MAAKA-WANAHI v ATTORNEY-GENERAL [2023] NZCA 217

MAAKA-WANAHI v ATTORNEY-GENERAL [2023] NZCA 217 [13 June 2023]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA143/2023[2023] NZCA 217BETWEEN KINGI DUVAL MAAKA-WANAHIAppellantAND ATTORNEY-GENERALFirst RespondentTE WHATU ORA | HEALTH NEWZEALAND – WAIKATOSecond RespondentHearing: 25 May 2023Court: French, Goddard and Ellis JJCounsel: M S Smith and D T Haradasa for AppellantK Laurenson and I M C A McGlone for First RespondentP N White for Second RespondentL A Anderson KC for Criminal Bar AssociationJudgment: 13 June 2023 at 11.00 amJUDGMENT OF THE COURTA The appeal is dismissed.B There is no order as to costs.____________________________________________________________________REASONS OF THE COURT(Given by Goddard J)Introduction[1] Trial courts are often called on to determine issues relating to the mental healthof a defendant, including whether the defendant is unfit to stand trial, whether thedefendant is insane for the purposes of s 23 of the Crimes Act 1961, or the type andlength of sentence that may be imposed on that defendant. In order to ensure that thecourt is in a position to make an informed decision about these matters, s 38 of theCriminal Procedure (Mentally Impaired Persons) Act 2003 (the Act) provides that acourt may order that a health assessor prepare an assessment report (a s 38 report).1[2] The timely provision of s 38 reports is necessary to ensure that people withmental health issues are treated appropriately in the criminal justice system. There hasbeen an increase in awareness of the implications of mental health for defendants inthe criminal justice system. As a result, the number of s 38 reports ordered by thecourts has increased. But there is a shortage of psychiatrists and psychologistsavailable to prepare s 38 reports. The result has been growing delays in the provisionof s 38 reports.[3] Significant concerns have been expressed about those delays. That has led toan increased focus on who is responsible for the preparation of s 38 reports, and onhow those reports are funded. In particular, there has been some uncertainty about theobligations of Te Whatu Ora | Health New Zealand (and its predecessor District HealthBoards) where a court makes a s 38 order which (as is often the case) is not addressedto a named health assessor.[4] In order to resolve some of these uncertainties Te Whatu Ora | Health NewZealand – Waikato (HNZ Waikato) brought proceedings in the High Court seekingdeclarations to clarify its obligations under the Act where a court makes a s 38 order.[5] Mr Maaka-Wanahi also brought proceedings in the High Court seekingclarification about the operation of s 38. These issues are of direct concern to him asa defendant in criminal proceedings in respect of whom s 38 orders were made.1 Section 4 of the Criminal Procedure (Mentally Impaired Persons) Act 2003 provides that a healthassessor may be a practising psychiatrist, a psychologist, or a specialist assessor under theIntellectual Disability (Compulsory Care and Rehabilitation) Act 2003.[6] One of the issues raised before the High Court concerned the timeframe withinwhich a s 38 report must be completed. Mr Maaka-Wanahi argued that s 38 requiresreports to be completed within 14 days (or up to 30 days, if an extension is grantedunder s 40 of the Act). McQueen J did not accept that argument. She held that thetime limits referred to in ss 38(2) and 40 relate to the period for which a person maybe detained for the purpose of assessment. Those provisions do not set a time limitfor preparing the s 38 report and sending it to the court.2[7] Mr Maaka-Wanahi appeals from that finding.[8] We consider that the Judge's finding on this point was clearly correct. As shesaid, s 38 is not drafted clearly or simply.3 But it is in our view very clear that the timelimits referred to in s 38(2) relate to the period for which a person is detained for thepurposes of a s 38 assessment. Section 38 does not prescribe timeframes within whicha s 38 report must be prepared. The provision cannot reasonably be read in any otherway.[9] We do not accept the submission made by Mr Maaka-Wanahi that reading s 38as prescribing a time limit for preparation of s 38 reports would better protect the rightsof defendants awaiting trial. There is no reason to think that the overall timeframe forpreparation of s 38 reports would be reduced by reading s 38 in this way, as we explainbelow. It is equally plausible that imposing time limits on the preparation of s 38reports would reduce the number of health assessors willing to provide such reports,exacerbating the current shortage of report providers and associated delays. There isno evidence before the Court that would enable us to say with any confidence thatMr Maaka-Wanahi's preferred reading of s 38 would improve the timely provision ofs 38 reports. There is also a real prospect of an adverse impact on the quality of s 38reports, if the time for making relevant inquiries and preparing the reports wascurtailed in this way. The interpretive presumption in s 6 of the New Zealand Bill ofRights Act 1990 (NZBORA) is not engaged here, as there is no reason to think thatthe rights affirmed by NZBORA would be better protected by the reading contendedfor by Mr Maaka-Wanahi.2 Maaka-Wanahi v Attorney-General [2023] NZHC 187 [High Court judgment] at [76].3 At [79].[10] The appeal must therefore be dismissed.[11] Our reasons are set out in more detail below.Relevant provisions[12] The purpose of the Act is set out in s 3:3 PurposeThe purpose of this Act is to restate the law formerly set out in Part 7of the Criminal Justice Act 1985 and to make a number of changes tothat law, including changes to—(a) provide the courts with appropriate options for the detention,assessment, and care of defendants and offenders with anintellectual disability:(b) provide that a defendant found unfit to stand trial for anoffence must be the subject of an inquiry to determine whetherthe evidence against the defendant is sufficient to establishthat the defendant caused the act or omission that forms thebasis of the offence:(c) provide for a number of related matters.