MAANGI v R [2017] NZCA 534

MAANGI v R [2017] NZCA 534 [21 November 2017]ORDER PROHIBITING PUBLICATION OF THE JUDGMENT AND ANYPART OF THE PROCEEDINGS (INCLUDING THE RESULT) IN NEWSMEDIA OR ON THE INTERNET OR OTHER PUBLICLY AVAILABLEDATABASE UNTIL FINAL DISPOSITION OF TRIAL. PUBLICATION INLAW REPORT OR LAW DIGEST PERMITTED.IN THE COURT OF APPEAL OF NEW ZEALANDCA635/2016[2017] NZCA 534BETWEEN ESTHER RAWINIA TE HIREREMAANGIAppellantAND THE QUEENRespondentHearing: 27 September 2017Court: Winkelmann, Brown and Gilbert JJCounsel: D H P Schellenberg for AppellantC A Brook and J A Eng for RespondentJudgment: 21 November 2017 at 11.30 amJUDGMENT OF THE COURTA The appeal is dismissed.B The questions of law are answered as follows:(i) Prior to a determination being made in the course of a pre-trialhearing under s 10 of the Criminal Procedure (Mentally ImpairedPersons) Act 2003 as to a defendant's involvement in terms ofs 13(1) a Judge has power to grant leave to the prosecutor towithdraw charges under s 146(1) of the Criminal Procedure Act2011.(ii) As the Judge had not reached the point of making a determinationunder s 13(1) he was not obliged to decline to consider anapplication for leave to withdraw charges and proceed todetermine the issue on the materials before him.C Order prohibiting publication of the judgment and any part of theproceedings (including the result) in news media or on the internet orother publicly available database until final disposition of trial.Publication in law report or law digest permitted.____________________________________________________________________REASONS OF THE COURT(Given by Brown J)Introduction[1] The appellant, Ms Maangi, appeals against a decision of Judge Couch grantingthe police leave to withdraw charges against her during the course of a hearing intoher fitness to stand trial.[2] In September 2015 Ms Maangi faced a number of charges in the District Courtat the North Shore. Questions arose over Ms Maangi's fitness to stand trial and ahearing was convened under s 10 of the Criminal Procedure (Mentally ImpairedPersons) Act 2003 (the Act) to address that question. The first stage of that processinvolved the court being satisfied of the defendant's involvement in the acts alleged.During the course of that involvement hearing, the Judge expressed what he describedas "preliminary views" that there was insufficient evidence to be satisfied of MsMaangi's involvement in the offences alleged. He then gave the police leave towithdraw charges if they wished to do so, and, consequently, six of the 12 chargeswere withdrawn.[3] Ms Maangi challenges Judge Couch's ability to do so in the context of aninvolvement hearing under the Act. The appeal is brought under s 296 of the CriminalProcedure Act 2011, with this Court granting leave on two related questions of law:1Whether, in the circumstances of the case:(i) The Judge had power to grant leave to the prosecutor towithdraw the charges or was the Judge obliged to dismisscharges for insufficiency of evidence of the appellant'sinvolvement for s 9 purposes?(ii) Alternatively, was the Judge obliged to determine the s 9 issueon the materials before him?[4] The appeal raises issues concerning the interpretation of the fitness to standtrial provisions under subpt 1 of pt 2 the Act (the subpt 1 procedure) and the interactionof those provisions with the usual trial procedures under the Criminal Procedure Act.The overriding question is whether, under the provisions of both the Act and theCriminal Procedure Act, Judge Couch had the power to grant leave to withdraw thecharges. Within that, three main issues emerge:(i) The first is whether the usual Criminal Procedure Act provisions, suchas the ability to grant leave to withdraw charges, continue to operatealongside the subpt 1 procedure, or whether the subpt 1 procedureconstitutes a "mini code" that supersedes or overrides these usualprovisions.(ii) The second is whether the jurisdiction to grant leave to withdraw thecharges under s 146(1) of the Criminal Procedure Act "before the trial"continues to exist once the subpt 1 procedure has commenced, orwhether the subpt 1 procedure constitutes a "trial" in and of itself.(iii) The third is whether the Judge had in fact made the requisitedetermination under the subpt 1 procedure that there was insufficientevidence of Ms Maangi's involvement in the charges alleged, and1 Maangi v R [2017] NZCA 156.whether the granting of leave to withdraw the charges was therefore anabuse of process.