Capacity to Stand Trial: Old and New in New Zealand

Abstract

The law of fitness (or capacity) to stand trial is, in many jurisdictions, comprised of a mixture of older common law principles and more recent statutory rules. The key to understanding the area is appreciating how the principles drawn from these two sources interact. New Zealand law is used to illustrate this point. It shows how recent statutory provisions may be read as restatements of the older common law principles, or as modifying the procedures through which the older principles are expressed. New Zealand law thus illustrates the typical manner in which the core principle in this field of law, concerning the capacity of an accused person to participate in their trial, is given contemporary effect.

Key words:

• capacity
• competence
• fitness to stand trial
• mentally disordered offenders

Acknowledgements

This paper was presented as an address to the annual conference of the Criminal Bar Association of New Zealand, in Queenstown, in August 2007.

Notes

 1. On this legislation generally, see W Brookbanks and A Simpson (eds), Psychiatry and the Law (LexisNexis, Wellington, 2007).

 2. R v Cumming [2006] 2 NZLR 597.

 3. By s 108 of the Criminal Justice Act 1985 (NZ). That provision relied in turn on a definition of ‘mental disorder’ that had been constructed for a different purpose, found in NZ's civil commitment legislation: s 2 of the Mental Health (Compulsory Assessment and Treatment) Act 1992.

 4. See J Dawson, ‘Forensic psychiatry and public law’, in W Brookbanks and A Simpson (eds), Psychiatry and the Law (LexisNexis, Wellington, 2007) 101–22.

 5. R v Pritchard (1836) 7 Car & P 304; 173 ER 135.

 6. Ibid.

 7. Ibid.

 8. Ibid.

 9. R v Hill (1851) 2 Den 254; 169 ER 495.

10. R v Harawira [1989] 2 NZLR 714.

11. R v Hill (1851) 169 ER 495 at 495.

12. Ibid.

13. Ibid [495–96].

14. Ibid [497].

15. Ibid [499].

16. R v Carrel [1992] 1 NZLR 760.

17. Trow v Police, unreported, Nicholson J, High Court, Auckland, 10 September 2004, CRI 2004-404-208.

18. See especially S v Police, unreported, High Court, Mackenzie J, Palmerston North, 8 December 2005, CRI-2005-454-047; R v Roberts, unreported, High Court, Fogarty J, Auckland, 22 November 2006, CRI 2005-092-014492; R v Daniel [2007] NZCA 15.

19. See s 2 of the Mental Health (Compulsory Assessment and Treatment) Act 1992 (NZ).

20. R v Duval [1995] 3 NZLR 202.

21. R v Daniel [2007] NZCA 15; see W Brookbanks, ‘Fitness to stand trial’, (2007) New Zealand Law Journal 394–98.

22. I Freckelton, ‘Assessment of fitness to stand trial’, in Fitness to Plead in the 90s, Legal Research Foundation, Auckland, 14.

23. P v Police [2007] 2 NZLR 528.

24. Ibid [539].

25. R v Roberts, unreported, High Court, Fogarty J, Auckland, 22 November 2006, CRI 2005-092-014492.

26. R v Roberts, unreported, High Court, Fogarty J, Auckland, 22 November 2006, CRI 2005-092-014492 at para 54.

27. Ibid [para 57].

28. Ibid.

29. T v H [1995] 3 NZLR 37 at 60–61.