Should the Crown Lead Evidence of the Defendant's Insanity?

Abstract

In its Mental Impairment Decision-Making and the Insanity Defence report the Law Commission reviewed how the defence of insanity in s 23 of the Crimes Act 1961 was working in New Zealand. With regard to the continued appropriateness of the defence the Law Commission recommended that the insanity defence should not be changed. However, regarding the procedural issue of how the defence could be raised, the Law Commission made the recommendation that a new provision should be inserted into the Criminal Procedure (Mentally Impaired Persons) Act 2003 (CP(MIP)A) to allow: … the Crown, by leave of the judge, to adduce evidence of insanity, in cases where the defence has put his or her mental capacity for criminal intent in issue without raising the insanity defence. The Government has recently issued its response to the report. Whilst agreeing with the recommendation that there should be no change to the insanity defence, the Government has acknowledged the merit of the procedural recommendation. As such the Government has said it will consider this recommendation “in the context of [its] wider review of the [CP(MIP)A]” and other related legislation set to take place in the middle of 2012.7 That the Government will be seriously considering this recommendation makes it relevant to examine what the implications of incorporating such a provision would be ...