Rights for Victims of Insane Offenders Bill

Members, the House is in Committee on the Rights for Victims of Insane Offenders Bill. The House was considering Part 1, and the question was—

💬 Ginny Andersen: Madam Chair.

CHAIRPERSON (Hon Jacqui Dean): Ginny Andersen.

Thank you very much, Madam Chair. In terms of outlining the main, core reasons why we are supporting the bill, which is important to outline in this debate, it reflects the same values that Labour has in those areas of victims’ rights. It promotes justice, it promotes transparency, and it also respects survivors of crime and also their communities. I think it’s important to note that this legislation cannot undo or even mitigate the things people have experienced and those victims of crime have experienced. However, we do hope that we can alleviate some of the most difficult elements dealing with this complex and challenging area of our legal system for people in the future, and to note that the aim of this bill is to better align the treatment of victims of offenders found legally insane with victims of regular offenders in the justice system, which has been a difficult but worthwhile task that’s been done.

This Government supports legislation that respects the rights and the needs of victims of crime and also, at that same time, keeps the public safe. This bill is consistent with our work to improve victims’ experience of the justice system. It is also of utmost importance that survivors of crime are not revictimised through the justice process, while the offenders’ rights and obligations are also met.

I think it’s important to outline some of the key changes in the bill that’ve been undertaken by its two trips to the select committee and to underline some of the work that’s been taken in Parts 1, 2, and 3 of the bill. In terms of Part 1 of the bill, the amendments to criminal procedures, that in particular looks at those around mental health and trying to create that alignment between the criminal justice system and also those needs of people who have mental health concerns. Under Part 1, some of those issues relate to the “Report by the Director of Mental Health on the defendant’s continued detention” and also “When victims must be notified of impending decisions under section 31 or 33”, and that’s covered off under clause 7A in Part 1 of the legislation.

While we’ve also discussed, already covered, that using the new verdict will assist in doing this, there’s also consequences following finding of a new verdict, and one of the Chief Justice’s concerns was that the bill would be unclear about what the consequences of a finding of the proposed verdict would actually be. So the committee therefore unanimously recommended adding a new section, which is 20(1)(c), to provide that a judge must acquit a defendant on account of their insanity if this finding was made. This would be consistent with the consequences following the Act’s current verdict of “not guilty on account of insanity” and would also reflect the language currently used in describing the consequences of the verdict.

The committee also recommended providing proposed new section 20(1)(b), that in finding that an act was “proven but not criminally responsible on account of insanity”, a judge is required also to explain that meaning of the finding to the defendant, which is an important change in making our court processes more transparent, more understandable, not only to those who are before the court but those who are supporting a victim through the process. This change is designed to help ensure that the defendant and others in the courtroom understand the verdict.

Also, there’s been some really good improvements in terms of what the bill aims to do. The bill, as already stated, aims to ensure the equivalent treatment of victims of a legally insane offender with other victims of crime. It also seeks to develop a more victim-centred approach when the court is considering cases involving defendants found unfit to stand trial or acquitted on account of insanity. So the key ways under Part 1 that that is done is through renaming the verdict of “not guilty on account of insanity” to “act proven but not criminally responsible on account of insanity”. [Time expired]

Thank you, Madam Chair. I seek leave for all provisions to be taken as one question.

Leave is sought for that purpose. Is there any objection? There is.

Thank you, Madam Chair. So I want to just refer to the only Supplementary Order Paper (SOP) that is now on the table related to this bill. For those who are just watching this debate now, in the prior committee of the whole House there were SOPs—No. 40, which has been withdrawn and that is now replaced by No. 98—and I just wanted to explain a couple of those changes. They are very much cross-referencing changes that are picked up as part of the drafting process. So they’re very technical changes, and also in one, with the change to clause 8B, new section 50, it is to ensure consistency with the wording of the Mental Health Act. So I just wanted to put on record to clarify for the House that SOP 42 no longer exists, it’s been replaced with 98. What was SOP 52 in the prior committee stage had been incorporated when the bill went back to the select committee, as outlined by the chair Ginny Andersen.

