Rights for Victims of Insane Offenders Bill - NZ Legislation
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Rights for Victims of Insane Offenders Bill
Member’s Bill
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 ver-
dict 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 descrip-
tion 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 neces-
sary. 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
129—12 Rights for Victims of Insane Offenders Bill Explanatory note
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 1
Amendments 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 com-
mitted 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 ver-
dict 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 defend-
ants found not guilty on account of insanity and detained as a special patient or spe-
cial care recipient with a right to make a submission to the Minister about whether the
defendant’s continued detention is necessary.Explanatory note Rights for Victims of Insane Offenders Bill 3
Part 2
Amendments 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 con-
dition 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 consequen-
ces 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 3
Amendments 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 4
Amendments 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 prior4 Rights for Victims of Insane Offenders Bill Explanatory note 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
Contents
Page
1 Title 2
2 Commencement 2
Part 1
Amendments to Criminal Procedure (Mentally Impaired
Persons) Act 2003
3 Principal Act 2
4 New sections 20AAA to 20AAC inserted (Procedure when 2
question of insanity arises)
20AAA Procedure when question of insanity arises 2
20AAB Procedure when first question is whether defendant 3
committed acts or omissions
20AAC Procedure when first question is whether defendant was 3
insane at time of commission of offence
5 Section 20 replaced (Finding of insanity) 4
20 Other procedure relating to finding of insanity 4
6 Section 31 amended (Change of status from special patient to 5
patient or special care recipient to care recipient where person unfit
to stand trial)
7 Section 33 amended (Duration of order for detention as special 5
patient or special care recipient if person acquitted on account of
insanity)
Part 2
Amendments to Mental Health (Compulsory Assessment and
Treatment) Act 1992
8 Principal Act 5
129—1 1cl 1 Rights for Victims of Insane Offenders Bill
9 Section 77 amended (Clinical reviews of certain special patients) 5
10 Section 80 amended (Tribunal reviews of certain special patients) 6
11 Schedule 1 amended (Procedural provisions relating to Review 6
Tribunals)
3A Right of victim to make a submission 7
Part 3
Amendments to Intellectual Disability (Compulsory Care and
Rehabilitation) Act 2003
12 Principal Act 7
13 Section 93 amended (Where person considered not to require 7
further care as special care recipient)
Part 4
Amendments to the Victims’ Rights Act 2002
14 Principal Act 7
15 Section 37 amended (Notice of discharge, leave of absence, or 8
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 5
Royal assent.
Part 1
Amendments to Criminal Procedure (Mentally Impaired Persons)
Act 2003
3 Principal Act 10
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: 15
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
2Rights for Victims of Insane Offenders Bill Part 1 cl 4
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 5
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 10
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 15
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 20
(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— 25
(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 30
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 com- 35
mitted 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.
3Part 1 cl 5 Rights for Victims of Insane Offenders Bill
(3) However, if the court does not find beyond a reasonable doubt that the defend-
ant committed the acts or omissions that constitute the offence, the Judge
must—
(a) record that finding; and
(b) discharge the defendant. 5
(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. 10
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 insan- 15
ity 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 20
(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 25
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 follow-
ing:
(a) whether or not it finds that the defendant committed the acts or omis- 30
sions 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 35
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—
4Rights for Victims of Insane Offenders Bill Part 2 cl 9
(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 5
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: 10
(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 Assess-
ment and Treatment) Act 1992 or of the certificate of the specialist assessor 15
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: 20
(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 Assess-
ment and Treatment) Act 1992 or of the certificate of the specialist assessor 25
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 30
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: 35
(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
5Part 2 cl 10 Rights for Victims of Insane Offenders Bill
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 sec-
tion 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 5
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 clin-
ical review to—
(i) the Minister of Health for the purposes of section 33 of the Criminal 10
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 15
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 20
(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: 25
(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 sec-
tion 37 of the Victims Rights Act 2002 applies, or his or her representative, the 30
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 vic-
tim’s right to make a submission to the Review Tribunal on the applica- 35
tion.
11 Schedule 1 amended (Procedural provisions relating to Review Tribunals)
After clause 3 of Schedule 1, insert:
6Rights for Victims of Insane Offenders Bill Part 4 cl 14
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. 5
Part 3
Amendments to Intellectual Disability (Compulsory Care and
Rehabilitation) Act 2003
12 Principal Act
This Part amends the Intellectual Disability (Compulsory Care and Rehabilita- 10
tion) 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 15
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. 20
(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 accom-
panied by the following:
(a) a statement of the legal consequences of the finding set out in the certifi- 25
cate
(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 deten-
tion is necessary. 30
Part 4
Amendments to the Victims’ Rights Act 2002
14 Principal Act
This Part amends the Victims’ Rights Act 2002 (the principal Act).
7Part 4 cl 15 Rights for Victims of Insane Offenders Bill
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”. 5
Wellington, New Zealand:
Published under the authority of the House of Representatives—2019
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