[5] In order to make sense of the background that led to the withdrawal of thecharges, we first set out the relevant statutory framework that governs the process ofdetermining a defendant's fitness to stand trial.Statutory framework[6] When an issue arises whether a defendant is unfit to stand trial, the two-stagesubpt 1 procedure applies:(i) First, the court must be satisfied on the balance of probabilities that theevidence establishes the defendant's involvement in the offence per s 9of the Act. This is commonly referred to as the "involvement hearing".If the court is not satisfied, the court must dismiss the charge againstthe defendant under s 147 of the Criminal Procedure Act.2(ii) Second, if the court is satisfied of the defendant's involvement, thecourt must then proceed to make a determination whether the defendantis unfit to stand trial in accordance with s 14 of the Act.[7] An inquiry into the defendant's fitness to stand trial can occur at any stage inthe trial process. Relevantly for present purposes, when the question arises beforetrial, s 10 of the Act applies and provides:10 Inquiry before trial into defendant's involvement in the offence(1) This section applies if the question whether the defendant is unfit tostand trial arises before the trial.(2) The court must ascertain whether the court is satisfied of the matterspecified in section 9.(3) For the purposes of subsection (2), the court may consider—(a) any formal statements that have been filed under section 85of the Criminal Procedure Act 2011:2 Criminal Procedure (Mentally Impaired Persons) Act 2003, s 13(2).(b) any oral evidence that has been taken in accordance with anorder made under section 92 of the Criminal Procedure Act2011:(c) any other evidence that is submitted by the prosecutor ordefendant.Analogous provisions address the inquiry at both Judge-alone3 and jury trials.4Ms Maangi's argument places emphasis on the presence of the word "must" in subs(2) of each those provisions.[8] The "matter specified in section 9" is as follows:9 Court must be satisfied of defendant's involvement in offenceA court may not make a finding as to whether a defendant is unfit tostand trial unless the court is satisfied, on the balance of probabilities,that the evidence against the defendant is sufficient to establish thatthe defendant caused the act or omission that forms the basis of theoffence with which the defendant is charged.[9] The potential outcomes of a s 9 hearing are explained in s 13:13 Outcome of consideration of defendant's involvement(1) When the court has ascertained, in accordance with any of sections 10 to12, whether the court is satisfied of the matter specified in section 9,the court must record its finding on the matter.(2) If the court is not satisfied of the matter specified in section 9, the courtmust dismiss the charge against the defendant under section 147 ofthe Criminal Procedure Act 2011.(3) [Repealed](4) If the court is satisfied of the matter specified in section 9, the court mustproceed to determine the matters specified in section 14.The consequence of a dismissal of a charge under s 147 of the Criminal Procedure Actis that the defendant is deemed to be acquitted on that charge.[10] The effect of a finding under s 13(2) of the Act was altered by the enactmentof the Criminal Procedure (Mentally Impaired Persons) Amendment Act 2011.3 Section 11.4 Section 12.Because it is relevant to the argument we heard, we also set out the form of s 13(2)and (3) prior to their amendment:(2) If the court is not satisfied of the matter specified in section 9, thecourt must discharge the defendant.(3) A discharge under subsection (2) does not amount to an acquittal.[11] Finally, we note the provision for the withdrawal of charges is found in s 146of the Criminal Procedure Act. It provides:146 Withdrawal of charge(1) The prosecutor may, with the leave of the court, withdraw a chargebefore the trial.(2) The withdrawal of a charge under this section is not a bar to any otherproceeding in the same matter.Relevant narrative[12] In July 2015 Ms Maangi was facing 12 charges summarised in the followingtable:Date of offending Date of charge Charge OriginalCRN No26 March 2015 28 March 2015 Driving whilst forbidden 1493Dangerous driving 14945 April 2015 10 April 2015 Receiving 1631Possessing cannabis 1632Driving whilst forbidden 163310 April 2015 Breach of bail 191621–23 April 2015 2 July 2015 Burglary 3281Conversion 3282Burglary 3283Burglary 3284Conversion 3285Burglary 3286[13] Following questions being raised concerning Ms Maangi's mental state, aninitial assessment report was prepared pursuant to s 38(1) of the Act. It concluded thatMs Maangi was suffering from psychotic illness. Consequently, an "involvementhearing" under s 9 was convened to ascertain whether the evidence against Ms Maangiwas sufficient to establish that she had caused the acts or omissions which formed thebasis of the offences with which she was charged.