[13] This appeal is concerned with the interpretation of s 38 of the Act:38 Power of court to require assessment report(1) When a person is in custody at any stage of a proceeding against theperson, whether before or during the hearing or trial, or while awaitingsentence or the determination of an appeal, a court may, on theapplication of the prosecution or the defence or on its own initiative,order that a health assessor prepare an assessment report on the personfor the purpose of assisting the court to determine 1 or more of thefollowing matters:(a) whether the person is unfit to stand trial:(b) whether the person is insane within the meaning of section 23of the Crimes Act 1961:(c) the type and length of sentence that might be imposed on theperson:(d) the nature of a requirement that the court may impose on theperson as part of, or as a condition of, a sentence or order.(2) If a court orders that an assessment report on a person be preparedunder subsection (1), the court may—(a) make it a condition of a grant of bail that the person go to aplace approved by the court for the purpose of the assessment;or(b) order that the person be detained in a prison for the purposeof the assessment for any period not exceeding 14 days as thecourt thinks fit; or(c) order that the person be detained in a hospital or securefacility for the purpose of the assessment for any period notexceeding 14 days as the court thinks fit, if—(i) a remand to a prison for that purpose would beinappropriate for any reason; and(ii) a health assessor has expressed the opinion, in acertificate or in evidence, that it would be desirable ifan assessment, or a further assessment, take place ina hospital or in a secure facility.(3) No order may be made under subsection (2)(b) or (c) in respect of aperson if—(a) the person is bailable as of right; or(b) the person would have been released on bail but for the needfor an assessment report.(4) If the court makes an order under subsection (2)(c) for a person'sdetention and assessment in a hospital or secure facility, it must recordthe reasons why it would have been inappropriate to order thedetention of the person in a prison for that assessment.(5) Subsection (1)—(a) has effect despite other enactments; but(b) is subject, in the case of a defendant who is under 20 years, tosections 171 to 175 of the Criminal Procedure Act 2011 andto section 15 of the Bail Act 2000.[14] In Togia v Police this Court held that the reference in s 38(1) to persons incustody includes persons on bail who appear in court as a condition of bail, as personspresent in court answering bail are in the custody of the court.44 Togia v Police [2012] NZCA 544, [2013] 2 NZLR 478 at [27].[15] Section 39(2) provides that unless the court directs otherwise, every orderunder s 38(1) is deemed to include a direction that, in preparing the assessment report,the health assessor must consult, wherever practicable, with certain persons about thesubject's condition and background: caregivers, welfare guardians, parents andguardians of subjects who are children or young persons, and the subject's family orwhānau.[16] Section 40 provides for the extension of periods of detention under s 38(2)(b)or (c) in certain circumstances:40 Period of detention may be extended(1) The period for which a person may be detained under an order madeunder section 38(2)(b) or (c) may, from time to time, be extended withthe consent of the person or the person's guardian, but the total periodof detention under the order may not exceed 30 days.(2) It is not necessary for a person subject to detention to be present whenthe period of detention is extended under subsection (1), as long as theperson is represented by counsel.[17] Section 38(2)(b) and (c) refer to detention for a period not exceeding 14 days.Section 40 provides for that period to be extended up to a maximum of 30 days withthe consent of the person (or the person's guardian). The central issue before us iswhether these provisions can be read as requiring, expressly or by implication, that as 38 report be prepared within 14 days (or any extended period under s 40).High Court judgmentParties before the High Court[18] As already mentioned, there were two proceedings before the High Courtseeking declarations in relation to the operation of s 38: one brought by HNZ Waikato,and one by Mr Maaka-Wanahi. The parties to the two proceedings, which wereheard together, were the applicants Mr Maaka-Wanahi and HNZ Waikato;5 theAttorney-General, who was named as a respondent in both proceedings; and theNew Zealand Law Society, the New Zealand Bar Association and the New ZealandCriminal Bar Association, who participated in the hearing as intervenors.5 HNZ Waikato was also a respondent to Mr Maaka-Wanahi's application.Time limits for s 38 reports[19] The Judge began her analysis by considering Mr Maaka-Wanahi's applicationfor a declaration in relation to time limits for preparing s 38 reports.[20] The Judge noted that s 38(1) empowers a court to order an assessment reportfor one or more of the specified purposes. There is no reference in this subsection toa timeframe for provision of the report.6[21] Section 38(2) goes on to provide for a court to make further orders when areport is ordered pursuant to s 38(1). Section 38(2)(a) allows a court to make it acondition of bail that the defendant go to a place approved by the court for the purposeof the assessment. No timeframe for the provision of a report is mentioned.Section 38(2)(b) and (c) contemplate the defendant's detention for up to 14 days forthe purpose of the assessment.7[22] The Judge was not persuaded by Mr Maaka-Wanahi's argument that the use of"assessment" in s 38(2)(b) and (c) should be understood as shorthand for "assessmentreport" as used in the chapeau of s 38(2). Rather, it seemed to her that "assessment"was used deliberately to emphasise that the detention of a person is to facilitate theassessment taking place. This recognises that once a person has been assessed, thereis no need for that person to continue to be detained "for the purpose of assessment"while a report is drafted and provided to the court.8[23] The Judge added that this distinction also recognises that detention for thepurposes of assessment is not a matter addressed by the Bail Act. Following thecompletion of the assessment or at the latest, the expiry of the time-limited period ofdetention, a person detained pursuant to s 38 may be remanded in custody in thenormal fashion, or released on bail.96 High Court judgment, above n 2, at [79].7 At [79].8 At [80].9 At [80].