There was the man who punched someone in the head but only did so, he explained, because he was wanting to dislodge a scorpion off his victim’s face. There was another man who broke into a neighbour’s house and smashed a large pot plant due to his belief that the woman placed his family in imminent danger.
And later that afternoon, at a very particular set of hearings at the Auckland District Court in early May, there was the man who entered courtroom 11 with a wide, wonderfully warm smile, soon began to wheeze with laughter, tried to hold it in, but the dam burst and he fairly roared with laughter, actually cried with laughter – and then he stopped laughing, and all that was left were tears.
It was a strange and quite often terribly sad day but not unusual, not at all rare; the Criminal Procedure (Mentally Impaired Persons) Court (CPMIP) sits every fortnight, designed to assess the mental health of criminal defendants. It was co-founded five years ago by judges Pippa Sinclair and Clare Harvey. It functions only in Auckland, as New Zealand’s most populated catchment of the mentally ill. It decides whether defendants are unfit to stand trial and whether they are insane. It essentially serves as a court of the mad. (Outside of Auckland, a request from the defendant’s lawyer or the police may lead to a mental fitness assessment.)
I attended a session in May. Judge Sinclair presided. Nineteen defendants appeared. One of its central ideas operates as a paradox: it’s the court to go to in order to not go to court. Once found unfit, a defendant must be dealt with outside the criminal justice system. Prison is not an option. The CPMIP protects the mentally ill from the untender mercies of ordinary criminal courts. It provides a safer place, somewhere more attuned to their situation and their needs; it specialises in madness, recognises the multiple disorders. And so that Tuesday in courtroom 11 was all about the admirably swift and efficient processing of people who have lost their mind.
Names were suppressed, and so were their medical histories. The range of mental health issues included schizophrenia, anxiety disorder, agoraphobia, substance abuse and brain damage. The most common charge was assault. “I’m going to kill you,” one man was alleged to have told his mother. Police said he pinned her arms behind her back and shoved her against a garage door. He leaned closer, and hissed, “You’re going to be murdered, bitch.” Judge Sinclair, a gracious woman with a warm, consoling voice, found him not criminally responsible. He would be held in custody until a bed became available at the Mason Clinic. He sat in the dock, his right arm shaking uncontrollably. He tried holding it down with his left hand. Two police officers stood on either side of him, bulked up in black body armour.
I was joined in the morning session by Warren Brookbanks, a professor of criminal law and New Zealand’s leading academic expert on fitness to stand trial. He had come from a dental appointment. The news was not great. He could only grin, bear it and prepare to pay a small fortune. The court allowed him an opportunity to take his mind off it, and he followed the session with intense and practised interest. We sat together in the public gallery and he gave a running commentary on Judge Sinclair’s performance. “Yes,” he whispered. “Very good. Very good.” On a later decision: “Well. That was interesting. Perhaps an abundance of caution.” The next case saw him return to a positive review. “Oh, well done. Yes. Very good.”
He first published articles on the subject in 1982. “Back then,” he said, “you could count on the fingers of one hand the cases in New Zealand where the issue of fitness had ever been argued. It was that rare. It just never arose as a trial issue.”
Upwards trend
A report in Australasian Psychiatry studied 415 defendants who were assessed for fitness in New Zealand between 2014 and 2022. It found that the most common primary diagnoses were psychotic disorders and intellectual disability. They were 81% male and had a median age of 31.
In 2020, 190 people were found unfit to stand trial. The figure was quoted in a study by Brookbanks and forensic psychiatrist Dr Jeremy Skipworth; they also noted that 49 people were found not guilty by reason of insanity, the highest number of insanity acquittals in one year on record in New Zealand, “and that number has been trending up steadily”. They still are, Brookbanks estimated, here and around the world.
“It’s because there’s been a big influx of people coming into the criminal justice system in many jurisdictions. The first issue that arises is, are they fit to stand trial? And often it’ll be driven by things like substance abuse.”
Rulings on fitness require two psych reports. To be ruled unfit to stand trial is to find that a defendant is unable to conduct a defence or instruct counsel, and would fail to adequately understand what’s going on around them in the weird settings of a court proceeding.
We have to balance the safety of the community with a defendant’s right for protection.
If defendants are found to be fit, they are herded off to the district court to stand trial and are no longer the business of the CPMIP. There were two such instances in courtroom 11. One referred to a man charged with arson. He looked a great deal like Billy Connolly in his long-bearded prime. His appearance in the dock was brief. Two reports had both found him fit to stand trial.
With each defendant, Judge Sinclair turned to address them directly and include them in the proceedings, always asking whether they understood what she was saying. Everyone said they did but there were at least two people who plainly had no idea, such as the man who stared straight ahead on the AVL (audiovisual link) filmed sitting in front of a circle of chairs at the Mason Clinic.
But the alleged arsonist knew the score. “The defence of insanity is unavailable to you,” the judge told him. “You will be discharged from this court and be remanded to trial. You do not have the defence of sanity. Do you understand?”
“Okay,” acknowledged the apparently quite sane Billy Connolly lookalike. “Cool.”