[14] That hearing took place before Judge Couch on 14 and 15 September 2015. Aminute dated 15 September 2015 records that initially the prosecutor sought anadjournment:5[6] Yesterday, the prosecutor sought an adjournment. It took some timeto fully understand the reasons why that was sought but the position thatemerged was this. There is no direct evidence of the defendant's involvementin a number of the offences alleged. The police have been relying onadmissions or other statements made by the defendant following her arrest.The admissibility of those statements is challenged by Mr Schellenberg onbehalf of the defendant. The police were seeking an adjournment partly inorder to obtain DNA evidence which might fill the gap in determining thedefendant's involvement in the alleged offences.[15] That adjournment was declined at the outset of the hearing on 14 September,with the Judge considering it was "unjust for the matter to be delayed by this defaulton behalf of the police" who had failed for two months to obtain a DNA sample fromMs Maangi.6 The manner in which the hearing proceeded on 14 September is recordedin the minute:[9] By agreement between the prosecutor and Mr Schellenberg,witness statements relied on by the police were all handed up with tworeservations.[10] The first was Mr Schellenberg's submission that, in light of the reportas to the defendant's mental state, the admissions made to police could not berelied on. He submits that they were either inadmissible or should be givenminimal weight.[11] Secondly, Mr Schellenberg sought an opportunity to cross-examineone police witness which he did. That was Sergeant Ross of whom he askedone question.[12] I attempted yesterday to make the necessary assessments under s 9 inthe course of the hearing but it became apparent that a more detailedconsideration of the statements tendered by police would be necessary.Accordingly I adjourned the hearing until today.5 New Zealand Police v Maangi DC North Shore CRI-2015-044-2375, 15 September 2015 (Minuteof Judge Couch).6 At [9].The minute records that on the morning of 15 September the Judge advised counselthat a complete analysis of the evidence had not been possible overnight but that hehad formed what he termed "some preliminary views" which might assist the parties.He indicated he found three of the charges proved to the required standard,7 butdescribed the evidence regarding the rest as ranging from "very little" to "no evidence at all".[16] The minute then went on to state:[21] At this stage I would be prepared to give the police leave to withdrawany charges they may wish to withdraw. That would then leave it open to thepolice to relay those charges if better evidence was obtained.[24] Now, I have said quite a lot there and I think it is probably best if Istand this matter down to enable the police to consider their position. I findon the material before me now that the three charges that were laid on 10 Aprilare proved to the required standard under s 9.[25] This is my preliminary view based on fairly detailed examination ofthe evidence but it is not my final view. I understand your submissionMr Schellenberg but the hearing is not completed yet. I adjourned the hearingyesterday. I am giving this indication partway through the hearing. When thehearing is concluded I must indeed, as you submit, reach a conclusion unders 9, on each charge, so if the police wish to maintain those charges then I willgive a final view on them.[26] I have considered that matter very carefully Mr Schellenberg. It is anappropriate course at any stage of any prosecution. If the police form the viewthat they are unable to establish the charges to the required standard, due toinsufficient evidence, then they should seek leave to withdraw it, and they maydo that if the Court grants leave. If the Police subsequently become aware ofadditional evidence which may prove the charges to the required standard thenit is open to them to lay the charges again.[17] The Judge stood the matter down for the police to consider their position.When the hearing reconvened, the police sought leave to withdraw six of the charges.8After hearing submissions from Mr Schellenberg in opposition, the Judge grantedleave to withdraw those charges.7 The charges that were laid on 10 April 2015: CRN 1631, 1632 and 1633.8 Those being the charges laid on 28 March 2015 (CRN 1493 and 1494) and four of the charges laidon 2 July 2015 (CRN 3281, 3282, 3283 and 3286).[18] In a subsequent ruling, also dated 15 September 2015, the Judge recorded hisreasons for granting leave to withdraw.9 In commenting on the status of the views hehad expressed during the in-chambers discussion, the Judge stated:[9] Finally, I deal with Mr Schellenberg's proposition that my preliminaryfindings are indeed final findings. That is not so. As I said this morning, Ihave spent some considerable time overnight looking at the material providedto me yesterday by way of witness statements handed up. I have been able todo a rather more thorough analysis than was possible whilst on the benchyesterday, but I have not yet had the benefit of submissions from the parties.