The Supreme Court said in a decision made public today that it was a tragic case, but releasing J into the community could only lead to further tragedy. Photo / Mark Mitchell
A family have gone all the way to the Supreme Court to try to secure an autistic man’s freedom after he’s been in care for nearly 20 years for minor offending.
However, while the appeal has been partly successful in showing the Court of Appeal was wrong on one point, the man who once described himself as James Bond will not be released because of the risk he poses to himself and the wider community.
The 41-year-old, who presented a “highly complex case”, has lived in a secure facility for decades, after a compulsory care order was first made in 2006.
The order was made on the back of a finding that he was unfit to stand trial on two charges of minor property-related offending – being in an enclosed yard without reasonable excuse and wilful damage.
The man was living with his mother when in June 2004 he carried an axe on to a neighbour’s property. He said he was “James Bond” and used the axe to break windows in the neighbour’s garage and van.
A judge found at a later disposition hearing that the man had an intellectual disability. His risk to his health and the safety of others was such that a secure care order for a term of two years was considered necessary.
The compulsory care order has been extended multiple times since 2006, most recently for a period of three years from April 2023, on the grounds of the risk posed to the community if he were released.
The judge noted the likelihood he would return to his mother’s home, which evidence showed did not meet the required standards either in terms of security or staffing.
The man was transferred early on from a care facility to a secure hospital-level service, following reports of his absconding, hiding weapons and property damage.
In 2017, the Family Court extended the order by 18 months and varied it to a “secure” order, under which he was transferred to a psychiatric hospital.
Appeals lodged on his behalf challenged the validity of the compulsory care order’s renewal on multiple occasions.
The man, supported by his mother, who acted as his welfare guardian, wanted his detention to end so he could live with her.
Appeals to the High Court and Court of Appeal failed after it was found that the man posed a “high or very high risk” of committing acts of violence if released from care.
His main argument in relation to the initial offending was that the period of detention must be proportionate to the original crime.
The Supreme Court acknowledged it was apparent that detention itself had adversely affected the man.
A doctor’s view was that he appeared to have become “increasingly less treatable over the years”, as his behaviour created “major impediments to fostering any level of therapeutic engagement”.
“Against this background, it can be seen, albeit with the benefit of hindsight, that there were opportunities to allow [him] to be cared for in a less restrictive environment at a much earlier point in time.
“Indeed, it can also be said that the failure to release [him] earlier goes some way to explaining why [his] case presents as an intractable problem for both courts and caregivers,” Justices Joe Williams, Forrest Miller, Dame Helen Winkelmann and Dame Ellen France said in a decision made public today.
In the High Court, the judge addressed several matters, including the man’s appeal of the Family Court’s decision in 2017 to extend the decision; an application for judicial review addressing his “arbitrary detention”, the “discriminatory nature” of the legislation and other breaches of the Bill of Rights.
The Court of Appeal heard a joint appeal against the High Court judgment and an appeal against a subsequent decision of the Family Court in 2020 to extend the compulsory care order.
The Appeal Court dismissed both appeals in December 2023.
The Supreme Court granted leave to appeal and asked that three matters be addressed, including the correctness of the approach to the decision to extend a compulsory care order.
It also asked whether there have been breaches of the man’s rights, and the consequences of any breaches if found.
The appeal to the Supreme Court has partly succeeded, but the man will remain in care.
The justices said it was a tragic case, but releasing the man into the community could only lead to further tragedy.
The higher court found by a majority that the Court of Appeal was incorrect in its approach to a section of the Intellectual Disability (Compulsory Care and Rehabilitation) Act.
“Given the conflict of rights in this case, the law’s primary impulse must be to ensure that [he] continues to receive care in an environment in which he and others will be kept safe,” the Supreme Court said.
Final determination of the man’s circumstances will require updating evidence to be considered by the Family Court.
Tracy Neal is a Nelson-based Open Justice reporter at NZME. She was previously RNZ’s regional reporter in Nelson-Marlborough and has covered general news, including court and local government for the Nelson Mail.