NEW ZEALAND POLICE v MW [2023] NZHC 3669

NEW ZEALAND POLICE v MW [2023] NZHC 3669 [13 December 2023]NOTE: NO PUBLICATION OF A REPORT OF THIS PROCEEDING ISPERMITTED UNDER S 438 OF THE ORANGA TAMARIKI ACT 1989,EXCEPT WITH THE LEAVE OF THE COURT THAT HEARD THEPROCEEDINGS, AND WITH THE EXCEPTION OF PUBLICATIONS OF ABONA FIDE PROFESSIONAL OR TECHNICAL NATURE. NOPUBLICATION MAY INCLUDE THE NAME OR IDENTIFYINGPARTICULARS OF ANY CHILD OR YOUNG PERSON, OR THE PARENTSOR GUARDIANS OR ANY PERSON HAVING THE CARE OF THE CHILDOR YOUNG PERSON, OR THE SCHOOL THAT THE CHILD OR YOUNGPERSON WAS OR IS ATTENDING, OR THE NAME OF ANYCOMPLAINANT. SEEhttp://www.legislation.govt.nz/act/public/1989/0024/latest/DLM155054.htmlIN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2023-404-461[2023] NZHC 3669BETWEEN NEW ZEALAND POLICEAppellantAND MWRespondentHearing: 28 November 2023Appearances: Z R Johnston for AppellantC J A Leys for RespondentS P Jerebine as Counsel assisting the CourtJudgment: 13 December 2023JUDGMENT OF O'GORMAN JThis judgment was delivered by me on 13 December 2023 at 3.30 pmpursuant to r 11.5 of the High Court Rules.Registrar/Deputy RegistrarSolicitors/Counsel:Crown Law Office, WellingtonC J A Leys, Barrister, AucklandS P Jerebine, Barrister, Auckland[1] This is an appeal on a question of law pursuant to s 354(2) of theOranga Tamariki Act 1989 (the OT Act). In a reserved judgment issued on8 August 2023, Judge E B Parsons found that the Criminal Procedure (MentallyImpaired Persons) Act 2003 (the CPMIP Act) does not apply for proceedings beforethe Youth Court, other than s 333(2)(a) of the OT Act cross-referring to the CPMIP Actdefinition of when someone is unfit to stand trial.1[2] The issues were originally framed as questions of law under s 93 of theDistrict Court Act 2016 by the Judge:[202] Due to the lack of clarity as to the processes to be applied in assessingyoung people's fitness to stand trial in the Youth Court, the followingquestions of law are now stated to the High Court:In relation to a young person appearing in the Youth Court, where the issue offitness to stand trial has been raised:(a) Does the CPMIP apply to Youth Court proceedings?(i) Related to (a) above, does the s 4 CPMIP definition of court,meaning "any court exercising jurisdiction in criminalproceedings" apply to the Youth Court (i.e., does the CPMIPapply to Youth Court proceedings beyond the s 4 meaning)?(ii) If CPMIP does apply, is it in part or in whole?(b) Do the distinctive criminal jurisdictions conferred upon each of theDistrict Court (s 9 CPA) and upon the specialist Youth Court (as adivision of the District Court (ss 272, 321 and Schedule 1 OTA)), havesignificance in terms of this analysis?(c) Noting s 185 OTA, does the Youth Court possess a discretion to choosebetween directing either a s 333 OTA report/s and/or a s 38 CPMIPreport(s) (for assessing fitness to stand trial specifically)?(i) If not, does it matter if s 38 CPMIP reports have been directedand received instead of s 333 report(s)?(ii) If yes, are there criteria for assessing which report to direct?(d) In the event CPMIP does not apply to Youth Court proceedings, and ayoung person is found unfit to stand trial, are the outcomes available limitedto consideration of s 282 OTA discharge and referral back to the Family Courtunder s 280, (s 19) and s 281B OTA referral or upon reliance on existing careand protection proceedings?(Footnote omitted.)1 New Zealand Police v MNW [2023] NZYC 572 at [188].Position of the parties[3] As this proceeding concerns an issue of statutory interpretation, the factualcircumstances of the case in which it arose are irrelevant. No reference is made tothose matters, so no suppression orders are necessary in respect of the content of thisjudgment,2 and I grant leave for publication in respect of it.[4] Counsel for both the appellant and the respondent respectively submit that theCPMIP Act applies to criminal charges before the Youth Court. Ms Jerebine has beenappointed to assist the Court and identify any contrary arguments.[5] Counsel for the appellant, New Zealand Police, argues the following:(a) Under s 5 of the CPMIP Act, that statute applies to "criminalproceedings in which a defendant is charged with an imprisonableoffence". Proceedings in the Youth Court under pt 4 of the OT Act areplainly criminal proceedings and so qualify. While most young peoplecannot ultimately receive sentences of imprisonment,3 the offences theyface are nevertheless imprisonable. Other legislation, such as theCrimes Act 1961 and the Evidence Act 2006, applies within theYouth Court jurisdiction even though it is not expressly referred to insch 1 of the OT Act.(b) Parliament expressly carved out proceedings brought under theArmed Forces Discipline Act 1971 but did not expressly exclude theapplication of the CPMIP Act for the Youth Court.(c) There are indications in the text of the legislation that the CPMIP Actapplies to the Youth Court:2 Section 438 of the OT Act has a general prohibition on reports of proceedings under pt 4. Section438(3) continues to prohibit any publication of identifying details of the young respondent.3 Section 283 OT Act outcomes do not include imprisonment as a response option. A sentence ofimprisonment is only possible if a young person is transferred to the District Court and hascommitted a serious offence in terms of s 18 of the Sentencing Act 2002, being one punishable bymore than 14 years' imprisonment.