Not Guilty by Reason of Insanity: Balancing Victims' Rights and the Insanity Defence

Abstract

Under s 23 of the Crimes Act 1961, defendants in New Zealand that are deemed insane at the time of committing the actus reus of an offence are able to be found not guilty by reason of insanity. As the defendant cannot be found criminally responsible for their actions, they are not punished with a criminal record or prison sentence. However, due to public safety concerns, those acquitted under the insanity defence are usually required to undertake compulsory mental health treatment and are therefore dealt with under the health system, in lieu of the criminal justice system. Due to this, victims of those found not guilty by reason of insanity are not afforded the same rights as victims that fall under the ambit of the criminal justice system. With the current focus on victims’ rights following the Te Tangi o te Manawanui Recommendations for Reform as part of the H paitia te Oranga Tangata Safe and Effective Justice initiative, attention is also being focused on improving the experience for victims of those found not guilty by reason of insanity. The recent drawing from the ballot of the Rights for Victims of Insane Offenders Private Member's Bill and the publicity surrounding Wendy Hamer’s victims’ rights petition has highlighted the need to discuss this issue. Using cases from New Zealand, Canada and Australia, this paper considers why reform is needed and considers how the rights and interests of victims of defendants found not guilty by reason of insanity can be strengthened, whilst still ensuring the overarching rationale of the insanity defence is protected. A number of suggested reforms intended to improve victims’ rights are found to be inappropriate due to the fact they undermine the key rationales of the defence: treatment, not punishment; community safety; and the medical nature of decision making. The paper recommends and concludes that strengthening service rights and providing specialised assistance will provide a better system for victims of those found not guilty by reason of insanity without undermining the working of the defence itself.