[24] The Judge considered that this interpretation of s 38 is supported by two othermatters.10[25] The first is the approach to timeframes in other sections of the Act. Section 38does not contain a requirement as found in s 23(4) of the Act that a report "must becompleted as quickly as practicable and, in any event, within 30 days". Section 23addresses inquiries that must be made following findings that either a person is unfitto stand trial or is acquitted on account of insanity. The Judge noted that s 35(3)contains a similar time provision in relation to persons who have been convicted, butin respect of whom a court directs inquiries to determine the most suitable method ofdealing with that person. Those inquiries also must be completed as quickly aspracticable and, in any event, within 30 days.11[26] The Judge concluded that Parliament was cognisant of setting timeframes inthe Act, but chose not to do so in relation to the provision of a report under s 38.12[27] The Judge considered that the precursor of s 38, which was s 121 of theCriminal Justice Act 1985, supported reading s 38(2) as directed to detention for thepurpose of assessment and not the timeframe for provision of a report.13 The timelimits in s 121 of the Criminal Justice Act 1985 were clearly focussed on the period ofdetention of a defendant for the purpose of assessment. Although that provision wasredrafted, no time limit for provision of s 38 reports was included in the Act.That would have been an appropriate time to include an explicit time limit for theprovision of s 38 reports, were that Parliament's intention.14[28] The second matter identified by the Judge was the need for an interpretation ofthe relevant provisions to accord with human rights considerations. The Judgeconsidered that a rights-consistent approach to timeframes for the provision of s 38reports is possible without concluding that the 14-day and 30-day timeframes refer tothe time in which reports are to be completed. The Judge was not willing to determine10 At [82].11 At [83].12 At [84].13 At [85].14 At [86].in the abstract what an appropriate or reasonable timeframe might be for provision ofs 38 reports.15[29] The Judge made the following declaration in relation to this issue:16(a) Section 38 does not impose a specific time frame within which s 38reports must be provided following the making of a s 38 order.The 14 day period referred to in s 38(2)(b) and (c) refers to the periodof detention for the purpose of an assessment and not the period withinwhich a report must be completed. The 30 day timeframe referred toin s 40 refers to the period of detention permitted with the consent ofthe defendant or their guardian and not the period within which a s 38report must be completed. However, such reports must be providedwithout undue delay or there may be a breach of a defendant's rightsunder NZBORA.Other issues determined by the High Court[30] The Judge determined a number of other issues raised by the parties in relationto the operation of s 38. She made the following declarations in relation to thoseissues:17(b) HNZ Waikato does not meet the requirements of the definition of'health assessor' in the [Act]. HNZ Waikato is not legally obliged toprovide a s 38 report when it receives a s 38 order addressed to anunnamed "health assessor". Nor is it obliged to locate andcommission a health assessor to complete a s 38.(c) HNZ Waikato is legally obliged to comply with an order made unders 38(2)(c) ordering the detention of a person in Puawai's inpatientfacility, provided the requirements in that section have been satisfied.A failure to comply with the requirement in s 38(2)(c)(ii) does notmake an order under s 38(2)(c) void ab initio, but constitutes areviewable error, which is a basis upon which a court may concludethat such an order is void.(d) In deciding whether to make a s 38 order, a judge may consider theopinion of a forensic nurse following their completion of a screeningassessment. However, the [Act] does not require that such a screeningassessment take place nor that a forensic nurse recommend a s 38report in order for the Court to exercise its power to make a s 38 order.15 At [87]–[88].16 At [128(a)].17 At [128 (b)–(d)].[31] The Judge declined to make certain other declarations sought byMr Maaka-Wanahi and HNZ Waikato, and directions sought by the Criminal BarAssociation as an intervenor.18[32] There is no appeal before us in relation to any of the other issues determinedby the High Court. In particular, there is no appeal from the declaration thatHNZ Waikato is not legally obliged to provide a s 38 report when it receives a s 38order addressed to an unnamed "health assessor", and is not obliged to locate andcommission a health assessor to complete a s 38.19 We return to this below.Submissions on appealSubmissions for Mr Maaka-Wanahi[33] Mr Smith, who appeared for Mr Maaka-Wanahi, submitted that the High Courterred in declining to adopt a bright-line time limit for completing s 38 reports.He submitted that interpreting s 38 in light of its purpose and context, and proactivelyseeking a rights-consistent meaning, supports a bright-line standard.[34] Mr Smith emphasised the right to a fair trial affirmed in s 25(a) of NZBORA.The requirement that a defendant be fit to plead and to stand trial "is not just a matterof procedural fairness, but a substantive requirement 'firmly rooted in the accused'sconstitutional rights to a fair trial'".20 A key mechanism for ascertaining a defendant'sfitness to stand trial is s 38 reports. Thus, interpretive issues concerning s 38 engageconsideration of the s 25(a) fair trial right.