(i) there is an express reference in s 333(2)(a) of the OT Actconcerning empowering the Youth Court to order a report todetermine whether the young person is unfit to stand trial withinthe meaning of s 4 of the CPMIP Act;(ii) s 185 of the OT Act expressly excludes the application ofss 38-44 of the CPMIP Act, but not other provisions of the Act;and(iii) the Intellectual Disability (Compulsory Care andRehabilitation) Act 2003 contains principles governingdecisions affecting children and young persons. The only entrypathway to that Act is through the CPMIP Act.[6] Counsel submits that the converse interpretation as found by Judge Parsonsdoes not best serve the purposes of the OT Act where there is a potentially unfit youngperson before the Youth Court. In particular:(a) If a young person is found unfit in terms of a report ordered unders 333(2)(a), then no involvement hearing could occur, so thesufficiency of the evidence underpinning the charge would be untested.(b) As the alleged offending has not been proved, there would be nooutcome to the criminal charge available under s 283 of the OT Act.This would mean that the only available option would be to dischargethe charge under s 282, in which case the charge is deemed never tohave been filed. Alternatively, if it appears to the Court that the youngperson may be in need of care and protection under pt 2, it may make acare and protection referral under ss 14, 19 and 280 of the OT Act.However, this could not include a prison or a secure hospital4 (becausethese are excluded in the definition of "residence").4 A hospital or a facility within the meaning of the Intellectual Disability (Compulsory Care andRehabilitation) Act 2002.[7] Counsel for the respondent also takes the position that Youth Courtproceedings are criminal proceedings to which the CPMIP Act applies. It is in the bestinterests of a young person that there is a well-defined statutory process to deal withissues of fitness. The difficulty with an alternative interpretation is that there is noprovision in the OT Act setting out a process for determining the involvement of ayoung person unfit to stand trial or achieving a satisfactory disposition of the matter.[8] Ms Jerebine submits that the Youth Court cannot order a report under s 38 ofthe CPMIP Act, and s 38 is the gateway to the substantive processes underss 8A and 10–12 of the CPMIP Act. Furthermore, the remedies available under s 24of the CPMIP Act are inconsistent with the outcomes available under the OT Act. Ifthe CPMIP Act does not apply, it is arguable that the Youth Court can fashion its ownprocedures to assess whether the charge is proved, and then determine an appropriateoutcome using s 283 of the OT Act. Otherwise, the care and protection options underpt 2 of the OT Act remain available. Ms Jerebine emphasised the inconsistency ofpotentially subjecting young people to detention in prisons or secure hospitals, whenthose outcomes are not available (because they are expressly prohibited) for youngpeople who are fit to stand trial and have charges proved against them in theYouth Court.Legislative background[9] The CPMIP Act began its life as the Criminal Justice Amendment Bill (No 7),5intended to reform pt 7 of the Criminal Justice Act 1985. It was later renamed theCriminal Procedure (Mentally Impaired Persons) Bill6 and had its third reading on21 October 2003. The changes were summarised as follows:7If a defendant is found to be unfit to stand trial, he or she will be made subjectto either an order for compulsory care if intellectually disabled, as providedfor in the accompanying Intellectual Disability (Compulsory Care) Bill, orcompulsory treatment in the case of those with mental illnesses, as providedfor under the Mental Health (Compulsory Assessment and Treatment) Act.5 Criminal Justice Amendment Bill 1999 (No 7) 328-1. This bill was introduced and had its firstand second reading on 5 October 1999, along with the Intellectual Disability (Compulsory Care)Bill 1999 329-1.6 Criminal Procedure (Mentally Impaired Persons) Bill 1999 328-2.7 (21 October 2003) 612 NZPD 9318 per Marc Alexander (United Future).But in order to balance that desire to ensure appropriateness of care andattention, the threshold for determining whether the accused is physicallyguilty of the crime is somewhat lower than normal. It is based on the balanceof probabilities rather than on the absence of reasonable doubt.