Disposal options
It was more common that day for defence lawyers to have to tell Judge Sinclair they were still waiting on the psych reports. Sometimes they had one report, and were waiting for the next; sometimes they had neither, and threw their hands in the air. “Her appointment keeps breaking down,” said counsel for a wild-haired woman who chewed gum in court. She had been waiting for two months. Judge Sinclair said, “I understand there’s a lot of pressure on the system.”
But the system was working for the majority of defendants. They had received both psych reports, and the majority were found insane, and unfit to stand trial. “I am satisfied he did not understand his actions were morally wrong,” Judge Sinclair said to the defence counsel who represented the man who threw his mother against a garage wall and threatened to kill her. The judge then turned to the defendant and said, “I have found you insane.” He didn’t seem very concerned by that revelation. He stood up, shaking, and asked whether it was possible for him to contact his mother. “That has to wait,” said the judge, “and it will have to be carefully managed.” Once a bed was made available, he would be transferred to the Mason Clinic.
The genesis of the CPMIP was a change of legislation in 2003. The government created a new statute: the Criminal Procedure (Mentally Impaired Persons) Act, which covers issues around defendants who are found unfit or legally insane. New provisions set out “the disposal options”, as Professor Brookbanks put it, for defendants who have been found unfit to stand trial. He meant that CPMIP judges have the power to make dispositions, a kind of sentencing order. Options include being detained as a special patient, typically in a forensic unit like the Mason Clinic, for a maximum of 10 years before they can be reassessed.
It was a strange and quite often terribly sad day but not unusual, not at all rare.
“Another option is that they be immediately released,” Brookbanks continued. “The court can decide after hearing psychological evidence that there’s no need for them to be detained for mental health treatment. We can just release them. That happens very, very rarely. There’s only one case that I can recall anecdotally, and it was many years ago now, where a man was charged with the murder of his anorexic daughter.
“He was found not guilty by reason of insanity. By the time he came for disposal, with the source of his problem gone in a tragic sense, his mental health recovered. He didn’t need treatment in the psychiatric hospital. The court ordered his immediate release. He didn’t receive any penalty at all. They just released him with no further claim on him from the criminal justice system, because he’d recovered by the time of the disposal hearing.”
I said, “Jesus Christ.”
He said, “Well, yes. Or for example you could have a situation where a person committed an offence while they were suffering from acute schizophrenia. No question that they were insane at the time of the commission of the offence. But sometime later the matter is brought forward for trial, and by then they have been receiving the appropriate treatment medication for their acute condition. They are fit to be tried. They go to trial and then run the insanity defence, successfully.”
There are almost endless combinations. In courtroom 11, Judge Sinclair decided that the laughing man, of all people, was fit to enter a plea. “He is much improved today,” claimed his lawyer, a young man in a cheap suit. The judge turned to the defendant, and said slowly, “Your lawyer thinks you are fit to plea but not fit to stand trial.” She agreed. The man grinned from ear to ear. Eight charges were read out; they included indecent exposure on Khyber Pass Rd. This brought on a massively loud LOL. “I appreciate,” the judge told him, “that appearing in court can be difficult.”
A communications assistant was advised to go into the dock and sit beside him. She held his hand. He put his finger against his lips and quietened down. His mental health history was presented in court. It drew the outlines of an awful and tragic existence, of homelessness and beatings, of life on the margins. The judge said, “I am satisfied he has a mental impairment.” He entered a plea of guilty. There was an ongoing wait, said his lawyer, for one of the psych reports.
Assessing risk
I spoke with Judge Sinclair after court finished in the afternoon. She worried there are limited options on what to do with defendants found unfit to stand trial. There are only two available outcomes – they can be committed, or classified as a special patient – but some defendants are ineligible for either option. It presents “a grave concern” in terms of safety for both the defendant and the public.
“It isn’t a therapeutic court,” she said of the CPMIP. “It’s a statute court. I like to think we deal with people empathetically, but we have to address risk factors. We have to balance the safety of the community with a defendant’s right for protection.”
There was the woman who swayed in the dock and faced 15 charges. She had gone to the Eastridge Shopping Centre, asked for money for a taxi, snatched a purse, ran off, and was found by police in Mission Bay, where she said to the arresting officer, “That vest better be stab-proof, bitch.” She was trespassed from The Warehouse in Glenfield. She stole $1700 of duvets from Briscoes. She stole $79 of fragrances from Farmers. She stole $350 of food from Countdown in Northcote. “I am satisfied all the charges are proven,” the judge said, and found the woman unfit.
There was the old man who sat in the dock and could not hear a word because his hearing aids had not been charged. “I tried yelling at him,” his lawyer said, “but I don’t think he had an adequate understanding.” He was charged with wounding with intent to commit grievous bodily harm in a retirement village. (“Dementia,” the judge said later, in our interview, “is a growing industry.”) He was found unfit.
They came and went, men and women, old and young, weeping and shaking, the walking mentally wounded, most in person, some on AVL from the Mason Clinic like the man who was told his mother was in court, and called out, “Hi, Mum!” A woman appeared on AVL lying down on a hospital bed. “I apologise for my state of undress,” she said. She appeared to have paper tissues stuffed in both her ears. She looked in a pretty bad way. But it turned out she was actually a defence lawyer.