[35] Mr Smith also emphasised the right to be tried without undue delay affirmedin s 25(b) of NZBORA. These rights overlap: the longer the delay in getting to trial,the greater the possibility that there cannot be a fair trial.21 But it is also "a distinctright whose purpose is also to minimise pre-trial restraints (imprisonment or restrictivebail conditions) and to minimise other personal disadvantage as well as anxiety for18 At [129]–[130].19 At [128(b)], cited in full at [30] above.20 Warren Brookbanks Competencies of Trial: Fitness to plead in New Zealand (LexisNexis,Wellington, 2011) at 3, citing R v Duval [1995] 3 NZLR 202 (HC) at 205.21 R v Williams [2009] NZSC 41, [2009] 2 NZLR 750 at [9].someone who is entitled to be presumed innocent until guilt is established by verdictat a trial."22[36] Mr Smith submitted that where a court orders a s 38 report, proceedings pauseuntil the report is completed. The longer it takes for a report to be completed, thelonger a defendant languishes under the label/status of a "criminal accused", with allthe pre-trial restraints and personal disadvantages associated with that label/status.[37] Mr Smith said that s 38 of the Act does not permit a person to be detained incustody or in a hospital or secure facility for the purpose of assessment, if they wouldotherwise be entitled to bail. Section 38(3)(b) makes this clear. So a court consideringwhat order to make under s 38 must first make a decision under the Bail Act on thegrant of bail versus detention. A decision can then be made under s 38 on whether toorder an assessment. If the defendant is bailed, the order may amend their bailconditions to enable the assessment to be undertaken (s 38(2)(a)). If the defendant isnot granted bail, the order may alter their place (location/institution) of custodialdetention for the assessment process (s 38(2)(b) and (c)). Under s 38(2)(b), the courtcan direct that the defendant be detained at a particular prison, where that is desirablein order for the assessment to take place. Under s 38(2)(c), the court may direct thedetention to be in a hospital or secure facility, where that is desirable in order to enablethe assessment to take place. Mr Smith submitted that in either case, the circumstancesof detention may be more restrictive or less convenient (for example, for the purposeof family visits) than the location where the person would otherwise be detained.[38] The more onerous/restrictive bail or custody change should, Mr Smithsubmitted, continue for the least possible time required to undertake the assessment,within a maximum of 14 days (30 days with consent). References in s 38(2) toundertaking the assessment should be understood as references to the entire processculminating in a report, including examination of the defendant (s 41) and consultationwith family members and other specified persons where practicable (s 39(2)).22 R v Williams at [8], citing R v Harmer CA324/02 and 352/02, 26 June 2003 at [130].[39] Mr Smith accepted in the course of argument that he needed to identify whowould be required to prepare the s 38 report within 14 days (30 days, if extended).Such a requirement would be meaningless if a report were addressed to an unnamedhealth assessor: there would be no person to whom the requirement would apply.He also accepted that a s 38 report could not be addressed to HNZ Waikato, consistentwith the Judge's finding on that issue (from which there was no appeal). His argumentproceeded on the basis that a s 38 report should be directed to a named health assessor,who had confirmed to the court that they could carry out the assessment and completea report within 14 days.[40] Mr Smith argued that reading "assessment" as the entire process, with a14-day timeframe for the named health assessor to complete that process, would avoidproblems relating to delays in the provision of s 38 reports. It would also promote andprotect a number of rights under NZBORA including s 25(a) and (b), and also s 25(e)(the right to present a defence), ss 18(1) and 22 (in relation to freedom of movementand the right not to be arbitrarily detained), s 23(5) (the right to be treated withhumanity and respect for dignity), and s 19(1) (freedom from discrimination).[41] Mr Smith submitted that the key textual indicator when ascertaining what thewords "14 days" refer to is s 38(3)(b). What that provision makes clear is that a personcannot be detained in a prison or hospital or secure facility solely for the purpose ofan "assessment report". Thus, persons who are subject to s 38(2)(b) or (c) orders arepersons who, independently of s 38 issues, are denied bail and ordered to be remandedin custody. Mr Smith argued that the reference to 14 days in s 38(b) and (c) cannot bea reference to the period for which a person is to be remanded in custody. That is anissue to be decided under the Bail Act. If it is not a reference to the period for whicha person may be remanded in custody, Mr Smith said, the question becomes what the14-day period refers to. He submitted it must be a reference to the period within whichthe reports must be provided.[42] In support of this argument Mr Smith referred to the fact that the law ofcriminal procedure is replete with statutory deadlines and timeframes aimed atsecuring substantive progress in order to ensure the expeditious progression of matters,consistently with s 25(a) and (b) of NZBORA. Consistent with this approach, he said,the scheme of the Act envisages the timely progression of matters, recognising thenegative implications of delay, in particular for mentally and institutionally vulnerablepersons.[43] He submitted that the Judge was wrong to draw adverse inferences about theexistence of s 38 timeframes from ss 23(4) and 35(4). Neither of those provisions isdrafted clearly: it is not clear what "inquiries" means, and whether it is just the makingof those inquiries or also includes the report to the court of the result of those inquiries.The legislative history of these provisions suggests that the timeframes were intendedto be consistent with the timeframe in what is now s 38, to avoid assessments beingdragged out.23[44] Mr Smith also referred us to s 19 of the Intellectual Disability (CompulsoryCare and Rehabilitation) Act 2003 (IDCCR Act), which provides:19 Maximum period for needs assessment and preparation of careand rehabilitation plan(1) The process of assessing the needs of a care recipient and preparinghis or her care and rehabilitation plan must be completed as quicklyas practicable.(2) The process referred to in subsection (1) may not continue for longerthan 30 days after the date on which the meeting is held in accordancewith section 18.