Freed after being unfit for trial

A Gisborne woman who has walked free because she was deemed unfit to stand trial has exposed a flaw in legislation that many, including Chief Justice Sian Elias, say needs fixing urgently.

The woman faced charges of assault with a weapon, disorderly behaviour, resisting police, and refusing to give blood.

The charges arose from two separate incidents in Gisborne and Rotorua. The Gisborne incident involved her attacking a stranger sitting in his car while claiming that he was driving a ‘‘white person’s car’’. She hit him in the head with a hospital crutch and caused profuse bleeding.

Health assessors found the woman, 49, was unfit to stand trial but that if she had been fit she may have a defence of insanity. The court ordered a further doctor’s report under the Criminal Procedure (Mentally Impaired Persons) Act 2003.

Under the act a court can still order that a defendant be detained in a hospital or a special care facility if it is in the public interest. Failing that the court can order that a defendant is treated as a patient under the Mental Health (Compulsory Assessment and Treatment) Act 1992 or as a care recipient under the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003.

But the doctor did not recommend the woman be detained, or that she be subject to a compulsory treatment order.

In fact, the doctor said the woman no longer showed symptoms of a mental disorder and that any order requiring treatment ‘‘could actually be harmful at this particular time’’.

So in the Gisborne District Court on Friday, the Crown was left with no option but to say the woman should be released immediately.

In doing so, the Crown noted remarks made by Justice Lang and Justice Moore in recent decisions where they pointed out that the inability to impose any form of support or oversight for people released in similar circumstances exposed a ‘‘serious shortcoming in the statutory regime’’ that required the attention of Parliament ‘‘as a matter of urgency’’. As it stands, the court cannot order a defendant to be released subject to conditions.

Chief Justice Sian Elias has echoed the same view, and in a submission to the justice committee currently considering the Court Matters Bill she said this was a deficiency that needed ‘‘immediate resolution’’.

Dame Elias said the solution was straightforward and, as noted by Justice Lang, simply required adding the words ‘‘upon such conditions as the court may deem fit’’ at the end of a particular clause in the act.

But the justice committee’s final report on the bill did not include the proposed alteration, with the Justice Ministry saying such a change required further work.