It’s a real joy to stand up and dig in with the Hon Louise Upston, into this bill because this is an awesome little bill. As I understand it, with my very minor experience in this Chamber, it’s had a very unusual process, as my colleague Ginny Andersen, the chair of the committee, and the Hon Louise Upston have both begun to describe. I’m sure that that we will have more of this because it’s been a fascinating thing.

But I do want to just take this moment because there is real weight and significance to this matter. There is tremendous detail to go through, and it is important that we explain it in that detail that only a committee stage gives us the opportunity to do. But I do want to start by talking about the philosophic significance of this—and the Hon Louise Upston, I want to dig in a little bit to that with you tonight.

I come from a background in law and, particularly, in the rights of victims and the place of victims in the adversarial court. When I began that work, to my shame, it’s—well, to my shame, not to my shame at all. What an awful ageist thing to do. Over 25 years ago, when I started work looking at the plight of victims in our justice system, what was really the case when I dug into that, victims do not have a place in the traditional criminal adversarial system—they simply do not. They are tools of the lawyers and the judges to be used for the evidence that can be got from them and then set aside. That is the fundamental problem with the position of victims in an adversarial system, which is essentially that dialectic discussion between the prosecution and the defence. In that system a victim really has no place except as cannon fodder.

It is very different, if you look across the ditch, from the originator of the adversarial system in England. If you look across to France and you see the inquisitorial system, and you look there, and what you see is a system that is dominated by the State whose interest is in setting right the situation, the imbalance, that has arisen by the commission or the allegation of a crime. For that system the victim actually does have an integral place in the system and a part to play and a role and a right to stand, as we say in this Chamber, and as they say in courthouses across the land. There a victim has a lawyer. A victim has a right to make submissions. A victim has a right to a say in a sentence in a very, very different way to the small and cautious way in which we allow our victims into court to have a say on the disposition of the case. So it seems to me, from the outset, when I got to grips with this bill, that it is actually putting a pou in the sand and advancing one more step along something that I know is very dear to this Government’s heart, which is to integrate victims into the criminal justice system to give them the respect and the voice that they have so lacked for so very, very long.

When I began all those years ago—in fact, I think it’s closer to 30 than 25 when I try to do my addition, but my brain may be trying to ignore the fact. When I began as a 21-year-old it was common to hear victims talk about their sense of total disempowerment, their sense of a total lack of voice, and the fact that the trial was a re-victimisation. These things were common parlance, and I was really saddened when I heard those same experiences. And the Hon Louise Upston, you will know this better than I do.

💬 Maureen Pugh: What’s the question—what’s the question?

I’m getting there, but it’s really important to set the scene, Ms Pugh.

💬 Maureen Pugh: Very waffly.

Thirty years of academia, give me a chance. I’ve got a long history here. [Bell rung] Thank you. Thirty years of academia cannot be put to bed in five minutes. I say that to the Opposition. It may put the rest of you to bed, but not me. So my point is, and to quote the great Ellen, “I do have one.” When we heard the experiences of those victims, back in the beginning of this process, the same pain that we hear from victims in a rape trial or in a sex trial was coming from them. That intense feeling of disenfranchisement and disempowerment in what was their experience. That intense feeling that they had walked into an arena where it should be, essentially, about their experience and their reality, and it was not. It was about them as tools of a system that was not focused on them at all. Therefore, it really struck me, the title you gave your bill, Ms Upston. Because rights for victims is almost a contradiction in terms in the adversarial system, as it has been traditionally conceived. Yet it is a real mark in the ground as to where you were going with that, and it is something where we see—you know, later this week, I hope we will be considering the Sexual Violence Legislation Bill. I see this bill as of a piece with the work that we will be doing on the Sexual Violence Legislation Bill. It is again about the place of and the respect given to victims or complainants in the process. It is about moving aside those two bullies, those two domineering people, the prosecutor and the defence, moving them aside and admitting into the frame that third person, the victim or complainant.