[45] This, Mr Smith said, was a companion piece of legislation to the Act,introduced in the same package of reforms. He submitted that it reflects aparliamentary intention that it is not just the assessment/inquiry but also thesubsequent report/plan that needs to be completed quickly and within the timeframespecified in legislation.[46] Mr Smith submitted that the Court should adopt the most rights-maximisinginterpretation available. Even if it is consistent with s 25(b) of NZBORA to say thats 38 reports should be provided without undue delay or within a reasonable time, if a23 Mr Smith referred to the Criminal Justice Amendment Bill (No 7) 2001 (328-2) (select committeereport) at 7, which says that in relation to the provisions that became ss 23 and 35 "assessmentsshould not be routinely dragged out for 30 days; they should be completed speedily andeffectively."more rights-consistent approach is available, without doing violence to the text,scheme or legislative intention, then it must be adopted. A more rights-consistentinterpretation is available here, by reading the timeframe specified by Parliament ins 38 as the timeframe within which the report must be provided.[47] Finally, Mr Smith referred to a concern that lengthy delays in preparing reportsafter the assessment of a defendant may mean that the report is out of date, and doesnot provide an accurate assessment of the defendant's present state of mind. A furtherreport may be required. Additionally, Mr Smith submitted, anything other than abright-line standard can lead to postcode justice, which is undesirable.Submissions for Criminal Bar Association[48] Mr Maaka-Wanahi's appeal was supported by the Criminal Bar Association(CBA) as an intervenor. The CBA emphasised the importance of completing s 38reports in an efficient and timely manner. This, Mr Andersen KC submitted, isrequired by various human rights provisions.[49] In the course of oral argument before us, Mr Andersen submitted that in mostcases, where a defendant is already remanded in custody, an assessment report can bedirected under s 38(1) without the need to make any order under s 38(2). Where adefendant is on bail, an order under s 38(2)(a) may not be necessary if the person iswilling to attend any assessment voluntarily: and in any event, no timeframe is referredto in s 38(2)(a). But, he said, a 14-day mandatory timeframe for preparing anassessment report (extendable to 30 days with the defendant's consent) applies wherean order is made under s 38(2)(b) or (c).[50] Mr Andersen accepted that this would mean that no time limit applied wherean order was made under s 38(1) alone, or where the defendant was on bail and as 38(2)(a) order was made.Submissions for the Attorney-General[51] The Attorney-General submitted that while s 38 reports should be providedpromptly, s 38 does not mandate a particular time limit. Ms Laurenson, who appearedfor the Attorney-General, submitted that:(a) The natural meaning of s 38 is that it sets a 14-day maximum period ofdetention. It says nothing about the time within which a report must beprovided. Section 40 is also focused on the period of detention.(b) The Act does not elsewhere impose any timeframes for the completionof reports, assessments or evidence by health assessors. Reading atimeframe into s 38 would be strained and inconsistent with the schemeof the Act.(c) Limiting the time of detention for the purpose of obtaining anassessment report is a rights-consistent interpretation under NZBORA.It is not necessary to read in a timeframe for provision of the s 38 reportto achieve a rights-consistent interpretation of the Act.Submissions for HNZ Waikato[52] Mr White, who appeared for HNZ Waikato, supported the reasoning of theHigh Court. HNZ Waikato accepts that delays in providing reports under the Act areunsatisfactory and unacceptable, and have the potential to affect defendants' rights.But Mr White emphasised that the reason for those delays is primarily the lack ofavailable persons in New Zealand to act as health assessors under the Act.That difficulty cannot be cured by adopting a reading of the Act that departs from theclear wording of the relevant provisions.[53] Mr White also pointed out that nothing in the Act provides for what happens ifthe 14-day period expires without a s 38 report having been provided. There is noprovision for extension of a deadline for providing such a report: s 40 provides forextension of detention, but not for extension of report timeframes. Nor does the Actaddress what would happen if a report is provided after the 14-day period expires.DiscussionReading s 38 in light of its text, context and purpose[54] We share the Judge's view that s 38 is not expressed as clearly or simply asdesirable. Despite that, we agree with her that it is clear from the text of the provisionthat the references to 14-day periods in s 38(2)(b) and (c) are references to periods ofdetention for the purpose of carrying out an assessment of the defendant. They are notconcerned with the timeframe within which all other inquiries (including thosecontemplated by s 39(2)) must be carried out, and an assessment report completed andprovided to the court.[55] Section 38 does not expressly provide for a timeframe for completing anassessment report. Nor is it implicit in s 38(2)(b) and (c) that the report must becompleted in that timeframe. We do not think it is a coincidence that the onlyreferences to time periods in s 38 are found in the two paragraphs of s 38(2) concernedwith detention of the defendant: that is because the time limits relate to the period ofdetention, not to the period for preparation and submission of the s 38 report.[56] If Parliament had intended to impose a mandatory time limit for provision ofs 38 reports, we would have expected that timeframe to apply to all s 38 reports,regardless of whether the defendant was on bail or remanded in custody. It would befound in s 38(1), not in two of the three limbs of s 38(2). It is difficult to discern anyrationale for imposing a time limit for providing a s 38 report in the scenarios referredto in s 38(2)(b) and (c) where a defendant is detained in a prison or hospital or securefacility, but not in the scenario where a defendant is on bail. The need to preparereports promptly, to avoid delays in the trial process, applies equally in all of thesescenarios. But it makes good sense to impose a time limit on detention for the purposeof carrying out an assessment to inform a s 38 report.