s 38 report

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Court cracks down on delays in producing s 38 reports

17 Mar 2023

Criminal Procedure (Mentally Impaired Persons) Act 2003 (CPMIP Act) s 38 – declaratory judgment on procedures relating to court-ordered mental health assessment reports  – time frames for the provision of s 38 reports – obligations on Te Whatu Ora – Health New Zealand – Waikato (HNZ Waikato) when receiving s 38 order addressed to an unnamed ‘health assessor’ – detention of defendant at inpatient facility (s 38(2)(c)) – consultation – role of court liaison forensic nurses – report requirements for a determination of fitness to stand trial  – responsibility for funding of s 38 reports

Maaka-Wanahi v Attorney-General    [2023] NZHC 187 (McQueen J)

Section 38 of the CPMIP Act empowers the court to order a report from a ‘health assessor’ in relation to a defendant’s mental health.  The demand for s 38 reports has increased whilst the capacity of forensic mental health services to provide them has decreased.

An acute problem has arisen in the Midland regions, where HNZ Waikato had advised the courts that reports may take longer than the timeframes directed. It was not able to provide reports in relation to all the s 38 orders it receives and it had no capacity to provide a report unless a forensic nurse had recommended one.

Kingi Du Val Maaka-Wanahi was a defendant before the Hawera District Court. He was screened by a forensic nurse who did not recommend a s 38 report.  The court later provided HNZ Waikato with a s 38 order addressed to an unnamed ‘health assessor’.  HNZ Waikato advised the court it had no capacity to prepare the report and noted that the forensic nurse did not recommend one. Counsel then commissioned a s 38 report from a private neuropsychologist which was provided more than five months after the original s 38 order.

Both Maaka-Wanahi and HNZ Waikato brought declaratory judgment proceedings to clarify the legal obligations under s 38. The NZLS, NZBA, and CBANZ appeared as intervenors.

Statutory interpretation – whether the time limits in s 38(2)(b) & (c) (14 days) and s 40 (30 days with consent) relate to detention for the purpose of assessment or the completion of s 38 reports – rights-consistent approach – s 38 not drafted clearly or simply – whether court orders issued to unnamed ‘health assessors’ are binding – definition of ‘health assessor’ – comparison to other statutory frameworks for provision of court reports – whether HNZ Waikato must comply with a s 38(2)(c) order for detention of a person in inpatient facility without prior consultation – whether orders which do not comply with s 38(2)(c)(ii) are void ab initio or voidable – role of forensic nurse under s 38 – whether one health assessor’s report will suffice for the court to find a person fit to stand trial – whether the Crown is responsible for funding both public and private s 38 reports.

Held : Court makes declarations (in summary): (1) s 38 does not impose a specific time frame within which reports must be provided.  The time frames in s 38(2)(b) & (c) and s 40 refer to periods of detention for the purpose of assessment and not the period within which a s 38 report must be completed. However, reports must be provided without undue delay or there may be a breach of a defendant’s rights under NZBORA; (2) HNZ Waikato is not a ‘health assessor’ and is not legally obliged to provide a report, or locate and commission a report, in response to a s 38 order addressed to an unnamed ‘health assessor’; (3) HNZ Waikato is legally obliged to comply with a s 38(2)(c) order for detention of a person in the inpatient facility, provided requirements in the section are satisfied.  A failure to comply with the s 38(2)(c)(ii) requirement does not make an order void  ab initio , but constitutes a reviewable error upon which a court may conclude that such an order is void; (4) A judge may consider the opinion of a forensic nurse following a screening assessment in deciding whether to make a s 38 order. However, the CPMIP Act does not require such a screening assessment or a recommendation from a forensic nurse for the Court to make a s 38 order.

No declarations were made on the report requirements for fitness to stand trial (court rejected HNZ Waikato’s argument that only one report was required) or on the state funding of public and private s 38 reports (current position is that both are state funded, which the court considered appropriate, but issues of funding are matters for the executive).

Note :  The judgment emphasised the need for urgent attention to the underlying issues from the executive as a priority, observing that unsatisfactory outcomes as a result of delay may be unfortunately common, which is troubling for the efficiency and efficacy of the criminal justice system and bears upon fundamental human rights.

LawNews – Issue 9 | 2024

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The Sikorsky Twin Engined Amphibian, Type S-38, Model 1928

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The S-38, model 28 is a nine passenger Sesquiplane powered by two Pratt and Whitney Wasp 410 HP engines and is intended for routes where the ability to take off and land from both land and water is essential. A description of the weight, construction, power plant, fuel system, landing gear, hull and floats, dimensions, flight characteristics, blueprints, and photographs are provided.

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[17] p. : ill.

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Finding the Sikorsky S-38: The Search for H.F. Johnson, Jr.’s Carnaúba Plane Discovers Something More

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Sam Johnson Wanted to Find a Lost Family Treasure

The Sikorsky S-38 plane H.F. Johnson, Jr.  used for his 1935 carnaúba expedition  had been missing for decades. After the journey, it was sold to Shell Oil Company, which used it for aerial survey work in New Guinea, Borneo and Indonesia. Research said that in the late 1930s, the plane sank during a takeoff attempt in Manokwari Bay, Indonesia.    But Sam hoped it might not be lost forever. In 1997, he and his family traveled to Manokwari Bay to mount a search. They used side-scan sonar to identify potential objects deep in the bay, then dove to explore each one. But search as they might, they didn’t find anything that proved to be a sunken Sikorsky S-38.    Still, it was a wonderful family adventure. As Sam shared with employees at the time, “We uncovered the history of the plane and details about its final flight. We explored a beautiful country and met charming people. Once and for all, we satisfied our curiosity about this chapter of our history.”   Sam would go on to recreate his father’s journey , in a replica Sikorsky S-38, lovingly designed to match every detail of his father’s plane. It was a remarkable experience that brought him closer to his father than ever before. But the location of H.F.’s plane would remain a mystery.

A New Lead on H.F. Johnson, Jr.'s Missing Plane 

Then in 2005, a year after Sam passed away, a photographer contacted SC Johnson to say that he thought he had seen the plane on a recent dive. He didn’t know the exact location, but he recalled it was in about 100 feet of water.   With that important new piece of information, Chairman and CEO Fisk Johnson  and his family had a promising new lead. Fisk, his mom and other family members headed back to Manokwari Bay to try to finish what Sam had started almost 10 years earlier.    This time, they came upon the plane almost immediately after they began searching, its unique and recognizable shape emerging majestically out of the sand and coral.

Carnaúba Found: The missing Airplane is Discovered

While they didn’t find the data plate Sam had sought, there was no question the Johnsons had found H.F.’s plane. They placed a granite plaque in front of the sunken treasure that reads: “I am Carnaúba. My true home is not this bay but the hearts of all who love adventure.” It was a beautiful tribute to Sam, and to H.F. as well – the past and the present meeting with the promise of more adventures to come. As Fisk wrote to employees soon after the successful expedition, "This summer, we found that plane that was so important to my dad. But we discovered much more than just the wreckage of a lost aircraft. After all these years, that plane and the adventure it symbolizes once again brought my family even closer together. "The call to adventure is a big part of the legacy shared by all of us at SC Johnson. And there are still so many adventures ahead of us if we have the will and the ingenuity to pursue them."

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