Graeme Edgeler: New Zealand’s worst law

Graeme Edgeler: New Zealand’s worst law


Last week, New Zealand’s newly-elected MPs met in Wellington to be sworn in. A day later, they trooped back to hear the speech from the throne: the just-after-the-election speech by the Governor-General setting out the new government’s priorities. This week, Parliament has been meeting under urgency to start on the new government’s programme.

The speech from the throne only ever covers the highlights, and this year, those were obvious. It will never mention everything, and beyond COVID (and the economy) there will be other work going on in the background, some from the Labour government, and some filtered up to it from the public service. Unmentioned in the speech from the throne was the topic of this piece. This is not surprising, but I hope the Ministry of Justice is working on it. If it isn’t, it should start. This is New Zealand’s worst law, and fixing it should be a priority.

For once, I haven’t drafted a member’s bill – this is one of those laws that would benefit from more than a few hours’ work, and while there’s a good chance you have never heard of the Criminal Procedure (Mentally Impaired Persons) Act, it is truly offensive to the rule of law, and has obviously been so for some time which is now becoming clearer to the Courts.

I have called the Maori Community Development Act 1962 – which has criminal offences that can only be committed by Māori – “New Zealand’s Most Racist Law”
, but the worst bits of that law have not been used in a very long time. I’m not sure of the extent to which they ever used.

This law is different. It is, sadly, also quite recent. And worse still, it gets repeated use, resulting in people spending substantial terms in detention, sometimes even when the rule of law would say they should not.
The rule of law is fundamental to democracy, and perhaps its most important requirement is equality before the law: society may not treat everyone as equal, but the law should.

There are important ways the law has failed to provide this equality – for many years, people with certain disabilities were unable to cast secret ballots, relying on polling staff or family to assist them, who would know how they vote. Telephone dictation voting has fixed this for many. In other areas the law still falls short.

This is the worst way in which it does. This law is bad not only because it is bad, but because the government has been told that it is bad on multiple occasions, including more than once, in judgements of New Zealand’s senior courts, with a particularly poignant instance in September, with a man named Joshua, who may have saved his brother’s life, and ended up charged with murder.

The background is complicated, but importantly Joshua found himself present when a group of at least three men, possibly more, were viciously attacking his brother, including punches and kicks to the head, while Joshua’s brother was prone on the ground. Outnumbered, and with limited options (so the judge found), Joshua used a knife to end the assault, stabbing one man in the defence of his brother, and stabbing a second when the assailants turned on him. One man died, and Joshua faced one charge or murder, and one of attempted murder.

This is a bad situation for anyone to be in. It was worse for Joshua, who has a cognitive impairment. The High Court determined that, even with communication assistance, he would not be able to participate meaningfully in the legal process that had commenced, and he was found “unfit” to stand trial.
The Criminal Procedure (Mentally Impaired Persons) Act 2003 sets out the process for determining that, and for what happens after such a finding, instead of a trial. And instead of trial, there is a hearing. There is no jury, and the assessment the judge is making isn’t looking at whether the offence itself was committed, but whether the person charged “caused the act or omission that forms the basis of the offence”. This can present a problem – in some offences the knowledge or intention requirement is so intrinsic to an offence that it is artificial and unfair to separate them – and has resulted in calls for law changes from judges and others.

But although this presents a difficulty in the case, it isn’t the big rule of law concern here. The problem is that the standard of proof differs. And it’s important, because orders made under the Criminal Procedure (Mentally Impaired Persons) Act can include result in compulsory detention in a mental hospital or a similar institution, potentially for as long (or even longer) than the applicable prison sentence.
The defence argued on Joshua’s behalf was that he was acting first in defence of another person, and then in self-defence. New Zealand law recognises that self-defence is a good thing. People do not have to stand by when they feel someone else’s life is illegally threatened. And if it was you or I, the law would even say that we are entitled to an acquittal if it was merely “reasonable possible” we were acting in self-defence.
The law does not say this about Joshua, or anyone with a disability like his. When an intellectually disabled person, or other person with a cognitive impairment that prevents them attaining a fair trial faces the quasi trial that determines whether they are detained (potentially indefinitely) they don’t get the benefit of reasonable doubt. All the crown has to do is establish the act that forms the basis of the offence, and disprove any possible defences on “the balance of probabilities”.

The Bill of Rights forbids unjustified discrimination on the grounds of intellectual disability, and the protections it contains are supposed to have a special place in the protection of the most vulnerable members of society. This should not include lowering the standard of proof needed to detain someone. This is especially so when the term of that detention can substantially exceed the maximum that would apply to someone who was actually convicted.

This discrimination is far from the only problem with the criminal justice system as it applies to those with cognitive difficulties, but it is the most glaring. And the Courts know it:

“[49] … the application of the civil standard of proof is deeply troubling.

[50] The facts of this case demonstrate the dilemma. In an ordinary criminal trial, the Crown would have to disprove self-defence beyond reasonable doubt before a conviction on the murder and attempted murder charges could be secured. At the involvement hearing however, the Crown must only do so on the balance of probabilities. This could lead to a situation where, but for Joshua’s cognitive disabilities, he may have been acquitted of all the charges at trial and be free to go. Yet, because of his disabilities and the lesser standard of proof, he may be found to be involved in serious criminal offending and exposed to the risk of detention for up to 10 years. That scenario starts to look like unfair discrimination on account of a disability. I consider the standard of proof that applies in an involvement hearing warrants urgent legislative attention.”

So do I.

And so should the Government. And even without this being a priority of the type to make it into the speech from the throne, it should make fixing this law – New Zealand’s worst – a priority.


Graeme Edgeler is a Wellington barrister, with a professional interest in constitutional and electoral law

This article can be republished under a Creative Commons CC BY-ND 4.0  license. Attributions should include a link to the Democracy Project.