[19] The Judge proceeded to hear submissions on the remaining six charges. Hefound that the evidence was sufficient to establish Ms Maangi had caused the acts oromissions which formed the basis of four charges (CRN 1631, 1632, 1633 and 3285),but not those giving rise to CRN 1916 or 3284. Accordingly, Ms Maangi wasdischarged on those two charges under s 147 of the Criminal Procedure Act.[20] The remaining four charges proceeded to the second stage of the subpt 1procedure under s 14 of the Act. Ms Maangi was found fit to stand trial on thosecharges.10 Subsequently, the six charges that were withdrawn with leave were re-laid.Ms Maangi now faces trial both on those charges and on the four on which the Judgefound evidential sufficiency in the s 9 hearing.Issues[21] Mr Schellenberg for Ms Maangi challenges the ability of the Judge to grantleave to the prosecutor to withdraw charges in the process of a s 9 hearing during afitness to stand trial determination. Mr Schellenberg's argument comprised the threedistinct propositions identified at the outset,11 namely that:(i) the subpt 1 procedure is a "mini code" such that, once the process iscommenced, it must continue to completion;9 New Zealand Police v Maangi [2015] NZDC 18423.10 New Zealand Police v Maangi [2016] NZDC 2612.11 At [4] above.(ii) the subpt 1 procedure constitutes a "trial" for the purposes of s 146(1)of the Criminal Procedure Act and hence the power to withdrawcharges under s 146 was unavailable to the Judge; and(iii) because the Judge had, in substance, ascertained that he was notsatisfied of the matter specified in s 9 the grant of leave to withdraw thecharges was an abuse of process.It is convenient to analyse the issues by reference to those propositions rather than toconstrain our analysis to the questions of law formulated in the leave decision. Wereturn to answer those questions at the end on the basis of this analysis.Is the subpt 1 procedure a "mini code"?Submissions[22] Mr Schellenberg commenced by emphasising that a s 9 hearing is an importantsafeguard to prevent the continuation of a criminal proceeding against a vulnerabledefendant when there is insufficient evidence to prove the actus reus on the balance ofprobabilities.12 No further investigation as to fitness is undertaken at that point as theprocess ends with dismissal pursuant to s 147.[23] He drew attention to the following part of the Judge's ruling:13[7] There are really only two alternatives to the course which it seems tome is just to adopt. One is that I decline leave to withdraw these charges. Inthat case it is quite probable that I would be compelled to dismiss them unders 13(3) of the Act. In the overall scheme of things, that may be entirely unjustin that, if the defendant is found fit to stand trial, then she will not have toanswer for actions she may well be responsible for.[8] The other alternative is that I adjourn this hearing for a period of someweeks or months to enable the police to obtain the further evidence they saymay be available. If I do that, it would be to the defendant's considerabledisadvantage. She will remain either in custody, or possibly on electronicallymonitored bail, for considerably longer than would otherwise be the case. Forthe reasons I gave earlier this morning that seems to me to be unjust.12 R v Antoine [2001] 1 AC 340 (HL) at 375–376; and R v Ardler [2004] ACTCA 4, (2004) 144 ACrim R 552 at [48]. We note that in both those jurisdictions the normal criminal standard of proofapplies.13 New Zealand Police v Maangi, above n 9.[24] Mr Schellenberg submitted that the reasoning at [7] was erroneous andcontrary to Parliament's intention. The wording of s 13 mandates a procedure to befollowed from beginning to end, and it is clear that Parliament contemplated one oftwo outcomes: the court is satisfied of involvement, in which case the s 14 fitnessassessment is embarked upon; or, the court is not so satisfied of involvement, in whichcase the defendant is to be discharged under s 147 of the Criminal Procedure Act.[25] In support of the contention that when the statutory fitness to stand trialprocedure is triggered the jurisdiction to withdraw charges is extinguished,Mr Schellenberg placed reliance on two decisions of this Court: R v McKay14 and R vTe Moni.15[26] In McKay, the appellant's trial counsel had raised questions over theappellant's fitness a week prior to trial. The Judge did not follow the subpt 1 procedurebut instead adjourned the trial, received two reports as to fitness and sanity, andprovided counsel with the opportunity to make an application for any order ordirections. No application having been made, the Judge considered the reports andsatisfied himself that the appellant was fit to stand trial.