[10] The Explanatory Note of the Intellectual Disability (Compulsory Care) Billexplained the relationship between the two bills and the lacuna they were intended toaddress:8Persons with an intellectual disability were included in the definition of"mental disorder" in the Mental Health Act 1969, which was later linked tothe Criminal Justice Act 1985. However, the Mental Health (CompulsoryAssessment and Treatment) Act 1992 deliberately excluded persons with anintellectual disability (unless they also have a mental disorder). This isbecause intellectual disability is now seen as a learning disability that resultsin substantial limitations in functioning. Unlike a mental illness, it cannot betreated. It is therefore inappropriate for persons with an intellectual disabilityto be subject to an order requiring them to undertake treatment.This exclusion created a legislative gap, for the offender group, between theMental Health (Compulsory Assessment and Treatment) Act 1992 andPart VII of the Criminal Justice Act 1985, resulting in limited options beingavailable to the courts for dealing with persons with an intellectual disabilitywho are charged with or convicted of an imprisonable offence. This hassometimes resulted in inappropriate placement in prison, mental healthservices, or discharge into the community. This Bill links with the CriminalJustice Amendment Bill (No. 7) to enable criminal courts to imposeappropriate orders for people with an intellectual disability.The Bill also applies to children and young persons who meet the criteria forintellectual disability and require long-term compulsory care because ofbehaviour which poses a serious danger to the health or safety of the child oryoung person or of others, if that behaviour cannot be managed withoutrelying on the Bill. Currently, persons with an intellectual disability under theage of 17 years are subject to the Children, Young Persons, and Their FamiliesAct 1989. The Children, Young Persons, and Their Families Agency haslimited options for providing appropriate services for children and youngpersons with an intellectual disability and whose behaviour poses a seriousrisk of danger to themselves or others. Currently, a small number(approximately 5) of such children and young persons are inappropriatelyplaced in Department of Social Welfare residences with others who do nothave an intellectual disability. This mix can exacerbate behaviour problemsfor both groups. Children and young persons with an intellectual disabilitywho are in need of compulsory care are more likely to respond to specialistservices tailored to their particular needs.8 Intellectual Disability (Compulsory Care) Bill 1999 329-1 at ii–iii.[11] As enacted,9 s 9 of the CPMIP Act provided as follows:A court may not make a finding as to whether a defendant is unfit to stand trialunless the court is satisfied, on the balance of probabilities, that the evidenceagainst the defendant is sufficient to establish that the defendant caused theact or omission that forms the basis of the offence with which the defendantis charged.[12] The reason for this provision was outlined in the Explanatory Note of theoriginal bill:10The new Part 7 includes procedural safeguards for persons found to be unfitto stand trial. The essence of being unfit to stand trial is that the person isunable to conduct a defence or instruct counsel to do so on their behalf. It hasalways been regarded as unfair to try people who are in this situation.However, there is currently no provision in the law for a procedure to establishthat a person detained after being found to be unfit to stand trial was in factphysically responsible for the act or omission that forms the basis of theoffence that they were alleged to have committed.Under the Bill, the court must be satisfied on the balance of probabilities thatthe evidence presented is sufficient to establish that the defendant caused theact or omission that forms the basis of the offence with which the defendanthas been charged before considering whether or not the defendant is mentallyimpaired and, if so, whether or not he or she is unfit to stand trial. All of thesematters must be determined by the court prior to a finding of unfitness to standtrial being entered.[13] The separation of a finding of fitness to stand trial, followed by an"involvement hearing", originated during the criminal procedure reforms that resultedin the Criminal Procedure Act 2011 (the CPA). Recommendation 105 of adepartmental report suggested the "involvement hearing" concept.119 It received assent on 30 October 2003 and came into force by Order in Council on1 September 2004 as the Criminal Procedure (Mentally Impaired Persons) Act 2003.10 Criminal Justice Amendment Bill (No 7) 328-1 at [2(c)].11 Ministry of Justice and New Zealand Law Commission Departmental Report for the Justice andElectoral Committee: Criminal Procedure (Reform and Modernisation) Bill (16 May 2011) at24 and 258.[14] Throughout the 2011 reforms, it continued to be clear that the CPMIP Act couldbe applied to young people in appropriate circumstances, consistent with s 174 beingincluded when the CPA was enacted in 2011.12 Section 174 of the CPA currentlyprovides:174 Remand of defendant under 18 years for assessment report(1) Any court may remand a defendant who is under 18 years in the custodyof the chief executive of the department for the time being responsiblefor the administration of the Oranga Tamariki Act 1989 for the purposesof an assessment report under section 38 of the Criminal Procedure(Mentally Impaired Persons) Act 2003 if—(a) the court is satisfied that the chief executive is able and willing tokeep the defendant in custody for the purpose of the assessmentreport for any period, not exceeding 14 days, that the court thinksfit; and(b) the court would (in the absence of section 171 or 172 or 175) haveremanded the defendant to a prison in accordance with section38(2)(b) of the Criminal Procedure (Mentally Impaired Persons)Act 2003 for the purposes of the assessment report.