificate of clinical review of a special patient found unfit to stand trial or found not guilty on account of insanity finds that it is no longer necessary to detain that patient, a copy of the certificate must be sent to certain victims registered under the Victims Rights Act 2002. It also provides that a statement of the legal consequences of those findings and of the victim’s right to apply to the Review Tribunal for a review of the patient’s condition must also be sent with the copy of the certificate.

Clause 10 amends section 80 of the MHCAT Act by requiring the Mental Health Review Tribunal to notify the Director of every application for review of the patient’s condition. The Director must then provide notice to certain relevant victims of that application. That notice must be accompanied by a statement of the legal consequences of the application and of the victim’s right to make a submission to the Review Tribunal.

Clause 11 inserts a new clause 3A into Schedule 1 of the MHCAT Act. The new clause provides that victims who receive a copy of a certificate of clinical review that finds that it is no longer necessary to detain a special patient may make a submission to the Review Tribunal about whether the patient should continue to be subject to a detention order.

Part 3Amendments to Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003

Clause 12 identifies the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003 (the IDCCR Act) as the Act being amended in Part 3.

Clause 13 amends section 93 of the IDCCR Act by requiring that, when a certificate of review of a special care recipient detained because they were acquitted on account of insanity finds that it is no longer necessary for the person to continue to be cared for as a special care recipient, a copy of that certificate must be sent to certain victims registered under the Victims Rights Act 2002.

Part 4Amendments to Victims’ Rights Act 2002

Clause 14 identifies the Victims’ Rights Act 2002 as the Act being amended in Part 4.

Clause 15 amends subsections 37(2)(b) and (ba) of the Victims’ Rights Act 2002 to require that the Director-General of Health must give certain victims reasonable prior notice of any unescorted leave of absence or any unescorted overnight leave of absence, rather than just the first of each such leave, as is currently required.

Hon Louise Upston

Rights for Victims of Insane Offenders Bill

Member’s Bill

129—1

Contents

Explanatory note
1Title
2Commencement
3Principal Act
4New sections 20AAA to 20AAC inserted (Procedure when question of insanity arises)
20AAAProcedure when question of insanity arises
20AABProcedure when first question is whether defendant committed acts or omissions
20AACProcedure when first question is whether defendant was insane at time of commission of offence
5Section 20 replaced (Finding of insanity)
20Other procedure relating to finding of insanity
6Section 31 amended (Change of status from special patient to patient or special care recipient to care recipient where person unfit to stand trial)
7Section 33 amended (Duration of order for detention as special patient or special care recipient if person acquitted on account of insanity)
8Principal Act
9Section 77 amended (Clinical reviews of certain special patients)
10Section 80 amended (Tribunal reviews of certain special patients)
11Schedule 1 amended (Procedural provisions relating to Review Tribunals)
3ARight of victim to make a submission
12Principal Act
13Section 93 amended (Where person considered not to require further care as special care recipient)
14Principal Act
15Section 37 amended (Notice of discharge, leave of absence, or escape or death of accused or offender who is compulsorily detained in hospital or facility)

The Parliament of New Zealand enacts as follows:

1 Title

This Act is the Rights for Victims of Insane Offenders Act 2019.

2 Commencement

This Act comes into force six months after the date on which it receives the Royal assent.

Part 1 Amendments to Criminal Procedure (Mentally Impaired Persons) Act 2003

3 Principal Act

This Part amends the Criminal Procedure (Mentally Impaired Persons) Act 2003 (the principal Act).

4 New sections 20AAA to 20AAC inserted (Procedure when question of insanity arises)

Before section 20, insert:

20AAA Procedure when question of insanity arises

If, at trial, the defendant raises a defence of insanity or the court considers (either on application by the prosecution or on its own initiative) that the defendant’s sanity at the time of the offence should be determined, the Judge must decide the order in which the following matters should be determined:

(a)

whether the defendant committed the acts or omissions that constitute the offence:

(b)

whether the defendant was insane at the time of the commission of the offence.

20AAB Procedure when first question is whether defendant committed acts or omissions

(1)

If the Judge decides that the first question to be determined is the question in section 20AAA(a) and the court finds beyond a reasonable doubt that the defendant committed the acts or omissions that constitute the offence,—

(a)

the Judge must record that finding; and

(b)

the court must proceed to determine the question in section 20AAA(b).

