CAT/C/68/D/852/2017 punishment. In the exercise of its prosecutorial decision, the police considered the legal position regarding the alleged offences. 4.7 The care and treatment of patients suffering mental illness in the 1970s were subject to the Mental Health Act 1969. Section 112 of the Act included an offence of ill-treating a person with a mental disorder. While this would have been the appropriate charge for the police to consider on the facts, a six-month time limit for commencing proceedings had long expired. A charge against Dr. Leeks under the Act was therefore time-barred. 4.8 The police then considered the Crimes Act 1961. According to section 195 of the Act, anyone who, having custody, control or charge of a child under the age of 16 years, wilfully ill-treats the child in a manner likely to cause them unnecessary suffering, actual bodily harm, injury to health or any mental disorder or disability, is liable to a term of imprisonment not exceeding five years. However, the police determined that there was unlikely to be sufficient evidence to successfully prosecute a charge of wilful cruelty to a child against Dr. Leeks. It considered that several potential witnesses were dead; one of the nurses interviewed had the onset of dementia; most of the former nursing staff were in their 60s or 70s; and Dr. Leeks himself was resident in Australia and by then an Australian citizen. 17 The police also considered it relevant that the investigation of the complaint brought by the complainant was the seventh examination by New Zealand agencies of those or related facts since 1977. Over 30 years had elapsed since the alleged offending. Issues of abuse of process were noted, although not considered. 4.9 In or around December 2009, the police reached a final view that there was no realistic prospect that a criminal prosecution of Dr. Leeks would be successful and having regard to the guidelines for prosecution published by the Solicitor-General, there was no countervailing public interest in proceeding with a prosecution. The complainant was advised by a letter, dated 15 March 2010, of the outcome of the investigation. 4.10 The State party considers that the communication is inadmissible on several grounds. The Convention entered into force for the State party on 9 January 1990. Insofar as it seeks to impugn the actions of the State party prior to that date, the communication is inadmissible ratione temporis. Allegations of breach of articles 2, 10 and 11 may therefore be set aside. 4.11 Aspects of the communication seek to impugn agents outside the State party’s jurisdiction. Insofar as it impugns the decisions of institutions such as the Medical Practitioners Board of Victoria, Australia, the communication is inadmissible. 4.12 Furthermore, the complainant has not exhausted all available domestic remedies. He has not reviewed the decisions of the Medical Council of New Zealand. The decision of the Medical Council not to investigate Dr. Leeks cannot be attributed to the Government because the Council is an independent regulatory body. However, while the Council decided not to prosecute Dr. Leeks, it has always been the case that decisions of the Council may be challenged in the higher courts. Neither the complainant nor others sought at the relevant time a judicial review of the decision of the Council not to investigate Dr. Leeks. It remains a possibility that such a review may well have been successful.18 But now, given the lapse of time, the complainant would be unlikely to obtain a substantive remedy in any judicial review proceedings. 4.13 In addition, the complainant is likely to have the opportunity to participate in the Royal Commission into historical abuse in State care.19 The communication predates the announcement of the Royal Commission and has not taken this into consideration. Although the Government has yet to make a final decision on the terms of reference for the Commission, the indications are that the State care to be examined will include child welfare and youth justice placements as well as care in psychiatric hospitals. It follows that 17 18 19 6 He was reported then to be an alert 80 years of age. Acting on legal advice, he had declined to be interviewed. See Parry v. The Medical Practitioners Disciplinary Tribunal, decision upheld by the High Court, available from www.mpdt.org.nz/decisionsorders/additionalorders/. Royal Commissions of Inquiry report to the Governor-General, the Queen’s representative, and the report is tabled in the parliament.