(2) If, in any case to which section 38(1) of the Criminal Procedure(Mentally Impaired Persons) Act 2003 applies, the defendant is under theage of 18 years, the provisions of section 38(2)(c) to (4) and sections 40to 44 of that Act must be read as if—(a) any reference to remand to a prison were a reference to remand tothe custody of the chief executive; and(b) any reference to the manager of a prison were a reference to thechief executive; and(c) any reference to penal custody were a reference to the custody ofthe chief executive.(3) If a person is remanded in the custody of the chief executive undersubsection (1), that person may, until he or she is brought up for hearingor sentence, be placed in any residence under the Oranga Tamariki Act1989, or under the care of any suitable person pursuant to that Act.12 This was cl 181 in the Criminal Procedure (Reform and Modernisation) Bill 2010 243-1, referredto in the Departmental Report, above n 11, at [858]. It remained cl 181 in the Criminal Procedure(Reform and Modernisation) Bill 243-2 (14 July 2011) and in the Criminal Procedure Bill 243-3A(29 September 2011).[15] As addressed further below, the legislature has focused on adaptations for howa compulsory health assessment should be conducted in respect of youth in variouscircumstances. There has been no suggestion in the legislative background that thesubstantive provisions of the CPMIP Act were not intended to apply to youth.AnalysisOT Act principles[16] Set out in the Appendix to this judgment is a high-level overview of thestructure of the two principal Acts in question in this proceeding — the OT Act andthe CPMIP Act. Before examining the way in which provisions of the two statutesinterrelate, it is important to consider the overall context of what the different parts ofthe statutes are seeking to achieve.[17] The OT Act is divided into 11 parts. Part 1 contains the purposes, principles,and duties of broad application. As shown in the diagram in the Appendix, ss 4A and 5are particularly relevant in this case. Section 5 sets out the principles to be applied inthe exercise of powers under the OT Act. The principles emphasise the importance ofencouraging and assisting children and young persons to participate and express theirviews, and the fact that the wellbeing of a child or young person must be at the centreof any decision-making that affects that child or young person. The principles alsorecognise the child or young person's place within their family, whānau, hapū, iwi andcommunity.[18] Section 4A was added on 1 July 2019. It distinguishes between mattersdetermined under pts 4 and 5, as opposed to under other parts. Accordingly, s 4A(1)applies for any determinations made under pt 2 concerning care and protection. Theparamount consideration for those matters is the best interests of the child or youngperson, having regard to the principles set out in ss 5 and 13.[19] In contrast, s 4A(2) recognises that more complexity arises with mattersdetermined under pt 4, dealing with criminal offending by young persons. In thosecircumstances, there are four primary considerations (to be considered along with theprinciples set out in ss 5 and 208):(a) the wellbeing and best interests of the child or young person;(b) the public interest (which includes public safety);(c) the interests of any victims; and(d) the accountability of the child or the young person for their behaviour.Part 2 of the OT Act[20] The Family Court administers pt 2 of the OT Act, providing for the care andprotection of children and young persons. This jurisdiction is civil in nature, reflectedin s 197 providing that the standard of proof is civil.[21] The Family Court is a division of the District Court, constituted under s 9(c) ofthe District Court Act, and s 11 of the Family Court Act 1980. In addition to thedefinition of "court" in s 2, s 150 reinforces that (subject to ss 151 and 341) allproceedings under pt 2 are heard by the Family Court.[22] The principles in s 13 emphasise (among other things) the desirability ofproviding early support and services to improve the safety and wellbeing of a child oryoung person at risk of harm, to reduce the risk of future harm to the child or youngperson (including the risk of reoffending) and reducing the risk that a parent may beunable or unwilling to care for the child or young person. The principles alsoemphasise the importance of strengthening and supporting the child or young person'sfamily, whānau, hapū, iwi and family group connections where possible, includingseeking to make decisions on a consensual or collaborative basis.