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Armed Forces Discipline Act 1971

Special provisions for dealing with mentally impaired persons

191: Order to be made if person unfit to stand trial or insane

You could also call this:

"What happens if you're too unwell for a Court Martial trial"

Illustration for Armed Forces Discipline Act 1971

If you are tried by the Court Martial and found unfit to stand trial, or acquitted because you are insane, the Court will make an order. The order will say you must be detained in a hospital as a special patient. The Court can also consider other options, like releasing you or keeping you in custody. If the Court decides you are unfit to stand trial, or you are acquitted because you are insane, you will be kept in strict custody until you are taken to a hospital. You will be taken to the hospital as soon as possible. The Court's order will be treated as a compulsory treatment order under the Mental Health (Compulsory Assessment and Treatment) Act 1992, which you can find at https://legislation.govt.nz/act/public/1986/0120/latest/link.aspx?id=DLM262175. If you are already serving a sentence, it will keep running while you are in the hospital. When you are released from the hospital, you may be taken back to prison to finish your sentence. The Court can also decide not to make an order, and you may be released or kept in custody. The Court will consider what is best for you and the public when making its decision.

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View the original legislation for this page at https://legislation.govt.nz/act/public/1986/0120/latest/link.aspx?id=DLM404027.

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Part 10Special provisions for dealing with mentally impaired persons

191Order to be made if person unfit to stand trial or insane

  1. Subject to subsections (2) and (4), if any person tried by the Court Martial (whether in New Zealand or elsewhere)—

  2. is found unfit to stand trial; or
    1. is acquitted on account of his insanity,—
        1. the Court shall make an order that he be detained in a hospital as a special patient.

      1. In any case to which subsection (1) applies, the Court, having regard to all the circumstances of the case, and being satisfied, after hearing the evidence of 1 or more health assessors, that it would be safe in the interests of the public, or of any person or class of person who may be affected by the Court’s decision, to make an order under this subsection, may, instead of making an order under subsection (1),—

      2. make an order that the person be detained in a hospital as a patient; or
        1. make an order for his immediate release; or
          1. if the person is subject to a sentence of imprisonment or detention (whether imposed under this Act or otherwise) decide not to make an order under this section.

            1. In the exercise of its powers under subsection (2), the Court may take into account any undertaking given by or on behalf of the person that the person will undergo or continue to undergo a particular course of treatment.

            2. Where a person is found unfit to stand trial or is acquitted on account of his or her insanity, the Court may, instead of exercising immediately any of its powers under subsections (1) and (2), adjourn and refer the matter to the Director of Military Prosecutions for the purpose of having enquiries made to determine the most suitable method of dealing with the case pursuant to this section.

            3. An order made by the Court under subsection (2)(a) shall be deemed for the purposes of the Mental Health (Compulsory Assessment and Treatment) Act 1992 to be a compulsory treatment order, and the provisions of that Act shall apply accordingly.

            4. Where, in respect of any person found unfit to stand trial, the Court makes an order under paragraph (a) or paragraph (b) of subsection (2), or decides under paragraph (c) of that subsection not to make any order under this section, the proceedings against that person in the course of which the finding was made shall be stayed, and no further proceedings shall be taken against the person in respect of any offence charged in those proceedings.

            5. Subject to the provisions of this Part, where a person is found unfit to stand trial, or is acquitted on account of his insanity, he shall be kept in strict custody in accordance with Defence Force Orders pending his removal to a hospital.

            6. A person found unfit to stand trial shall be removed to a hospital as soon as practicable after the finding, or if he has been acquitted on account of his insanity, as soon as practicable after that acquittal.

            7. If an order is made under subsection (1) in respect of a person who is subject to a sentence of imprisonment or detention, whether imposed before or after the making of the order, the term of that sentence shall, except during any period while he is unlawfully at large, continue to run during the currency of the order and any period spent as a patient; and, on his discharge from the hospital in which he is detained pursuant to the order or as a patient, he may, unless the sentence has sooner expired, be removed to and received in a prison, service prison, or detention quarter in New Zealand, as the case may require, to undergo the remainder of the sentence.