When I just go back to the inquisitorial system in France, it is sometimes thought that any mention of an inquisitorial system or the inquisitorial system might have advantages over ours is some intrinsic attack upon the rights of the defendant. When one sees the words “rights of victims” that is often seen by criminal defence or traditional criminal lawyers as an implicit attack on the rights of the defendant. But I think what you’re demonstrating here, Ms Upston, and what the work that we have here, that we did so painstakingly and with such passion and nerdy determination, particularly, if I may say so, from some of these slightly newer members of the Justice Committee. That level of nerdy attention was justified because we are doing something significant here.

But when I say that the inquisitorial system is often seen as a threat to the adversarial system, that the idea of inserting victims as players into the system with rights of standing of their own is seen as a threat, I really think that that seriously underestimates the capacity and the elasticity of the adversarial system because—and here comes the serious nerdism—it has been said over the last 20 years in research on the inquisitorial versus the adversarial system that, actually, they’re not opposed. They exist on a continuum. So you often see elements of the inquisitorial system creeping into the adversarial system, but also elements of the adversarial system creep the other way too. I think it’s really important to put that frame around it. When we talk about rights for victims, which 10 years ago would have been seen as a slap in the face, an existential threat to our criminal justice system—and I am not putting that too highly because I know criminal defence lawyers—when you come from that perspective, I think it is really important to put that debate into context, and say “This is not only a big step forward for our system but it is not a threat to our system.” Our system is endlessly elastic provided we stick to those fundamentals of the protection of the defendant’s human rights and dignity and the accurate fact finding. Once we know that we are holding those two intrinsic quests that make up a trial, once we know we have given those due respect, I think the trial is virtually, infinitely malleable, whether it is in terms of the procedures you use, whether you use pre-recording or whatever, or whether you allow a victim to have a place in the trial and to state their truth and to give their voice and to have rights.

So, Ms Upston, I’m inviting you, one very deep nerd to another, to stand and address us on why you named this bill the way you did, because I think it is important, and I think you should say it.

Thank you, Madam Chair. I will take up that member’s—Emily Henderson’s—invitation. My intention, and I’ve spoken about it in the earlier readings of this bill, but it was the genesis of how this came about, actually, and it’s very much a people bill. It was based on a constituent coming into my electorate office in 2010 and raising an issue, raising his experience of the way he found the justice system as a victim when his brother had been killed by someone who was found to be insane at the time, and the clear difference between how he was treated, because the offender became a special patient in the health system as opposed to a criminal in the justice system. Therefore, the experience for him as a victim was so vastly different.

I think some of the frustration of Graeme Moyle and his family was that at that time there was a move to strengthen victims’ rights in a number of areas. So as the previous National Government and now the Labour Government have continued the mantle to improve the victims’ experience of the justice system, and as Ginny Andersen spoke about, have victims at the heart of the justice system, the expectation grew and the gap became wider in terms of his experience of what happened for him, and the very fact that when you have an offender that is found to be insane, it’s a very different pathway and a very unequal pathway. That’s very much what we heard from other submitters.

So in terms of Part 1—I know we are wandering a little bit, Madam Chair, if you can indulge me for a moment—the rights for victims of insane offenders was very deliberately chosen based on a very real human experience which I felt, as a member of Parliament, was wrong. I’m immensely grateful for this House for the time and effort that has gone in during a select committee process where we honour those victims and give them greater rights.

Thank you, Madam Chair, for the opportunity to take a call in relation to this very important bill. I would like to thank the member, Louise Upston, as a number of my colleagues have done, on her really important work in this area. But also, as a newer—maybe not so new—member of the Justice Committee, I really was extremely impressed with the collegiality across the committee on what was actually quite a difficult and complex area of the law and one that I think we spent the appropriate amount of time on, because these weren’t easy decisions at all. They require a balancing of rights, both of the experience of the victims, but also the criminal justice process itself and the rights of the accused, which strays into the mental health space.