[23] Section 14 defines when a child or young person is categorised as "in need ofcare or protection". The powers to remove a child or young person are contained inss 39–42 of the OT Act. These include the power to place a child or young person inthe custody of the chief executive. In those circumstances, s 43(1) provides optionsto place the child or young person with their family, whānau or family group or anyperson approved by the chief executive. If that is not practical, the chief executivemay place the child or young person in a "residence". The term "residence" is definedin s 2 and specifically excludes a prison, or a hospital or facility within the meaningof the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003.[24] The Family Court's jurisdiction to make a care and protection order iscontained in s 83 of the Act. There are some limited powers under s 84 to orderreparation or restitution of property that was taken by the child or young person, butfundamentally the regime under pt 2 is not designed to deal with criminal offending.Rather, criminal offending is dealt with under pt 4 or, in very serious cases, theDistrict Court or High Court. Part 2 is not designed to protect the public or victims.Part 4 of the OT Act[25] The Youth Court is a division of the District Court, constituted under s 9(c) ofthe District Court Act. In addition to the definition of "court" in s 2, s 272 of theOT Act reinforces that the Youth Court has jurisdiction over all criminal proceedingsbrought under pt 4.[26] Section 7(3) of the CPA provides that the CPA does not apply to proceedingsin the Youth Court, except as expressly provided in the OT Act. Correspondingly,s 321 of the OT Act provides that the provisions set out in sch 1 apply, with suchmodifications as are necessary or set out in that schedule. Section 321(1) does notpurport to provide a comprehensive list of all statutes that could be applicable withinthe Youth Court's jurisdiction. Rather, sch 1 of the OT Act lists specific provisionsthat are modified or signalled as requiring modification. I accept the appellant'ssubmissions that other legislative provisions may still be applicable within theYouth Court jurisdiction, even if not listed in sch 1. This includes the Crimes Act andthe Evidence Act 2006.[27] Section 208 lists the principles applicable for the Youth Court jurisdiction, tobe applied in conjunction with those set out in ss 4A(2) and 5. These expand on howthe four primary considerations should be applied. Although wellbeing and bestinterests of the child or young person remain a primary consideration, the publicinterest, the interests of any victim, and accountability of the child or young personmust also be considered. This is appropriate in a criminal context, in a way that doesnot arise under pt 2.[28] Section 208A provides that a child or young person may only be subjected tothe processes under pts 4 and 5 while the Youth Court is considering how allegationsof offending are to be dealt with or is disposing of criminal proceedings. Accordingly,at the point where criminal proceedings are not continuing, jurisdiction underpts 4 and 5 comes to an end.[29] Some of the procedures for the Youth Court are contained in ss 245–271 of theOT Act. Rather than pleading guilty or not guilty, a decision must be made unders 246 about how to answer the charge. If the charge is denied, then it must be dealtwith in accordance with ss 273–276. In all other cases, the default next step is toconvene a family group conference.[30] Under ss 280 and 280A, the Court has the power to refer a case to the care andprotection coordinator, or to a person who commenced a proceeding of a certain type,to determine whether the young person may need care or protection under pt 2.[31] The powers of the Court for determining the criminal charges are contained inss 282–283. The Court may discharge the charge under s 282. Alternatively, if it issatisfied that a charge against a young person is proved, the Youth Court may makeone or more of the orders set out in the hierarchy under s 283. Of those potentialresponses, the least restrictive is the jurisdiction to discharge the young person fromthe proceedings without further order or penalty. The most restrictive response is toenter a conviction and require sentencing to take place before the District Court or theHigh Court. In deciding what orders to make under s 283, the Court is required tohave regard to the matters set out in s 284.[32] Consistent with the explanatory note referred to at [12] above, there is noprovision in the OT Act, or as a matter of general law, for a procedure to establishwhether a person found unfit to stand trial was physically responsible for the act oromission that forms the basis of the offence. The range of responses available unders 283 all require a finding that a charge against a young person is proved, but it hasalways been regarded as unfair to try people who are unfit to stand trial. Accordingly,I do not accept that the Youth Court has jurisdiction to fashion its own processes to"prove" criminal facts against a person who is unfit to stand trial.13The CPMIP Act and the OT Act[33] Rather, the CPMIP Act was specifically designed to address thosecircumstances, and suitable adaptations have been made to cater for the CPMIP Act toapply within the framework of the OT Act, either in a context where care andprotection orders are sought under pt 2, or within the Youth Court's criminaljurisdiction under pt 4. In particular, the adaptations relate to how a compulsory healthassessment may be conducted. Otherwise, there is nothing in the legislation or draftingbackground to suggest that the substantive provisions of the CPMIP Act were regardedas inappropriate for young persons.