This project reviewed the criminal defence of insanity (section 23 of the Crimes Act 1961), and Ministerial release arrangements for patients detained on the grounds of insanity or unfitness to stand trial.A final report was published and tabled in Parliament in December 2010.
Terms of reference
The Law Commission has been directed to review the current defence of insanity (section 23 of the Crimes Act 1961) and in particular to consider:
- Whether the defence is appropriate in its nature and scope.
- If not, whether it should be abolished or modified.
- The way in which the defence should be put to and considered by the court.
- Issues relating to the burden and standard of proof.
In relation to partial defences, the Commission has been asked to further consider issues arising from its recommendations in Some Criminal Defences with Particular Reference to Battered Defendants, including:
- Will the repeal of partial defences unduly disadvantage persons with mental illness or disability, battered defendants, and any other minority groups who may be particularly reliant on such defences?
- Undertake gender analysis of the current operation of partial defences, and in light of this, consider the gender implications of the recommendation for partial defence repeal.
- Is there a risk of unduly harsh sentences under section 102 of the Sentencing Act as currently drafted (and should the section therefore be amended) if partial defences are repealed?
- Is the stigma of a murder conviction appropriate for persons who have acted by reason of adverse circumstances for which society may feel some sympathy?
- Should there be a separate defence for battered defendants, in addition to or instead of current defences?
In relation to infanticide, not previously considered by the Commission:
- Are the current criteria for the defence as provided for in section 178 of the Crimes Act appropriate?
- The significance (if any) of its character as a hybrid offence/partial defence – eg, should infanticide be included consistent with the Law Commission recommendation to repeal provocation and not to introduce diminished responsibility, or did Parliament intend in framing it as a hybrid offence/partial defence to signal a unique status.
- Reform options including whether section 178 should be repealed.
Mental Impairment Decision-Making and the Insanity Defence (NZLC R120, 2010)
The Commission's Report, Mental Impairment Decision-Making and the Insanity Defence (NZLC R120, 2010) recommends a new decision-making framework for special patients, special care recipients, and restricted patients. Currently, their discharge, reclassification, and long leave for more than 7 days is dealt with by Ministers (the Minister of Health and, sometimes, the Attorney-General). Instead, we recommend a new Tribunal, the removal of the Minister of the Health from the process, and some slight modification to the Attorney-General’s functions.
The report also reviews the insanity defence in section 23 of the Crimes Act 1961. The defence, despite being quite old-fashioned, is generally thought to be working as well as could be promised by any of the available reform options. All of the options are flawed, in one way or another. No change to the defence is proposed.
The Government agreed with the Commission’s key recommendation that changes should not be made to the defence of insanity. The Government also agreed there are issues with Ministerial decision-making under the Criminal Procedure (Mentally Impaired Persons) Act 2003 and the recommendation instead for an independent tribunal has merit, as do the other recommendations for reform to the Act and other legislation.