My colleague mentioned that she had worked in the criminal justice space; for me, a lot of my work has been on the defence side. And I do think when you’ve been doing that for a number of years, sometimes it can be difficult to consider the space of victims’ rights. It was about two months ago when I met the Chief Victims Advisor at a men’s rights activist meeting, and it was really that discussion and then reading her report from 2019, which called for several changes to be made in the space of victims’ rights, that I really saw the process we were going through a select committee quite differently. It is something else to sit in that room and listen to the stories we did. So I’d also thank the member not just for the important changes but for giving those families a space to be heard. I think one of the things I learnt early on is that it’s not always just the families; it’s people who witnessed some of these atrocious acts, including colleagues in employment settings, including members of the public as well.

This is a complex area of the law and one of the changes that we looked at—actually several times; there were three iterations—was the verdict itself. So I just want to spend a bit of time and then perhaps ask a question on that. So as some have traversed, after the bill received its original second reading on 12 May, the Chief Justice wrote to the Attorney-General on behalf of the bench stating that they had concerns and then it was referred back to select committee. So the three iterations that we had—the first one included a reference to “acts and omissions” and also included a reference to the “defendant”. The second, when it came back to the House, initially included the words “proven but insane” and where we are now as we’ve revisited the definition is a unanimous position on the way forward, which I do think is extraordinary, but also does justice to the balance that we need to strike in this place. And that is the wording that the “act [is] proven but not criminally responsible on account of insanity”.

So what I felt we did in many ways is we actually revisited where the member was initially with that section. To me, it gives that same sense of highlighting the act while making it clear that both elements of the offence hadn’t been met. I mean, I would like to just have that assurance—the words from the member in terms of her sense of whether that did bring us back to where she initially saw that piece of the bill, because I do think that that is the most significant change to the bill.

The second question I would ask is there were a number of submitters who questioned whether if we changed the verdict that would also bring a lack of clarity to those in the courtroom. So we’re not just talking about the victims and the families and others who might have witnessed the act in this case but we’re also really talking about potential jurors and, of course, the accused themselves. So if the member would, I would very much love to hear her thoughts on whether we have landed—not exactly, but, in fact, very close to the intention of where the original verdict clause was.

I move, That the question be now put.

Thank you, Madam Chair, and congratulations to the member Louise Upston for getting the bill this far. There’s a couple of questions I really invite you to talk to—and I saw her about to get to her feet before—and I guess the first is this, and it’s about the kind of importance of the concept of mens rea as an ingredient of guilt. The phraseology chosen of “not criminally responsible” is clearly dispensing with the idea of “not guilty”, and it seems to be right there in the nub of this bill that we are putting insane people into a kind of different category. The law’s long recognised that the actus reus and the mens rea are critical ingredients of guilt, and that if you don’t have either of those components—the intention that’s necessary and the critical thinking skills necessary to form that intention—then you are not guilty. I’m really asking whether that undermines the concept of mens rea as an ingredient of guilt itself, of the responsibility from which flows criminal conviction and the sentencing that follows.

I guess the other thing I’d just point out, and it may be for a later part: the bill’s called the Rights for Victims of Insane Offenders Bill; this is not about offenders at all. It’s about insane accuseds. They never become offenders. They didn’t commit the offence. They are not criminally responsible. Once again, we’ve got a person here who is seriously mentally unwell if they don’t have the ability to form the intention to commit a crime, and yet the bill tags them as offenders when they are not offenders.

Now, I understand the Justice Committee recommended that in reaching a verdict, as set out in this bill, the judge is to explain what “not criminally responsible by reason of insanity” means and how that interplays. I’d be interested in the thoughts of the member. I think it’s really important because, I’m sure, the courts will look at these debates to understand what that might entail. What would, in particular, the victim want to know about the verdict? What kind of equipment do we want to give the judiciary in terms of the intention of this House when they come to say to a victim, “This person isn’t going to jail, isn’t going to be punished, and the reason is they don’t have the mental capacity to have committed this crime. They are not guilty. They are not offenders. They are not criminally responsible. But that does not diminish the fact that you have suffered sometimes some very grievous, you know, acts at the hands of these people.” But I do think, in striking this balance—and I know the member’s tried desperately hard to strike the right balance—we’ve got to be cautious that whilst we can say a verdict which is, you know, “not criminally responsible”, we steer away from then saying, “The person who is the accused is an offender.”, because the verdict itself declares that they’re not.