[34] I accept the submissions of the parties that the CPMIP Act applies forproceedings under pt 4 of the OT Act because they are "criminal proceedings in whicha defendant is charged with an imprisonable offence".14 Accordingly, s 5 of theCPMIP Act makes that Act applicable, whether or not it is also referred to in s 321 andsch 1 of the OT Act.[35] In the diagram in the Appendix, the provisions for conducting compulsoryhealth assessments are identified with double-lines and arrows. The primary provisionfor conducting a compulsory health assessment for the purposes of the CPMIP Act iss 38 of that Act. The power to require an assessment under s 38 is much broader than13 As a division of the District Court created by statute, the Youth Court lacks inherent jurisdiction,but it shares with all courts the implied power to do what is necessary to exercise its statutoryfunctions, powers and duties: McMenamin v Attorney-General [1985] 2 NZLR 274 (CA) at 276.In other words, a power exists only where necessary to give effect to the substantive jurisdiction:District Court at Christchurch v McDonald [2021] NZCA 353, [2021] 3 NZLR 585 at [29].14 Criminal Procedure (Mentally Impaired Persons) Act s 5. See also pt 4 proceedings are describedas "criminal proceedings" in s 208(2)(a) and (b) of the Oranga Tamariki Act.just evaluating whether the person is unfit to stand trial. It can also be used todetermine whether the person is insane within the meaning of s 23 of the Crimes Act,or to help with assessing the type and length of sentence that should be imposed, orany conditions or requirements that might be imposed as part of a sentence or order.[36] However, the substantive provisions of the CPMIP Act do not require anyassessment report under s 38. The substantive determination of whether a person isunfit to stand trial takes place under s 8A of the CPMIP Act. That provision requiresthe evidence of two health assessors as to whether the defendant is mentally impaired.That evidence can be adduced, for example, following a voluntary health assessmentof a defendant who is not in custody. The standard of proof is the balance ofprobabilities.15 Natural justice processes must be followed, as provided for ins 8A(2)(a).[37] If the Court is satisfied that the defendant is unfit to stand trial, then the nextstep is an "involvement hearing", namely an inquiry under ss 10, 11 or 12 to determine,on the balance of probabilities, whether the evidence against the defendant is sufficientto establish that the defendant caused the act or omission that forms the basis of theoffence with which the defendant is charged. This is the concept introduced in the2011 amendments referred to above, which was an adaptation of the proceduralsafeguard in s 9 of the statute as originally enacted.[38] The potential detention, treatment and care orders available under ss 24–25only apply if the Court is satisfied that there was that degree of involvement.Otherwise, s 13 provides that the Court must dismiss the charges and quash theunfitness finding.15 Criminal Procedure (Mentally Impaired Persons) Act, s 8A(3).[39] I now address the three adaptations for how compulsory health assessmentsmay be conducted on a young person for the purpose of assessing fitness to stand trial:(a) Section 174 of the CPA (set out at [14] above) expressly provides thatany court may order a compulsory health assessment under s 38 of theCPMIP Act for a young person, but with the modifications set out ins 174(2). Section 174(2) also refers to and modifies ss 40 to 44 of theCPMIP Act. Broadly, references to a prison are replaced with thecustody of the chief executive under pt 2 of the OT Act. Section 174appears in pt 5, sub-pt 1 of the CPA. Section 321(1) of the OT Actprovides that the provisions set out in sch 1 shall apply to Youth Courtproceedings, with such modifications as are necessary or set out in thatschedule. Schedule 1, cl 2 of the OT Act applies sub-pt 1 of pt 5 of theCPA, with no express modifications to s 174. Accordingly, on its face,s 174 of the CPA is an available power for the Youth Court exercisingits criminal jurisdiction under the OT Act.(b) Section 185 of the OT Act provides that, "[i]n respect of any person towhom an application for a care or protection order relates", ss 178–183have effect in place of the provisions of s 38–44 of the CPMIP Act. Thefact that only those provisions are replaced implies that the balance ofthe CPMIP Act does apply. I note that s 5 of the CPMIP Act stillrequires criminal proceedings, so that the CPMIP Act does not applymerely because care and protection orders have been sought under pt 2.(c) For the purposes of a pt 4 criminal proceeding, s 333 in pt 5 provides apower for the Youth Court to request that medical, psychiatric, andpsychological reports are prepared using the same powers provided forin ss 178–185 (pt 3). Section 333(2)(a) specifically provides that oneof those potential purposes is assessing whether the person is "unfit tostand trial" in terms of s 4 of the CPMIP Act.