            Notes
            • Section 191: substituted, on , by section 38 of the Armed Forces Discipline Amendment Act 1985 (1985 No 199).
            • Section 191 heading: amended, on , by section 51 of the Criminal Procedure (Mentally Impaired Persons) Act 2003 (2003 No 115).
            • Section 191(1): amended, on , by section 63(1)(a) of the Armed Forces Discipline Amendment Act (No 2) 2007 (2007 No 98).
            • Section 191(1): amended, on , by section 63(1)(b) of the Armed Forces Discipline Amendment Act (No 2) 2007 (2007 No 98).
            • Section 191(1): amended, on , by section 140(2) of the Mental Health (Compulsory Assessment and Treatment) Act 1992 (1992 No 46).
            • Section 191(1)(a): amended, on , by section 51 of the Criminal Procedure (Mentally Impaired Persons) Act 2003 (2003 No 115).
            • Section 191(2): amended, on , by section 18 of the Military Justice Legislation Amendment Act 2018 (2018 No 36).
            • Section 191(2): amended, on , by section 63(2) of the Armed Forces Discipline Amendment Act (No 2) 2007 (2007 No 98).
            • Section 191(2): amended, on , by section 63(3) of the Armed Forces Discipline Amendment Act (No 2) 2007 (2007 No 98).
            • Section 191(2): amended, on , by section 51 of the Criminal Procedure (Mentally Impaired Persons) Act 2003 (2003 No 115).
            • Section 191(2)(a): amended, on , by section 140(2) of the Mental Health (Compulsory Assessment and Treatment) Act 1992 (1992 No 46).
            • Section 191(3): amended, on , by section 63(3) of the Armed Forces Discipline Amendment Act (No 2) 2007 (2007 No 98).
            • Section 191(4): amended, on , by section 63(3) of the Armed Forces Discipline Amendment Act (No 2) 2007 (2007 No 98).
            • Section 191(4): amended, on , by section 63(4) of the Armed Forces Discipline Amendment Act (No 2) 2007 (2007 No 98).
            • Section 191(4): amended, on , by section 51 of the Criminal Procedure (Mentally Impaired Persons) Act 2003 (2003 No 115).
            • Section 191(4A): inserted, on , by section 140(2) of the Mental Health (Compulsory Assessment and Treatment) Act 1992 (1992 No 46).
            • Section 191(4A): amended, on , by section 63(3) of the Armed Forces Discipline Amendment Act (No 2) 2007 (2007 No 98).
            • Section 191(5): amended, on , by section 63(3) of the Armed Forces Discipline Amendment Act (No 2) 2007 (2007 No 98).
            • Section 191(5): amended, on , by section 51 of the Criminal Procedure (Mentally Impaired Persons) Act 2003 (2003 No 115).
            • Section 191(6): amended, on , by section 51 of the Criminal Procedure (Mentally Impaired Persons) Act 2003 (2003 No 115).
            • Section 191(6): amended, on , by section 140(2) of the Mental Health (Compulsory Assessment and Treatment) Act 1992 (1992 No 46).
            • Section 191(6): amended, on , by section 105(1) of the Defence Act 1990 (1990 No 28).
            • Section 191(7): amended, on , by section 63(5) of the Armed Forces Discipline Amendment Act (No 2) 2007 (2007 No 98).
            • Section 191(7): amended, on , by section 51 of the Criminal Procedure (Mentally Impaired Persons) Act 2003 (2003 No 115).
            • Section 191(7): amended, on , by section 140(2) of the Mental Health (Compulsory Assessment and Treatment) Act 1992 (1992 No 46).
            • Section 191(8): amended, on , by section 206 of the Corrections Act 2004 (2004 No 50).
            • Section 191(8): amended, on , by section 140(2) of the Mental Health (Compulsory Assessment and Treatment) Act 1992 (1992 No 46).