[27] The Judge's error in McKay was to move the fitness question (and indeed tofind the appellant fit) without following the statutory sequence. This Courtemphasised that, where the subpt 1 procedure has been triggered, that procedure andits sequencing must be followed:[42] The procedure having been triggered, Judge Joyce should haveproceeded to consider the s 9 question, namely whether he was satisfied, onthe balance of probabilities, that the evidence against Mr McKay wassufficient to establish that he had caused the acts forming the basis of theoffences with which he had been charged. Neither counsel has suggested thatthis was a case where that enquiry could or should have been postponed interms of s 8(1). Only if the judge had been satisfied on the s 9 matter couldhe then go on to determine Mr McKay's fitness to stand trial: s 13(4). It wasat that point that the health assessors' reports should have been obtained: s14(1).14 R v McKay [2009] NZCA 378, [2010] 1 NZLR 441.15 R v Te Moni [2009] NZCA 560.[28] In Te Moni an application for a finding that Mr Te Moni was unfit waswithdrawn before a s 9 decision was made. Allowing his appeal this Court held:16[45] In our view, it is clear that the Judge had not satisfied himself that MrTe Moni was fit to stand trial: rather, he had indicated a degree of comfortwith the withdrawal of the application given his views about Mr Te Moni'scapacity. In light of McKay, it was not correct for the Judge to allow thewithdrawal of the application: he needed to go on to consider it and make apositive finding. We do not accept that the steps he did undertake constitutesufficient compliance. In our view, there has been no finding for the purposesof s 9 and none for the purposes of s 14. The process has not been completedand, in light of this Court's decision in McKay and its later decision in R vDalley, a miscarriage has occurred. We therefore allow the appeal on thisbasis.[29] It followed that, in Mr Schellenberg's submission, the Judge did not havepower at the conclusion of the evidence to grant the police leave to withdraw thecharges. The Judge was obliged to make a determination and complete the procedureunder s 13 of the Act, either by moving to the fitness assessment or by discharging MsMaangi.[30] For the Crown, Ms Brook accepted that, once triggered, the subpt 1 proceduremust be concluded in the order specified. However, she submitted that the mandatorysequence for determining whether a defendant is unfit to stand trial does not create aspecial procedural regime in which none of the normal criminal procedure rules apply.[31] Ms Brook contended that the Court's ordinary powers remain available to itprovided they are not inconsistent with the purpose of the subpt 1 procedure.Obviously a Court could not receive a guilty plea and proceed to sentencing while the"cloud" over fitness to stand trial continued to hang over the defendant.17 The abilityto plead guilty is something that is very much impacted by a defendant's mental stateand fitness to stand trial. However, in her submission it was equally obvious that otherprocedural powers, which are not dependent on a defendant's fitness to stand trial,must still be available to the Court. For example, a Judge must still be able to exercisethe power to issue a warrant for the arrest of a defendant who failed to appear.16 R v Te Moni, above n 15 (citations omitted).17 This term was coined in R v Dalley [2009] NZCA 419 where successive s 38 reports were orderedand received. The second report was regarded as definitive and the appellant was permitted toenter guilty pleas without a fitness hearing taking place.[32] Ms Brook made the further point that it was only by chance that this issue arosein this case. If any of the offences with which Ms Maangi was charged had beenCrown prosecutions,18 the Crown Solicitor would have had the ability to withdraw thecharges by way of filing a notice, without requiring the leave of the Court.19 It wassuggested that the interpretation advanced by the appellant would have the effect ofcreating two different sets of procedural rules in respect of matters under the Actdepending on the identity of the prosecutor.Analysis[33] We consider that there is force in the distinction which Ms Brook drew. Wesee no reason in principle why such of the Court's procedures which are notinconsistent with the statutory procedure should be suspended. The reason for theprinciple in McKay, that once the process has been properly commenced it must becompleted, is that until a fitness to plead assessment has been made the Court cannotbe satisfied that a defendant is capable of giving instructions to his or her lawyer.20[34] The withdrawal of a charge by the prosecutor is not in any way dependent ona defendant's fitness to stand trial. We consider that the power to grant leave towithdraw under s 146 subsists