[40] The key substantive differences between the above pathways to a compulsoryhealth assessment are set out in the table below:Sections 38–40 CPMIP(with s 174 CPAmodifications)Section 178–183 OT Act Part 4, s 333 OT Actmodifications toss 178-183Trigger For s 38 to apply, theperson must already bein custody. This does notseem to apply unders 174(1), which allowsremand of a defendantin[to] the custody of thechief executive for thepurposes of anassessment report.Requires an "applicationfor" a care and protectionorder.At any stage of anyproceedings under pt 4.Venue Section 38(2): hospital orsecure facility or custodyof chief executive[replacing "prison"]Section 178(1): placewhere the young personis in the custody of thechief executive ordetained in residence; orSection 181: in hospitalif two healthpractitioners certify theneedSection 178(1): wherethe young person is incustody or detained inresidence; orSection 181: in hospitalif two healthpractitioners certify theneedInitial timelimitSection 38(2): 14 days Section 181: 5 days if inhospitalSection 181: 5 days if inhospitalExtensiontime limitSection 40: 30 days Section 181(2): 14 daysif in hospitalSection 181(2): 14 daysif in hospitalPost-assessmentpreventativedetention:Section 44: Detention inhospital or secure facilitypending the hearing ortrial- -[41] There is a question of circularity about how the above provisions interrelate.In particular, I have considered whether the approach adopted in s 174 of the CPA(of amending but applying ss 38–40) is superseded by ss 185 and 333 replacing thoseprovisions with ss 178–183 for the purposes of pts 2 and 4 of the OT Act. This ismaterial because of the time limits for the assessment, the potential venue and, mostimportantly, whether there is any preventative power to detain pending hearing or trialunder s 44 of the CPMIP Act.[42] In the decision appealed, Judge Parsons took the view that:16(a) the incorporation of sub-pts 1 and 2 of pt 5 of the CPA is only so aDistrict Court judge may remand children and young people who aresubject to District Court proceedings to the custody of thechief executive of Oranga Tamariki instead of prison while on remandawaiting sentence or assessment; and(b) this does not suggest that these provisions provide more generally forthe CPMIP Act to apply to children or young people appearing in theYouth Court, because the importation under s 321 is "subject to theprovisions of the OTA".[43] I take a different view, and consider that the pathway under s 174 to ss 38–40of the CPMIP Act is separately available as an alternative for the Youth Court inappropriate circumstances, for the following reasons:(a) Section 174 of the CPA was enacted in 2011, well after ss 185 and 333of the OT Act, yet it expressly addressed how ss 38 and 40–44 relate topowers under the OT Act. Coming later, there is no implication thatss 185 and 333 of the OT Act were intended to override s 174 of theCPA.1716 New Zealand Police v MNW, above n 1, at [158]–[170].17 As discussed in Ross Carter Burrows and Carter Statute Law in New Zealand (6th ed, LexisNexis,Wellington, 2021) at 615–619, if two statutory provisions are totally inconsistent with each other,so they cannot stand together, the later in time can be said to impliedly repeal the earlier. However,where they can be reconciled or interpreted as standing together as alternatives, that interpretationwould generally be preferable.(b) Schedule 1 of the OT Act applies sub-pt 1 of pt 5 of the CPA withoutmaking any modifications to s 174. It would have been relativelysimple to state that the Youth Court is not intended to have such powers,even though the words "any court" in s 174(1) are broad enough toinclude the Youth Court. I also do not see why it would be necessaryto import the section conferring jurisdiction to order remand in thatway, if the interface was solely intended to be with the role of the chiefexecutive under pt 2 (which are not Youth Court proceedings in termsof s 321), or the power to grant an approval to extend under s 376(5)which, in my view, is already sufficient to achieve that purpose in itsown terms.(c) The Youth Court having those wider powers is consistent with thelegislature's policy reasons for addressing the lacuna (see [10] and [12]above).(d) The scope of s 333 reports is broad, including potential purposes ofconsidering orders and conditions where no issues of public safetyarise. Section 174 of the CPA (incorporated via s 321 and sch 1) isspecific to the circumstances of the CPMIP Act, so there is a properrationale for the range of potential interim powers to match the finalpowers available under ss 24 and 25 of the CPMIP Act.