Supplementary Order Paper No 37

No 37

House of Representatives

Supplementary Order Paper

Tuesday, 12 June 2018

Military Justice Legislation Amendment Bill

Proposed amendments

Hon Ron Mark, in Committee, to move the following amendments:

New clause 13A

After clause 13 (page 7, after line 33), insert:

13A Section 188 amended (When Court may find accused unfit to stand trial)

Repeal section 188(2) to (4) and (6).

Clause 14

Before clause 14(1) (page 7, before line 35), insert:

(1AA)

In section 188A(1), replace “If the Court Martial records a finding of the kind specified in section 188(6), the Court must” with “In order to determine whether an accused is unfit to stand trial, the Court Martial must”.

New clause 14A

After clause 14 (page 8, after line 3), insert:

14A New sections 188C to 188E inserted

After section 188B, insert:

188C Inquiry before trial into accused’s involvement in offence

(1)

This section applies if, before trial, the accused is found unfit to stand trial.

(2)

The Court Martial must decide whether the Court is satisfied, on the balance of probabilities, that the evidence against the accused 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.

(3)

A special hearing must be held to ascertain whether the Court Martial is satisfied of the matter specified in subsection (2).

188D Inquiry during trial into accused’s involvement in offence

(1)

This section applies if, during a trial, the accused is found unfit to stand trial.

(2)

The Court Martial must decide whether the Court is satisfied, on the balance of probabilities, that the evidence against the accused 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.

(3)

For the purposes of subsection (2), the Court Martial 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 trial:

(b)

hear any new evidence.

188E Outcome of consideration of accused’s involvement

(1)

If the Court Martial is not satisfied of the matter specified in section 188C(2) or 188D(2),—

(a)

the Court must record a finding of not guilty on the charge:

(b)

the finding that the accused is unfit to stand trial is deemed for all legal purposes to have been quashed.

(2)

If the Court Martial is satisfied of the matter specified in section 188C(2) or 188D(2), the Court must—

(a)

record a finding to that effect; and

(b)

proceed to deal with the accused under section 191.

Explanatory note

This Supplementary Order Paper (SOP) amends Part 1 of the Military Justice Legislation Amendment Bill. Part 1 of the Bill amends the Armed Forces Discipline Act 1971. The amendments set out in this SOP relate to Part 10 of that Act, which provides for the situation where a person accused of an offence against that Act is, or may be, mentally impaired.

Under Part 10 of the Armed Forces Discipline Act 1971, the Court Martial must first consider whether the evidence presented by the prosecution 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 (the involvement inquiry). If the Court Martial is satisfied that the accused caused the relevant act or omission, the Court Martial must then consider whether the accused is mentally impaired (the fitness inquiry).

The order of these 2 inquiries under the Armed Forces Discipline Act 1971 reflects the order of the 2 inquiries that a Court must make in relation to a defendant in the general criminal justice system under the Criminal Procedure (Mentally Impaired Persons) Act 2003. However, the Courts Matters Bill will, when enacted, switch the order of the 2 inquiries in the Criminal Procedure (Mentally Impaired Persons) Act 2003, so that the fitness inquiry precedes the involvement inquiry. The effect of this SOP is to switch the order of the 2 inquiries in Part 10 of the Armed Forces Discipline Act 1971 to align the military justice system with the criminal justice system in this respect.

Departmental disclosure statement

The New Zealand Defence Force considers that a departmental disclosure statement is not required to be prepared for this Supplementary Order Paper.