[57] It also makes good sense, and is more rights-consistent, to provide for detentiononly while assessments of the defendant are being carried out. Detaining a defendantin a particular location or facility after all necessary assessments have been carriedout, for the further period required to enable inquiries to be made of the defendant'sfamily and a report written up, would be an unjustified interference with thedefendant's rights. It is more rights-consistent to read the references to "assessment"in s 38(2)(b) and (c) as confined to the assessment process excluding preparation ofthe s 38 report.[58] That reading of s 38 is confirmed by s 40(1), which provides for extension ofthe 14-day period. Section 40 is clearly concerned with the period for which a personmay be detained, not the period within which a report must be prepared. If s 38 wasintended to set a timeframe for provision of s 38 reports, one would expect the Act toprovide for extension of that deadline. It does not.[59] We accept Mr Smith's submission that little light is shed on the interpretationof s 38 by the deadline for making inquiries under ss 23(4) and 35(3). Thoseprovisions do not specify a timeframe within which a report about those inquiries mustbe made to the court. We express no view on whether a time limit is implicit in theseprovisions. But we agree that these provisions do not provide examples of Parliamentsetting an express deadline elsewhere in the Act for reporting to the court, from whichany inferences can usefully be drawn about the interpretation of s 38.[60] We also agree with Mr Smith that the clearest example of Parliament turningits mind to a deadline within which a report must be provided to the court, in acomparable context, is s 19 of the IDCCR Act. But we do not see this provision assupporting Mr Smith's argument. To the contrary, it shows that where Parliament doesintend to set a deadline for provision of a report, it can be expected to do so explicitly.[61] In support of his argument that the terms "assessment" and "assessment report"are used interchangeably in the Act, Mr Smith referred us to s 42(2) of the Act, whichprovides:(2) If the assessment report on a person is sent to the court before theexpiry of the period for which a person has been ordered to bedetained in a hospital or secure facility under section 38(2)(c), theperson must be transferred at the direction of the Director of AreaMental Health Services for the hospital or the co-ordinator for thesecure facility to court or penal or Police custody for 1 or more of thepurposes specified in subsection (3).[62] Mr Smith submitted that this provision suggests that the detention terminateswhen the assessment report is sent to the court. We agree that once the court receivesan assessment report, any further detention under s 38(2)(c) in a hospital or securefacility for the purpose of assessment can no longer be justified, so must be terminated.But that does not suggest the terms "assessment" and "assessment report" are usedinterchangeably. Rather, this provision proceeds on the basis that once the report hasbeen provided, the assessment process must also necessarily be at an end. It followsthat detention in a hospital or secure facility is no longer required.Legislative history[63] The legislative history of s 38 supports the reading of s 38 set out above.In particular, it sheds light on what "work" there is for s 38(2)(b) to do if — by virtueof s 38(3) — a defendant to whom that provision is applied will already be in custody.As noted earlier,24 the question very fairly raised by Mr Smith is: why is it necessaryto limit the period of a detention for assessment purposes when the defendant willremain detained after the assessment is completed?[64] Although there have for many years been various powers to detain defendantsfor mental health reasons, the origins of s 38 go back only as far as 1970, when s 47Awas inserted into the Criminal Justice Act 1954 (the CJA54) by s 10 of the CriminalJustice Amendment Act 1969. Section 47A provided:(1) Notwithstanding anything in any enactment, where any personcharged with or convicted of any offence punishable by imprisonmentor death is in custody—(a) While awaiting or during the course of the hearing or trialbefore any Court; or(b) While awaiting sentence by any Court; or(c) Pending the determination of any appeal to any Court againsthis conviction—and it appears to that Court to be expedient that a psychiatric reporton the person's mental condition should be made available to theCourt, the Court may exercise any of the powers conferred bysubsection (2) of this section.24 At [41] above.(2) The Court may—(a) Make it a condition of any grant of bail to the person that heshall attend, for psychiatric examination by a medicalpractitioner, at a psychiatric clinic approved by the Court; or(b) Make an order committing him to a penal institution for suchperiod, not exceeding fourteen days, as the Court thinks fit,and for his psychiatric examination during that period by amedical practitioner approved by the Court; or(c) Where a medical practitioner has certified or given evidenceto the effect that a psychiatric examination of the person isrequisite and it appears to the Court that it would not bepracticable for the examination to be carried out if he werecommitted to a penal institution, or where a psychiatric report(whether obtained pursuant to paragraph (a) or paragraph (b)of this subsection or otherwise) recommending his detentionin a psychiatric hospital for further observation is available tothe Court, make an order for his detention and examination ina psychiatric hospital for such period, not exceeding onemonth, as the Court thinks fit.(3) Any person who is subject to order made under paragraph (b) ofsubsection (2) of this section may from time to time, as the case mayrequire, be removed by or under the direction of the Superintendentof the penal institution to a psychiatric hospital for the purposes of hisexamination, and may in like manner be taken back to the institution.On any such removal he shall not be detained in the psychiatrichospital overnight; and he shall be deemed to continue to be in thelegal custody of the Superintendent of the penal institution while heis absent from the penal institution.