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Armed Forces Discipline Act 1971

Special provisions for dealing with mentally impaired persons

192: Duration of order for detention as special patient where defendant unfit to stand trial

You could also call this:

"How long you can be kept in detention if you're unfit to stand trial"

Illustration for Armed Forces Discipline Act 1971

If you are found unfit to stand trial, the Court Martial can make an order to keep you in detention as a special patient. The maximum period of detention as a special patient is 10 years if the offence was punishable by imprisonment for life. Otherwise, it is half the maximum term of imprisonment for the offence. If the Court Martial makes an order, it will last until you are brought before the Court Martial again or a direction is given that you should be held as a patient. The order can be cancelled if all charges against you are withdrawn. If a clinician or the Review Tribunal decides you are no longer unfit to stand trial, the Attorney-General will decide whether you should be tried or held as a patient. If no direction is given before the end of the detention period, the Attorney-General will make a decision based on any certificates from the clinician or Review Tribunal. A direction to hold you as a patient is like a compulsory treatment order under the Mental Health (Compulsory Assessment and Treatment) Act 1992. When you are held as a patient, the court case against you will be stopped, and no further action will be taken. The Attorney-General has the power to make decisions about your detention, and the Solicitor-General cannot make these decisions for them.

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View the original legislation for this page at https://legislation.govt.nz/act/public/1986/0120/latest/link.aspx?id=DLM404042.

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Part 10Special provisions for dealing with mentally impaired persons

192Duration of order for detention as special patient where defendant unfit to stand trial

  1. In this section the expression maximum period of detention as a special patient, in relation to any accused person who has been found by the Court Martial to be unfit to stand trial means—

  2. 10 years from the date of the making of the order pursuant to section 191(1), in a case where any offence charged was punishable by imprisonment for life; or
    1. a period from the date of the making of the order pursuant to section 191(1) equal to half the maximum term of imprisonment to which the accused person was liable on conviction of the offence charged or (if the defendant was charged with more than 1 offence) of the offence punishable by the longer or longest term of imprisonment, in any other case.

      1. If an order is made by the Court Martial pursuant to section 191(1) in respect of an accused person who has been found to be unfit to stand trial, the order shall, subject to sections 84 and 128 of the Mental Health (Compulsory Assessment and Treatment) Act 1992, continue in force until—

      2. he is brought before the Court Martial pursuant to a direction given under this section; or
        1. a direction is given under this section that he shall thereafter be held as a patient.

          1. Notwithstanding anything in subsection (1), where, in any case to which that subsection applies, every charge against the person concerned is withdrawn, the order made by the Court under section 191(1)(a) shall be deemed to be cancelled.

          2. If at any time before the expiry of the maximum period of detention as a special patient a certificate of clinical review is given by the responsible clinician under section 77 of the Mental Health (Compulsory Assessment and Treatment) Act 1992, or a certificate of Tribunal review is given by the Review Tribunal under section 80 of that Act, that the person is no longer unfit to stand trial, the Attorney-General shall either direct that the person be placed in service custody for trial by the Court Martial or direct that the person shall thereafter be held as a patient.

          3. If at any time before the expiry of the maximum period of detention as a special patient a certificate of clinical review is given by the responsible clinician under section 77 of the Mental Health (Compulsory Assessment and Treatment) Act 1992, or a certificate of Tribunal review is given by the Review Tribunal under section 80 of that Act, that it is no longer necessary that the person, though still unfit to stand trial, should be subject to the order, the Minister of Health, acting with the concurrence of the Attorney-General, may direct that the person shall thereafter be held as a patient.

          4. If no direction is given under subsection (4) or subsection (5) before the expiry of the maximum period of detention as a special patient, the following provisions shall apply on the expiry of that period:

          5. if a certificate of clinical review is given by the responsible clinician under section 77 of the Mental Health (Compulsory Assessment and Treatment) Act 1992 or a certificate of Tribunal review is given under section 80 of that Act, that the defendant is no longer unfit to stand trial, the Attorney-General shall either direct that the person be placed in service custody for trial by the Court Martial or direct that the person shall thereafter be held as a patient; or
            1. if no such certificate is given, the Attorney-General shall direct that the person shall thereafter be held as a patient.