(2)

If the court then finds on a balance of probabilities that the defendant was insane at the time of the commission of the offence, the Judge must record a finding that the acts or omissions are proven but the defendant is not criminally responsible on account of insanity.

(3)

However, if the court does not find on the balance of probabilities that the defendant was insane at the time of the commission of the offence,—

(a)

the Judge must record that finding; and

(b)

the court must proceed to conclude the trial in the normal way.

(4)

If the Judge decides that the first question to be determined is the question in section 20AAA(a) and the court does not find beyond a reasonable doubt that the defendant committed the acts or omissions that constitute the offence, the Judge must—

(a)

record that finding; and

(b)

discharge the defendant.

20AAC Procedure when first question is whether defendant was insane at time of commission of offence

(1)

If the Judge decides that the first question to be determined is the question in section 20AAA(b) and the court finds that, on the balance of probabilities, the defendant was insane at the time of the commission of the offence,—

(a)

the Judge must record that finding; and

(b)

the court must proceed to determine the question in section 20AAA(a).

(2)

If the court then determines beyond a reasonable doubt that the defendant committed the acts or omissions that constitute the offence, the Judge must record a finding that the acts or omissions are proven but the defendant is not criminally responsible on account of insanity.

(3)

However, if the court does not find beyond a reasonable doubt that the defendant committed the acts or omissions that constitute the offence, the Judge must—

(a)

record that finding; and

(b)

discharge the defendant.

(4)

If the Judge decides that the first question to be determined is the question in section 20AAA(b) and the court does not find on the balance of probabilities that the defendant was insane at the time of the commission of the offence,—

(a)

the Judge must record that finding; and

(b)

the court just proceed to conclude the trial in the normal way.

5 Section 20 replaced (Finding of insanity)

Replace section 20 with:

20 Other procedure relating to finding of insanity

(1)

Before or at a trial, the Judge must record a finding that the acts or omissions are proven but the defendant is not criminally responsible on account of insanity if—

(a)

the defendant indicates that they intend to raise the defence of insanity; and

(b)

the prosecution agrees that the only reasonable verdict is not guilty on account of insanity; and

(c)

the Judge is satisfied—

(i)

beyond a reasonable doubt that the defendant committed the acts or omissions that constitute the offence; and

(ii)

on the basis of expert evidence and on the balance of probabilities 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.

(2)

If, at a trial before a jury, the defendant gives evidence as to their insanity and the jury finds the defendant not guilty, the Judge must ask the jury the following:

(a)

whether or not it finds that the defendant committed the acts or omissions that constitute the offence:

(b)

whether or not it finds that the defendant was insane at the time the offence was committed.

(3)

If, at a trial before a jury, it appears from the evidence that the defendant may have been insane at the time of the commission of the offence, and even if the defendant has not given evidence as to their insanity or put the question of their insanity in issue, the Judge may ask the jury to find—

(a)

whether the defendant committed the acts or omissions that constitute the offence; and

(b)

whether the defendant was insane within the meaning of section 23 of the Crimes Act 1961.

6 Section 31 amended (Change of status from special patient to patient or special care recipient to care recipient where person unfit to stand trial)

(1)

In section 31(3)(a), after “no longer necessary”, insert “in the defendant’s own interests or in the interests of the safety of the public or the safety of a person or class of person”.

(2)

After section 31(3), insert:

(3A)

Before making a direction under section 31(3)(b), the Minister must consider any submission about the continued detention of the defendant from a victim who was sent a copy of the certificate of clinical review under sections 77(3)(ca) or section 77(4)(c)(ii) of the Mental Health (Compulsory Assessment and Treatment) Act 1992 or of the certificate of the specialist assessor under section 93(1)(b) of the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003.

7 Section 33 amended (Duration of order for detention as special patient or special care recipient if person acquitted on account of insanity)

After section 33(4), insert:

(4A)

Before making a direction under section 33(3)(b), the Minister must consider any submission about the continued detention of the defendant from a victim who was sent a copy of the certificate of clinical review under sections 77(3)(ca) or section 77(4)(c)(ii) of the Mental Health (Compulsory Assessment and Treatment) Act 1992 or of the certificate of the specialist assessor under section 93(1)(b) of the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003.