independently of the Act until the Judge makes adetermination about the defendant's involvement in terms of s 13(1). At that point,however, the Judge is obliged to either dismiss the charge or proceed to the unfitnessenquiry in s 14.Does the subpt 1 procedure amount to a "trial"?Submissions[35] Mr Schellenberg submitted that a s 9 hearing is a form of trial, subject to thenormal fair trial protection under s 25(a) of the New Zealand Bill of Rights Act 1990.In support of this contention he drew attention to this Court's observation in Te Monithat the subpt 1 procedure requires an accused person to undergo "a form of trial" as18 As set out in reg 4 of the Crown Prosecution Regulations 2013.19 Criminal Procedure Act 2011, s 192.20 As articulated in R v Te Moni, above n 15, at [39].part of a process to determine fitness to stand trial.21 Therefore, even if the usualprocedures under the Criminal Procedure Act continue to operate, s 146 wasunavailable to the Judge because, the s 9 hearing having commenced, it was no longer"before the trial".Analysis[36] The comment in Te Moni reflects the fact that in a s 9 inquiry the Court's taskis to ascertain whether the actus reus is established, albeit to the civil and not thecriminal standard of proof. We do not see it as establishing a wider definition of "trial"that is applicable to the interpretation of s 146 of the Criminal Procedure Act.[37] While there is no definition of "trial" in the Act itself, the Criminal ProcedureAct defines it in this manner:22(i) in subpart 1 of Part 4, means a Judge-alone trial:(ii) in subpart 2 of Part 4, means a jury trial:(iii) in the other provisions of this Act, means a Judge-alone trial or jurytrial.Definitions of "judge-alone trial" and "jury trial" identify the respective applicableparts of the statute.[38] A definition of "before the trial" is also provided:23(i) in the case of a Judge-alone trial, before the proceedings under section105 begin; and(ii) in the case of a jury trial, before the defendant is given in charge tothe jury.[39] Where the s 9 inquiry is undertaken in the course of a judge-alone trial, asprovided in s 11 of the Act, or during a jury trial, as provided in s 12,Mr Schellenberg's submission would gain traction. Under the definition provided in21 At [96].22 Criminal Procedure Act, s 5, definition of "trial".23 Section 5, definition of "before the trial".the Criminal Procedure Act, the trial would have begun and the point would then havebeen reached where there is no jurisdiction to grant leave to withdraw a charge.[40] However, s 10 addresses the involvement hearing scenario before a trial hascommenced. It uses the same language as s 146; s 10 applies where the question ofwhether a defendant is unfit to stand trial arises "before the trial". On a plain reading,the temporal limitation is s 146(1) does not apply and the withdrawal procedure isavailable in that context.[41] The issue then is whether the reference to "trial" in s 146(1) should be givenan expanded meaning beyond the statutory definition in the Criminal Procedure Actso as to include a pre-trial s 9 hearing.[42] When the Act came into force in 2003, the ability to withdraw charges in thesummary jurisdiction without prejudice to future proceedings was provided for in s 36of the Summary Proceedings Act 1957. In Morgan v Ministry for Transport,24 thisCourt considered that such power25 was directed to situations where some defect hadbecome apparent in the prosecution case and could be exercised where evidence of atechnical or formal nature had been inadvertently overlooked.[43] There was no equivalent provision in the indictable jurisdiction, with thewithdrawal of charges by the prosecutor instead reflected in the omission from anindictment under s 345 of the Crimes Act 1961 of a charge on which the defendantwas committed for trial.26[44] In its original form the Act addressed the various scenarios in which aninvolvement hearing could occur in the former ss 10–12:(a) section 10: inquiry at summary hearing into defendant's involvement;(b) section 11: inquiry at depositions into defendant's involvement; and24 Morgan v Ministry for Transport [1980] 1 NZLR 432 (CA).25 As well as that in s 68 of a magistrate to dismiss an information without prejudice.26 Simon France (ed) Adams on Criminal Law (online looseleaf ed, Thomson Reuters) at[CPA 146.01].(c) section 12: inquiry at trial into defendant's involvement.As noted earlier,27 at that time when a defendant was discharged because the Courtwas not satisfied of the matter specified in s 9, the discharge did not amount to anacquittal, unlike the position under the current legislation.[45] The Criminal Procedure (Mentally Impaired Persons) Amendment Act, whichamended ss 10–12 and 13 in the manner already discussed, was passed at the sametime as the Criminal Procedure Act was introduced. The former contains severalcross-references to the latter, notably, with reference to the issue in the present appeal,in s 10(3)(a) and (b) and s 13(2).