              1. A direction that the person shall be held as a patient 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.

              2. On the giving under this section of any direction that the person shall be held as a patient, the proceedings in which the order for detention was made shall be stayed, and no further proceedings shall be taken against the person in respect of any offence charged in those proceedings.

              3. The powers and duties conferred and imposed on the Attorney-General by any of the provisions of this section shall not be capable of being exercised or performed by the Solicitor-General.

              Notes
              • Section 192: substituted, on , by section 38 of the Armed Forces Discipline Amendment Act 1985 (1985 No 199).
              • Section 192 heading: amended, on , by section 51 of the Criminal Procedure (Mentally Impaired Persons) Act 2003 (2003 No 115).
              • Section 192(1): amended, on , by section 64(1) of the Armed Forces Discipline Amendment Act (No 2) 2007 (2007 No 98).
              • Section 192(1): amended, on , by section 51 of the Criminal Procedure (Mentally Impaired Persons) Act 2003 (2003 No 115).
              • Section 192(1)(a): amended, on , by section 51 of the Criminal Procedure (Mentally Impaired Persons) Act 2003 (2003 No 115).
              • Section 192(2): amended, on , by section 64(1) of the Armed Forces Discipline Amendment Act (No 2) 2007 (2007 No 98).
              • Section 192(2): amended, on , by section 51 of the Criminal Procedure (Mentally Impaired Persons) Act 2003 (2003 No 115).
              • Section 192(2): amended, on , by section 140(2) of the Mental Health (Compulsory Assessment and Treatment) Act 1992 (1992 No 46).
              • Section 192(2)(a): amended, on , by section 64(1) of the Armed Forces Discipline Amendment Act (No 2) 2007 (2007 No 98).
              • Section 192(2)(b): amended, on , by section 140(2) of the Mental Health (Compulsory Assessment and Treatment) Act 1992 (1992 No 46).
              • Section 192(3): amended, on , by section 64(2) of the Armed Forces Discipline Amendment Act (No 2) 2007 (2007 No 98).
              • Section 192(4): substituted, on , by section 140(2) of the Mental Health (Compulsory Assessment and Treatment) Act 1992 (1992 No 46).
              • Section 192(4): amended, on , by section 64(3) of the Armed Forces Discipline Amendment Act (No 2) 2007 (2007 No 98).
              • Section 192(4): amended, on , by section 51 of the Criminal Procedure (Mentally Impaired Persons) Act 2003 (2003 No 115).
              • Section 192(5): substituted, on , by section 140(2) of the Mental Health (Compulsory Assessment and Treatment) Act 1992 (1992 No 46).
              • Section 192(5): amended, on , by section 51 of the Criminal Procedure (Mentally Impaired Persons) Act 2003 (2003 No 115).
              • Section 192(6): substituted, on , by section 140(2) of the Mental Health (Compulsory Assessment and Treatment) Act 1992 (1992 No 46).
              • Section 192(6)(a): amended, on , by section 64(1) of the Armed Forces Discipline Amendment Act (No 2) 2007 (2007 No 98).
              • Section 192(6)(a): amended, on , by section 64(4) of the Armed Forces Discipline Amendment Act (No 2) 2007 (2007 No 98).
              • Section 192(6)(a): amended, on , by section 51 of the Criminal Procedure (Mentally Impaired Persons) Act 2003 (2003 No 115).
              • Section 192(6A): inserted, on , by section 140(2) of the Mental Health (Compulsory Assessment and Treatment) Act 1992 (1992 No 46).
              • Section 192(7): amended, on , by section 140(2) of the Mental Health (Compulsory Assessment and Treatment) Act 1992 (1992 No 46).