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Teika v District Court: a response to Warren Brookbanks

14 Jun 2024

| Author: Melissa Russell

In last week’s LawNews, an article by Warren Brookbanks, Unlawful detention and fitness to plead: the scope of habeas corpus, commented on the High Court’s decision in Teika and the successful habeas corpus application filed on behalf of a defendant who had been detained in prison following a finding that he was unfit, pursuant to s 38 of the Criminal Procedure (Mentally Impaired Persons) Act 2003 (CPMP) Act.

With respect, Brookbanks’ suggestion of a statutory amendment to “resolve” the problem caused by the High Court’s decision in Teika completely misses the point.

A finding of “unfitness” means an accused is not criminally responsible. If an accused is not a criminal, he or she should not be held in an institution for criminals. The Teika decision is not an aberration, but an overdue call to stop treating vulnerable citizens as criminals when they are not.
As a youth advocate, I appeared in the Manukau District Court last week where Teika was applied in respect of a young man who had previously been found unfit to stand trial. He was detained in a youth justice facility under s 238(1)(d) of the Oranga Tamariki Act 1989. This young man has been in Oranga Tamariki custody almost all his life and has been through more than 50 placements. In December last year, he had his first placement that focused on his health needs, which was then lost a few months later due to contractual issues.

That sent him back to a youth justice residence. His health needs are complex and include a significant hearing impairment, FASD, attachment disorder and a mental working age of about five or six years.

The Youth Court faced the same situation as the District Court in Teika, with one significant difference. There is only one secure facility in New Zealand for young people with intellectual disabilities who have committed criminal offences – the Hikitia Te Wairua Unit in Porirua. It has six beds. Last week, all of them were full.

Judge Parsons applied Teika. The ministry responsible for the young person’s care – Oranga Tamariki – did not have suitable bail options to offer. That left the court to remand this young man into a health facility pursuant to s 23(2)(b) CPMIP Act, although it knew the only facility was full. It troubled the court greatly, but the order was made.

That caused much anxiety within the Ministry of Health and, in all likelihood, some robust debate between the ministry and Oranga Tamariki about the boundaries between their care responsibilities.
The Ministry of Health was in a very difficult position. The exclusivity of Hikitia Te Wairua means its residents will be the most serious of cases – those with little or no compulsion control. The facility is unlikely to suit young people with neuro-disabilities like FASD who, by comparison, can probably be supported in the community.

There is now also the potential for further habeas applications to be filed. This, along with other defendants who may soon be soon be found unfit, risks the Ministry of Health being quickly overwhelmed.
Brookbanks’ suggestion of a quick-fire return to the upended status quo must appear very attractive to the ministry, particularly with the government’s pressures on ministries to reduce spending. However, as the law stands now, an advocate has to seriously consider whether engagement in the CPMIP process is worthwhile. Is it in the young person’s interests to suffer the additional complexity and length of proceeding when there are so few secure placement options and when all the available options are in Porirua? That’s fine if you are from the Wellington region but placing young people a significant distance from their family is likely to cause further trauma.

More importantly, Brookbanks’ quick fix may ease the ministry’s immediate concerns but it is disguising, not dealing with, the real issue. We should never have been treating people as criminals when they are not criminally liable, and especially not our youth.
The majority who come before the Youth Court are from backgrounds of neglect, trauma, violence and disadvantage. They often have neurodevelopmental disorders, varying degrees of physical and intellectual disabilities and serious mental illness. Chronological 15- or 16-year-olds commonly have disabilities that mean they need to be treated as if they were half that age. They have been left in correctional-type facilities even after being found unfit to plead. We know that our youth justice residences do not meet their health needs.

Amending the law as suggested continues a policy that is obviously wrong. How can we consider ourselves a free, modern and compassionate society if we choose a quick fix to avoid treating young people’s intellectual disabilities and serious mental illnesses as health issues?
The Teika decision is an opportunity to improve outcomes for children. Yes, it will take resources. More secure facilities will be needed, more healthsupported bail options from Oranga Tamariki and more community mental health activity to keep children out of the youth justice system in the first place.

Melissa Russell is a barrister based in Whangarei.

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