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Court of Appeal says no statutory time limits for s 38 mental health reports

13 Jul 2023

| Author: Anna Longdill

Criminal Procedure (Mentally Impaired Persons) Act 2003, ss 38 and 40 – procedures relating to court-ordered mental health assessment reports – time frames for the provision of s 38 reports – s 38 not drafted simply or clearly – New Zealand Bill of Rights Act 1990, ss 6, 18(1), 19(1), 22, 23(5) & 25(a), (b) and (e) – rights consistent interpretation

Maaka-Wanahi v Attorney-General [2023] NZCA 217.


Section 38 of the Criminal Procedure (Mentally Impaired Persons) Act 2003 (CPMIP) 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 but there is a shortage of psychiatrists and psychologists available to prepare them. The result has been growing delays in providing s 38 reports and an increasing focus on who is responsible and how the reports are funded.

Declaratory judgment proceedings were brought in the High Court by Te Whatu Ora Health New Zealand Waikato (HNZ Waikato) and by Kingi DuVal Maaka-Wanahi, a defendant in criminal proceedings in which a s 38 report had been ordered (and where HNZ Waikato had advised the court it had no capacity to prepare it). Those proceedings sought to clarify the obligations of HNZ Waikato and the timeframes in which s 38 reports must be completed.

The High Court made declarations that HNZ Waikato is not legally obliged to provide a s 38 report when it receives a s 38 order addressed to an unnamed health assessor. Nor is HNZ Waikato obliged to locate and commission a health assessor to complete a s 38 report. These findings were not appealed.

The High Court dismissed Maaka-Wanahi’s argument that s 38 required reports to be completed within 14 days (or up to 30 days if an extension is granted under s 40). The court held the time limits in ss 38(2) and 40 related to the period for which a person may be detained for the purpose of assessment only. Maaka-Wanahi appealed that finding, arguing the High Court erred in declining to adopt a bright-line time limit for completing s 38 reports.


Applicable principles: CPMIP Act, ss 38 and 40 – New Zealand Bill of Rights Act (NZBORA), ss 6, 18(1), 19(1), 22, 23(5), and 25(a), (b) & (e) – right to a fair trial and to be tried without undue delay – text, context and purpose of s 38 – not drafted simply or clearly – legislative history – would bright-line time limits better protect defendants’ rights? – would imposing deadlines improve availability and timeliness of s 38 reports? – risk that bright-line time frame would reduce quality of s 38 reports, which would be inconsistent with NZBORA rights – must the most rights-affirming interpretation of a provision be adopted?


Held: Timeframes in s 38(2) relate to period of detention for purpose of carrying out an assessment, not to period within which s 38 report must be completed and provided to the court. This interpretation is consistent with the statutory context and purpose. There is no reason to think the alternative interpretation contended for by Maaka-Wanahi would better advance the rights affirmed by NZBORA.

Maaka-Wanahi v Attorney-General [2023] NZCA 217

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