So I’d be interested in your views on mens rea, and also in your views as to whether it’s appropriate to identify the accused person as an offender and as to what we might be asking of the courts in explaining the verdict to the court and, in particular, to the victim. Kia ora.

Thank you, Madam Chair. So, just continuing from where I was, in terms of the focus on court processes, I would very much like to hear from the member about the balancing of rights within the courtroom but also clarity and how the new addition of the new section 20, I believe it is, makes that clear for all parties in the courtroom.

There was another question, I think, for me, that came up as we were hearing submissions, and I’ll refer back again to the Chief Victims Advisor report that she wrote back in 2019, where she made some quite broad comments about the rights of victims and that they stemmed from the UN Declaration of Basic Principles of Justice for Victims of Crime and Abuse of Power. She actually went and interviewed a number of victims and included some really alarming quotes from some of them about their experiences. One thing I was quite interested in was how she defined victims. This is an issue that came up in select committee because of the nature of the submissions that we heard from many families. And I know that the Hon Dr Nick Smith was very interested in this particular aspect of the bill as well, because it’s a question of scope.

So we heard from some individuals that, where an individual is declared unfit to stand trial in the first place, the individuals who had suffered harm from an act that they had committed would go without justice—whereas, if this bill were to come into force without extending to that group of people individuals who had suffered harm for someone who was declared to have committed the acts but didn’t have the actus reus, they would have some space within the courtroom; they would be able to read a victim impact statement. I don’t recall whether it was Dr Smith or not, but one of the issues that came up was whether, if you had an individual who was declared unfit to stand trial at the time that they had been charged but subsequently, after receiving an appropriate amount of treatment through mental health services, were deemed to be sufficiently capable—how would they fit into this sort of regime, and are our laws sufficient to ensure that that person is then tried and those individuals do also have the same ability to provide statements in court?

So I’d be curious also, in addition to my earlier question about court processes and clarity, just to hear from the member about whether the intended scope that she started out with when she introduced this bill—whether she considered expanding it at any stage when hearing from those individuals. I thought that was quite a novel argument that was made at select committee. And, if not, why not, and does she see this as a gap in the law or that it’s adequately dealt with by current legal processes?

I call Emily Henderson.

Thank you very much, Madam Chair—

💬 Ginny Andersen: My question for the member—

CHAIRPERSON (Hon Jacqui Dean): Apologies.

💬 Ginny Andersen: Oh, I thought you said—Henderson and Andersen almost sound the same.

Emily Henderson.

I won!

I want to really respond to and perhaps riff on what my colleague Professor Duncan Webb was talking about before, because I think, again, this is something that—he’s right, lawyers and judges are going to go back and they’re going to look at these things and they’re going to wonder what the heck we were on about. So I think it is important that we talk about this. When we look at Part 1 and we look at clause 3A, which is amending the interpretation section—that’s the first point at which, as you’ll remember, Ms Upston, that we introduced our new verdict, which, as all of the previous speakers have alluded to, caused us quite a bit of angst. It caused quite a few people quite a bit of angst because, again, this is something that really goes to the heart of what you were trying to do, I think, but also what the criminal justice system—long-held tenets of the criminal justice system. And, in particular, as my colleague, Mr Webb—Professor Webb, as I’m now going to call him for the rest of the evening—

💬 Dr Duncan Webb: Don’t do that.

Don’t do that—was saying, it goes to that mens rea / actus reus aspect. I really would like you to spend some time talking to us about your thoughts about how we got to that definition because, as my colleague Vanushi Walters said, it’s actually very close to your original. In the end, after all that, we circled back after all that discussion. But for me, “act proven”—and “proven” was the word that became a real hiccup because proven suggests that the crime was committed, and for a crime to be committed, of course, you’ve got to have both those things: the actus reus, the act, and you’ve got to have the mental intention. A person who is insane cannot form that mental intention and traditionally, by that very nature, that is it, they are not an offender. They can be accused, but they cannot be convicted of the offence in the traditional way.