(4) If an order is made under paragraph (c) of subsection (2) of thissection, the Court or, in the case of a District Court, any Justice mayat any time, and shall on the receipt from the superintendent of thepsychiatric hospital of a report on the person's mental condition, orderthat the person be removed from the hospital and returned to custodyfor the purposes of the hearing or trial, or for the purpose of his beingsentenced, or for the purposes of the determination of his appeal, asthe case may require, notwithstanding that the period for which he hasbeen ordered to be detained in the hospital has not expired.(5) Nothing in this section shall operate to prevent the treatment of anyperson, with his consent, during the period of his detention pursuantto an order under paragraph (c) of subsection (2) of this section.(6) While any person is detained in a psychiatric hospital pursuant to anorder under paragraph (c) of subsection (2) of this section he shall bedeemed to continue to be in the legal custody of the Superintendent ofthe penal institution, or of the member of the Police in charge of thepolice station, in which he was confined before his removal to thehospital pursuant to the order.(7) This section shall not affect the powers of a Court under section 39Bof this Act in any case to which that section applies.(8) In this section, the expression psychiatric hospital has the samemeaning as in the Mental Health Act 1969.[65] We make three points about s 47A.[66] First, the only kinds of order that could be made under s 47A were the threeorders set out in s 47A(2). There was no more general power under s 47A(1) to orderpsychiatric reports.[67] Second, there was no equivalent to s 38(3) — the power to make orders unders 47A(2)(b) and (c) enabled the court to require a defendant to be detained for thepurpose of examination in circumstances where that defendant would otherwise be onbail.[68] Third, and most significantly, s 47A(2)(b) made it quite clear that a committalorder under that provision was time-limited (to 14 days) and that the psychiatricexamination was to occur "during that period".[69] That last point makes it clear that the specified 14-day timeframe was theperiod within which the examination was to take place. As well, the possibility that acommittal order could be made for somebody who was otherwise entitled to bail madeit important that the duration of detention for the purposes of examination wasspecifically and strictly limited.[70] In 1985 the CJA54 was repealed and replaced by the Criminal Justice Act 1985(the CJA85). Section 47A became s 121 of the new Act. Section 121 was in similarterms to s 47A, but there were some changes that are not easy to understand. The firstiteration of s 121 relevantly provided:(1) Notwithstanding anything in any other enactment, where a defendantwho is charged with or convicted of an offence punishable by deathor imprisonment is in custody while awaiting or during the course ofthe hearing or trial before any court or while awaiting sentence by anycourt or pending the determination of any appeal to any court againstconviction, and the court is satisfied, on the application of theprosecutor or the defendant or of its own motion, that a psychiatricreport would assist the court in determining—(a) If the defendant is under disability; or(b) If the defendant is insane within the meaning of section 23 ofthe Crimes Act 1961; or(c) The type and length of sentence that might be imposed; or(d) The nature of any requirement that it may impose as part of,or as a condition of, any sentence or order,—the court may exercise any of the powers conferred by subsection (2)of this section.(2) In any such case, the court may—(a) Make it a condition of any grant of bail that the defendantshall attend in accordance with the court's directions, forpsychiatric examination, at a place approved by the court; or(b) Where a psychiatrist or (where no such specialist is available)another medical practitioner has certified or given evidence tothe effect that a psychiatric report or a further such reportcannot practicably be prepared unless the defendant is incustody,—(i) Make an order committing the defendant to a penalinstitution for the purpose of psychiatric examinationfor such period not exceeding 14 days as the courtthinks fit; or(ii) In any case where remand to a penal institution isinappropriate for any reason, for the defendant'sdetention and psychiatric examination in a psychiatrichospital at which adequate facilities for thepsychiatric examination are available, for such periodnot exceeding 14 days as the court thinks fit.(3) Notwithstanding anything in subsection (2) of this section, no ordermay be made under paragraph (b) of that subsection, if—(a) The defendant is bailable as of right; or(b) The defendant would have been released on bail but for theneed for a psychiatric report.[71] It is immediately apparent that there was a conflict between subs (2) andsubs (3). The time-limited power to detain under subs (2)(b) could only be exercisedon medical advice that it was necessary for the defendant to be in custody for thatpurpose, but subs (3) provided no such order could be made if the defendant wouldotherwise be released on bail. The purposive link between the detention and theexamination in subs (2)(b) nonetheless remained clear.[72] The tension between subs (2) and subs (3) was, however, remedied thefollowing year, when s 121 was amended to provide that it was only an order fordetention in a psychiatric hospital under subs (2)(b)(ii) that had to be based on medicalevidence that it was desirable that the psychiatric examination of the defendant takeplace there. The restriction on the exercise of the power under either limb of subs 2(b)to defendants who would not otherwise be granted bail remained in subs (3).[73] The provision then remained unaltered until the repeal of pt 7 of the CJA85 bythe Act. Section 38 of the Act largely replicates s 121 of the CJA85, although someof the subsections of s 121 became discrete sections (such as s 41).