Part 2 Amendments to Mental Health (Compulsory Assessment and Treatment) Act 1992

8 Principal Act

This Part amends the Mental Health (Compulsory Assessment and Treatment Act 1992 (the principal Act).

9 Section 77 amended (Clinical reviews of certain special patients)

(1)

After section 77(3)(c), insert:

(ca)

in any case where the responsible clinician is of the opinion that the patient is still unfit to stand trial but it is no longer necessary that the patient should be subject to the order of detention as a special patient, the clinician shall also send a copy of the certificate of clinical review to every victim to whom section 37 of the Victims Rights Act 2002 applies, or his or her representative:

(2)

Replace section 77(4)(c), with:

(c)

in any case where the responsible clinician is of the opinion that the patient’s condition no longer requires, either in the patient’s own interest or for the safety of the public, that he or she should be subject to the order of detention as a special patient, that clinician shall also send a copy of the certificate of clinical review to—

(i)

the Minister of Health for the purposes of section 33 of the Criminal Procedure (Mentally Impaired Persons) Act 2003; and

(ii)

every victim to whom section 37 of the Victims Rights Act 2002 applies, or his or her representative:

(3)

After section 77(4), insert:

(5)

Any copy of a certificate of clinical review sent to a victim under section 77(3)(ca) or section 77(4)(c)(ii) must be accompanied by a statement of the legal consequences of the finding set out in the certificate and of the victim’s rights to—

(a)

apply under section 80 to the Review Tribunal for a review of the patient’s condition; and

(b)

make a submission under section 33(4A) of the Criminal Procedure (Mentally Impaired Persons) Act 2003 to the Minister concerning whether the patient’s continued detention is necessary.

10 Section 80 amended (Tribunal reviews of certain special patients)

After section 80(2), insert:

(2A)

The Review Tribunal must notify the Director of applications under section 80(1) for a review of the patient’s condition.

(2B)

In relation to each notification of an application under section 80(2A), the Director must, as soon as practicable, send a victim of the patient to whom section 37 of the Victims Rights Act 2002 applies, or his or her representative, the following:

(a)

notice of the application under section 80(1) for review of the patient’s condition:

(b)

a statement of the legal consequences of the application and of the victim’s right to make a submission to the Review Tribunal on the application.

11 Schedule 1 amended (Procedural provisions relating to Review Tribunals)

After clause 3 of Schedule 1, insert:

3A Right of victim to make a submission

Any victim to whom a copy of the certificate of clinical review is sent under section 77(3)(ca) or section 77(4)(c)(ii) may provide a submission to the Tribunal about whether the patient should continue to be subject to the order of detention as a special patient.

Part 3 Amendments to Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003

12 Principal Act

This Part amends the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003 (the principal Act).

13 Section 93 amended (Where person considered not to require further care as special care recipient)

(1)

Replace section 93(1) with:

(1)

If a certificate in the form required by section 92 states the opinion specified in subsection (2)(b) of that section, the co-ordinator must—

(a)

forward the certificate to the Minister for the purposes of section 33 of the Criminal Procedure (Mentally Impaired Persons) Act 2003; and

(b)

give or send a copy of the certificate to every victim to whom section 37 of the Victims Rights Act 2002 applies, or their representative.

(2)

In section 93(2), replace “subsection (1)” with subsection (1)(a).

(3)

After section 93(2), insert:

(3)

A copy of the certificate sent to a victim under section 93(1)(b) must be accompanied by the following:

(a)

a statement of the legal consequences of the finding set out in the certificate

(b)

a statement of the victim’s right to make a submission under section 33(4A) of the Criminal Procedure (Mentally Impaired Persons) Act 2003 to the Minister concerning whether the patient’s continued detention is necessary.

Part 4 Amendments to the Victims’ Rights Act 2002

14 Principal Act

This Part amends the Victims’ Rights Act 2002 (the principal Act).

15 Section 37 amended (Notice of discharge, leave of absence, or escape or death of accused or offender who is compulsorily detained in hospital or facility)

(1)

In section 37(2)(b), replace “the first” with “any”.

(2)

In section 37(2)(ba), replace “the first” with “any”.