But this was of immense emotional importance, as I recall. This was—I remember Ms Upston saying, I remember the submitters saying that once you hear “not guilty”, you don’t hear anything else. You don’t take in insanity, you don’t take in the explanations. So our challenge was to craft a verdict which made it both clear to the justice system that we did not consider this person could be convicted of a crime, but also to the victim that we recognise that something was done to them and it was this person who did it. So we had to balance that. We had to balance the validation of that experience—“Yes, this person did this thing to you.”—with the criminal law’s inability to, I guess, bring that reality home to the person because they don’t fit the definition, they don’t fit our system. So what we did was to say the act is proven, the actus reus has occurred, but the person is not criminally responsible on account of insanity. Meaning, as we saw it, I think, insanity has rendered them—the mens rea element has gone so they are not criminally responsible, but they still did it, they just don’t have the mens rea. Therefore, that is where we came to.

Now, later on, when we get to that part, I would really like to get you to dig into the fact that we did then go and change the definition of “offender” and “offence” to include for the purposes of the Victims Rights Act, in order to do that other very important thing, which was to synchronise the rights of the victim of an ordinary offender and the victim of someone who is insane. In order to be able to synchronise their notice provisions and all of that, we had to change the definition of what an offender is for the purposes of the Victims’ Rights Act. So that’s, I think, where the title comes from also.

So I wonder if you would be prepared to just talk about that interplay of factors: the need for notice and the need to have that trickle down in the practical sphere.

Thank you very much, Madam Chair. My question to the member is in relation to Part 1, clause 7A, and there’s several new sections in there that are really in and around the notification to the victim. This is a part of the bill that hasn’t been discussed so much. We focused a lot on that definition and getting that balance between the needs of victims and the needs of the criminal justice system, but what we haven’t discussed—and my question to the member of the likely impacts of these changes—is in and around the Justice Committee examining section 50 of the Mental Health (Compulsory Assessment and Treatment) Act, which provides that the Minister of Health may grant leave of absence with a special patient from a hospital into the community, quite often subject to conditions specified in the section.

So we decided that the bill should require that victims of persons found insane be notified when the special patient is being considered for leave of absence. And I know there were specific examples provided by the member herself and also by submitters to the committee in and around some really negative circumstances where there had been victims of crime who then, without purpose or planning, had bumped into the alleged or the offender in particular instances, and the perverse circumstances and the negative impacts upon the victim that that might have. So we decided the bill should require that victims of persons found insane be notified when a special patient is being considered for leave of absence. This is really important. So this would, in the committee’s view, prepare the victim for the possibility of the patient getting greater autonomy or being released into the community. So the need was highlighted, as I said, through several submitters who raised this and who noted that victims felt like they were not even considered to be relevant to this process as it stood, and could even be surprised to find out retroactively that the offender had been, in fact, granted leave, and even granted leave in close proximity to the residence of the victim and their family.

So the fact is that the victim is now provided, through this course of legislation, with the right to submit their view to the Minister when the offender is being considered for a leave of absence. So alongside this amendment in this section, there is also the view that the victim has the right to make a submission when the offender is being considered for leave of absence. And I think this is a really important change that the committee has taken through. So I’m interested to hear the member’s views in terms of the impacts upon this for victims’ rights. When the committee looked into this area—

CHAIRPERSON (Hon Jacqui Dean): Order! Order! Can I just ask the member to come back to Part 1.

Sure, sure. Part 1 is rights for victims under clause 7A, new section 33C: the “Right of victims to make submissions on proposed change of status”, and that’s on page 1 of the bill in Part 1. So that is covered in Part 1.

So in doing so, the intent is to give victims a voice where they are currently being silenced, and to give them the opportunity to bring to the attention of those making the decision any considerations that might help them apply, where practical, leave conditions that minimise the chances of a person found insane and the victim coming into contact, which could have some quite awful experiences for that victim to be then re-victimised.