[74] When s 38 is read in light of the legislative history outlined above, it istolerably plain that s 38(2)(b) is an historical artefact. It can be traced back to a timewhen detention pursuant to the equivalent provision might well have been orderedonly for the purpose of a psychiatric examination. That such detention be specificallytime limited was — from a rights perspective — critical. And as we have noted, itwas very clear that such detention was for the purposes of the psychiatric examination(not for the preparation of the resulting report).[75] In its current form, s 38(2)(b) serves little purpose. It would at most enable acourt to require that a defendant be detained at a specified prison, to facilitateassessment by a particular health assessor. But Mr Smith's argument that the provisionshould be read as requiring the assessment report to be completed within 14 days, asotherwise it would serve little or no purpose, is answered by the provision's history.That history both explains the vestigial nature of the provision as it appears in the Act,and confirms that the provision has throughout been concerned with the period ofdetention while the health assessor carries out the assessment/examination of thedefendant.Would bright-line time limits better protect defendants' rights?[76] Mr Smith placed considerable emphasis on the desirability of reading the Actas imposing bright-line time limits for the provision of s 38 reports in order, he said,to better protect rights affirmed by NZBORA. The difficulty with this argument isthat there was no evidence before us to support its premise: that imposing suchdeadlines would reduce delays in providing s 38 reports, and protect the fair trial rightsof defendants.[77] It seems to us that the same difficulties that are encountered in finding anavailable health assessor after the court has made a s 38 order would be likely to bereplicated on Mr Smith's approach: the only change would be that these difficultieswould be encountered before the court can make a s 38 order addressed to a namedhealth assessor. Inquiries would need to be made to find a health assessor who isavailable and willing to commit to providing a report within 14 days before that healthassessor could be named in the s 38 order. And there would be a real risk that requiringa health assessor to commit to such a tight timeframe for provision of their reportwould affect the willingness of psychiatrists and psychologists, already underconsiderable pressure, to agree to provide such reports. There was no evidence beforethis Court to shed light on the likely consequences of adopting bright-line time limitsfor the provision of s 38 reports. Without such evidence, it would be speculative toproceed on the basis that imposing deadlines would improve the availability andtimeliness of s 38 reports.[78] We also see a real risk in imposing such deadlines so far as the quality of s 38reports is concerned. As already mentioned, s 39(2) provides that unless the courtdirects otherwise, every order under s 38(1) is deemed to include a direction that, inpreparing the assessment report, the health assessor consult, wherever practicable,with certain persons including the subject's family or whānau. It can take some timeto make contact with family and others with relevant information about the subject ofthe report. There is a real risk that a bright-line timeframe for provision of s 38 reportswill limit the health assessor's ability to make contact with family and others, obtaintheir insights, and incorporate these in the s 38 report. That would mean that courtswould receive less complete, less informed, s 38 reports. That would be contrary tothe interests of the defendant, and inconsistent with the rights protected by NZBORA.[79] In some cases, it will be clear that one available reading of a provision will bemore consistent with NZBORA than another available reading. But here, Mr Smith'sargument depends on the practical consequences of adopting one reading rather thananother in circumstances where those consequences are uncertain, and there is noevidence before this Court that sheds light on the likelihood of those consequences.It would be wrong for this Court to speculate about the consequences of each reading,and assume that bright-line time limits would produce results more consistent withNZBORA in all (or most) cases, in the absence of any evidence to support thatproposition.[80] Because the premise of Mr Smith's arguments founded on NZBORA is notmade out, we need not engage with the detail of those arguments. But we should notbe taken to accept Mr Smith's argument that the most rights-affirming interpretationof a provision must be adopted. We are not aware of any authority to support thatargument. Section 6 of NZBORA requires a court to prefer a meaning that is consistentwith the rights and freedoms contained in NZBORA to any other meaning. But wheretwo meanings are available, each of which is consistent with the rights and freedomscontained in NZBORA, s 6 provides no guidance on which should be preferred.The extent to which an interpretation advances rights and freedoms protected byNZBORA is likely to be a relevant factor in any interpretation exercise. But it is notpossible to put the matter any higher.Summary[81] In summary, the text of s 38 is in our view clear. The time frames referred toin s 38(2)(b) and (c) relate to the period of detention for the purpose of carrying outan assessment, not to the period within which a s 38 report must be completedand provided to the court. That reading of s 38 is consistent with the wide statutorycontext in which it appears, in particular s 40. A cross-check of that reading of s 38against the provision's purpose does not support adopting a different interpretation.Nor is a different interpretation supported by reference to rights affirmed byNZBORA: there is no reason to think that the alternative interpretation contended forby Mr Maaka-Wanahi would better advance those rights.Result[82] The appeal is dismissed.[83] The parties agreed that costs should lie where they fall regardless of theoutcome of the appeal. We therefore make no order as to costs.Solicitors:Crown Law Office | Te Tari Ture o te Karauna, Wellington for First RespondentLegal Services, Te Whatu Ora | Health New Zealand – Waikato for Second Respondent