[46] We recognise the apparent incongruity in an interpretation of the word "trial"which preserves a power (subject to leave) to withdraw charges at the pre-trial stagewhich on dismissal would otherwise be deemed to be an acquittal. However we areunable to accept the proposition which is implicit in Mr Schellenberg's argument thatthere was an error or oversight by the legislature in either failing to expand thedefinition of "trial" in the Criminal Procedure Act or failing to introduce an extendeddefinition via the Criminal Procedure (Mentally Impaired Persons) Amendment Act.[47] In the context of the introduction of a thorough reform in the nature of theCriminal Procedure Act and a parallel amendment to the Act incorporating expresscross-references to the former, we cannot view the reference to "trial" in s 146 of theCriminal Procedure Act and in s 10 of the Act as an instance of a plain drafting mistakewhich would justify the Court adopting the approach in Inco Europe Ltd v First ChoiceDistributors (a firm).28[48] Consequently we reject Ms Maangi's contention that the subpt 1 procedureamounts to a "trial" which would have the consequence that the power of withdrawalin s 146(1) would not be available in an involvement hearing held at the pre-trial stageunder s 10 of the Act.27 At [10] above.28 Inco Europe Ltd v First Choice Distributors (a firm) [2000] 1 WLR 586 (HL) at 592.Was the grant of leave to withdraw the charges an abuse of process?Submissions[49] Finally, Mr Schellenberg submitted that the record demonstrated that the pointhad been reached in the hearing where the Judge was obliged to dismiss the charges.His failure to do so therefore constituted an abuse of process.[50] He contended that, notwithstanding the Judge's explanation set out at [18]above, the Judge's findings could not be termed "preliminary", as all the evidence hadbeen adduced and the prosecution had closed their case. In those circumstances, theJudge was required to ascertain whether he was satisfied of the matter specified in s 9and to record his findings pursuant to s 13(1). Because his "preliminary view" wasthat he was not so satisfied of the defendant's involvement per s 9, he was obliged todismiss those charges under s 13(2).[51] The Crown's rejoinder was that, while it is true that there was no furtherevidence to be called, it should not be overlooked that the vast majority of the evidencehad been simply handed up. The evidence had not been "heard" by the Judge, as hewas still required to read, assimilate and analyse it in terms of the offence provisions.[52] Ms Brook argued that the Judge plainly did not feel he had completed theexercise sufficiently to enable him to express final views in respect of some of thecharges. He was clearly anticipating receiving assistance from the parties by way ofsubmissions on the issue of whether all of the charges were to progress to adetermination.Analysis[53] If, notwithstanding the Judge's unambiguous statements, he had in fact madea determination under s 13(1) then, as the Crown acknowledged, we accept that hewould have been bound to dismiss the charges. However, we agree with thesubmission for the Crown that the Judge's explicit statement as to his state ofconsideration of the charges should be accepted. In the circumstances, it does appearthat he had not in fact reached the point of making a determination that would haverequired him to dismiss the charges under s 13.[54] Consequently in those circumstances we reject Ms Maangi's contention that,as a consequence of the Judge entertaining and granting the application for leave towithdraw the six charges, an abuse of process occurred.Result[55] The appeal is dismissed.[56] We answer the questions of law in the following way:(i) Prior to a determination being made in the course of a pre-trial hearingunder s 10 of the Criminal Procedure (Mentally Impaired Persons) Act2003 as to a defendant's involvement in terms of s 13(1) a Judge haspower to grant leave to the prosecutor to withdraw charges under s146(1) of the Criminal Procedure Act 2011.(ii) As the Judge had not reached the point of making a determination unders 13(1) he was not obliged to decline to consider an application forleave to withdraw charges and proceed to determine the issue on thematerials before him.[57] In order to protect Ms Maangi's right to a fair trial, we make an orderprohibiting publication of the judgment and any part of the proceedings (including theresult) in news media or on the internet or other publicly available database until finaldisposition of trial. Publication in law report of law digest is permitted.Solicitors:Crown Law Office, Wellington for Respondent