[44] Relatedly, I have also considered the submissions and finding in the decisionappealed from18 that the orders available under s 24 of the CPMIP Act are inconsistentwith the more restrictive provisions of the OT Act, including the exclusion of prisonand secure hospitals from the definition of "residence" and sentencing options. I donot accept that this necessarily indicates a legislative intent that the substantiveprovisions of the CPMIP Act could not apply to young persons before the Youth Court.The Youth Court exercising its criminal jurisdiction under pt 4 will be subject to theprinciples and primary considerations in ss 4A(2), 5 and 208, including when applyingthe CPMIP Act. These require the least restrictive outcome to be imposed that is18 New Zealand Police v MNW, above n 1, at [171]–[175].consistent with those principles. So, the powers are fettered. As identified in thepolicy for introducing the CPMIP Act, there are circumstances where detention in ahospital or secure facility may be necessary, taking into account those four primaryconsiderations. The combined circumstances of mental impairment and criminaloffending potentially make those outcomes necessary, even if they are notcontemplated or available in the ordinary circumstances addressed by pts 2 and 4 ofthe OT Act. However, I do acknowledge that s 30(1)(b) of the CPMIP Act restrictsdetention under s 24 of the CPMIP Act to half the maximum term of imprisonment towhich the defendant would have been liable if convicted. For a young person beforethe Youth Court, it is the constraint in s 30(1)(b) that may effectively preclude a s 24solution.[45] Applying the above analysis, in terms of the questions of law outlined aboveat [2], I answer them as follows:(a) Yes, the CPMIP Act does apply to Youth Court proceedings. The YouthCourt exercises jurisdiction in criminal proceedings in terms of s 5 ofthe CPMIP Act, even if a term of imprisonment is not usually one ofthe potential outcomes. The CPMIP Act applies as a whole, subject tonecessary adjustments, such as how discharges are granted or appealspursued. There are specific adjustments made in ss 185 and 333 of theOT Act, substituting ss 178–183 in place of ss 38–44 of the CPMIP Act.However, sch 1, cl 2 of the OT Act applies sub-pt 1 of pt 5 of the CPA,with no express modifications to s 174. The result is that a s 38 reportcan be ordered by a Youth Court using that alternative pathway, insuitable circumstances. Given the principles in ss 4A(2), 5 and 208 ofthe OT Act, a report under s 333 would usually be more suitable to theextent it is less intrusive and provides more comprehensive protectionsfor the young person (for example, the duty of a health professionalcarrying out a medical examination to cause the least distress to theyoung person possible under s 12, perhaps involving shorter periodsand an assessment done in residence).(b) The District Court has jurisdiction under the CPA, including s 174which adapts s 38 of the CPMIP Act for application to young persons.The Youth Court exercising its own jurisdiction under pt 4 has adifferent alternative option of requiring a s 333 OT Act report. In allcases, the Youth Court will have obligations to consider and give effectto the principles in ss 4A(2), 5 and 208 of the OT Act when decidingwhich report to order and applying the substantive provisions of theCPMIP Act.(c) The Youth Court has jurisdiction to order a s 333 OT Act report.Alternatively, in appropriate circumstances, I find that it may order ahealth assessment under s 38 of the CPMIP Act, via s 321 and sch 1 ofthe OT Act, and s 174 of the CPA. For the purpose of determining thesubstantive question under s 8A of the CPMIP Act whether the personis unfit to stand trial, what matters is the substance of the reports fromthe health assessors and whether they satisfy the statutory requirements,rather than how they were sourced. For example, a determination maybe made under s 8A based on health assessments that were obtainedwithout a compulsory order. Section 8A requires consideration ofreports by two different health assessors before a determination may bemade. It may be possible to challenge the validity or admissibility ofhealth assessments that the Youth Court purported to order outside ofthe proper scope of the statutory provisions. In my view, a proceduralerror of this type does not necessarily preclude consideration of thereports on their merits.19(d) If the Youth Court determines that a young person is unfit to stand trial,then the process under the CPMIP Act is available to conduct aninvolvement hearing and then consider what is the most suitablemethod of dealing with the person in terms of ss 23–25 of the CPMIPAct, taking into account the constraint of s 30(1). The Youth Court19 For example, in a criminal proceeding where the prosecution proposes to offer evidence that mayhave been improperly obtained, then a Judge must determine under s 30 of the Evidence Act 2006whether the exclusion of it would be proportionate to the impropriety.retains its powers under s 282 of the OT Act to discharge and unders 280 to refer for a determination of whether care and protection ordersare appropriate under pt 2. However, the intention of the legislaturewhen enacting the CPMIP Act was to fill a lacuna and provide for aspecial process leading to outcomes that could more suitably addressthe circumstance of a person with mental impairment who committed acriminal act but who is not fit to face trial. The Youth Court is notrestricted to its powers under ss 280 and 282, given that thoseprovisions and their related facilities were not designed to deal withsuch circumstances.____________________O'Gorman J