So it’s important to note that the intent of this change is not to impose on the clinical decision making in this process, but it is really to provide greater transparency in the system and also for those people who have been impacted upon the crime to be kept abreast of what changes are happening. It goes back to that key point made right at the beginning of this debate: that trying to get a good coincidence—the talking points between the criminal justice system and the mental health system to make sure that where there is an overlap there, that there’s an ability for those two systems to interact in a way that takes into account the needs of the offender, who may have ongoing mental health treatment needs within the health system, but also the rights of the victim, who needs to be protected through the criminal justice process.

So I’m really interested to hear from the member in charge of the bill how some of those more fundamental changes in terms of victim notification and also giving the victim the right to submit their view to the Minister will impact in the wider ambit of improving the rights of victims through the criminal justice process.

Thank you, Madam Chair. A number of the contributions from the Labour members that were on the select committee, I think, have answered their own questions, because we did come to agreement around these very difficult balances. So the thing I want to put back on the record is the clear policy intent in the drafting of this bill in my name. That is very simply that in these cases the hearing of the finding “not guilty” is just so appalling for the victims.

I want to explain why, because it’s very connected to why the use of the word “proven” in the finding was so critical. Yes, I accept the select committee tussled with it for quite some time, both the first time and the second time, and the “proven” is really important. I’m not going to traverse the details of the cases, because I know that the victims, some of them, shared their stories for the very first time. So I want to honour them by not going into the detail of what occurred. But the reality is there is zero doubt about who committed the act. Yes, they were found not criminally responsible because they were found to be insane at the time that the act or offence occurred. But the very simple reality is that no one else is being looked for. And in the most harsh examples—and I refer to my constituent, the death of his brother, there was only one person who committed the act that took his brother’s life. That’s why, in terms of the finding, the removal of “not guilty” was critical from a policy perspective to deliver the intent of the bill, as was the word “proven”.

The other thing that I want to put on record, and it has been referred to by many of my colleagues who worked so diligently with me to get this bill right, was the need to balance the person who had been found to be insane and their needs, as well as the victims’ needs. One of the interesting comments that came through this process was how confusing it is both for the victim and for the person that’s been found to be insane to have heard “not guilty”, because the finding was “not guilty” but then that person was taken into the custody of the Ministry of Health as a special patient. For some of those special patients, hearing the words “not guilty” added to their confusion in terms of why their liberties, as they knew it, were being constrained. I think that we managed that balance of the really important needs of the person with a severe level of mental illness to be found to be insane—I think we very carefully balanced their needs and their rights as well as the rights of the victims.

Coming to the question about the victims’ notification of impending leave. There was another item of business that was before the Justice Committee, and that was a petition in the name of Wendy Strawbridge. That petition was dealt with in parallel to my member’s bill. And again, I want to acknowledge the Justice Committee for making that decision to handle them in parallel, because Wendy Strawbridge was a community nurse and attempted murder was the charge that the man who attacked her faced in court. He was found to be not guilty on account of insanity. But what was most destructive for her and why she was so motivated to put the petition to Parliament was that without any knowledge, without any information, the special patient who attacked her and very nearly killed her was then released unescorted into the same community that she lived in. Had this been a criminal in the justice system, she would have been notified as a victim.

So again, very careful consideration was made in terms of balancing the needs of the special patient and making sure there was nothing that we decided in the select committee that would be detrimental to their recovery and their health and that balanced the needs with the victims’ to be safe in their own community. At this point I want to also acknowledge the work of the officials from the Ministry of Justice and the Ministry of Health, who grappled with some pretty challenging issues in balancing it out. And I think with the considerable efforts of the select committee members, we struck that balance right.

I move, That the question be now put.

Motion agreed to.

The question is that the Hon Louise Upston’s amendment to Part 1 set out on Supplementary Order Paper 98 be agreed to.

Amendment agreed to.

Part 1, as amended, agreed to.

Part 2 Amendments to Mental Health (Compulsory Assessment and Treatment) Act 1992, and Schedule 2