CCPR/C/125/D/2684/2015 granted an interim habeas corpus order, requested by the author’s present counsel, returning the author to the jurisdiction of the mental health authorities. 2.7 The author brought two more habeas corpus requests. In one of them, he argued that the original ruling by Porirua District Court and its detention order, including the detention for psychiatric assessment in June 2004, were arbitrary. In the other one, he claimed that there had been a failure to follow statutory process when the initial compulsory intellectual disability care order was issued on 23 February 2006, and that his subsequent detention had been unlawful. Both applications were declined by the High Court. The author submitted two appeals, respectively, to the Court of Appeal. In a judgment of 28 May 2007, the Court of Appeal rejected the author’s appeals on both issues. It found that the original sentence and the order by the Family Court should have been appealed through an ordinary appeal procedure, which the author had failed to do. The habeas corpus application was not an appropriate procedure for appealing the court decisions in question. 2.8 On 23 April 2007, the author submitted to the High Court an application for leave to appeal out of time against his conviction and sentence. He claimed, among other things, that because of his intellectual disability he had been unfit to plead before the Wellington District Court and that the District Court had not assessed properly the extent of his disability by not holding a separate hearing on his fitness to plead. He also claimed that he should have been provided with the assistance of an independent mental health expert to give evidence on his behalf when the District Court ordered a report under section 121 of the Criminal Justice Act. 2.9 Having examined the evidence before it,1 the High Court rejected the application for appeal out of time, on 17 March 2009. The High Court concluded that the author had been fit to plead2 and that no separate hearing on the matter was needed under the requirements of the Criminal Justice Act. Since the psychiatric report ordered by the Porirua District Court under section 121 of the Criminal Justice Act had found that the author was not under disability and had been fit to plead, the Wellington District Court had acted in accordance with it and was not obliged to hold a separate hearing on this issue. 3 The author’s further allegations that he was unable to instruct counsel and that he was inadequately represented were also found by the High Court to be unsubstantiated. To the author’s allegation that the detention of 14 days for a psychiatric assessment that lasted two hours was arbitrary, the High Court responded that the length of detention was not longer than the limit set in the legislation and that it was adequate for the purpose that it served. The High Court concluded that the author had failed to establish a miscarriage of justice such as to impugn 1 2 3 The High Court examined the author’s allegations in detail in order to determine whether there had been a miscarriage of justice by the District Court, on the basis of which it would be obliged to grant leave to appeal out of time. Among other things, the High Court considered 10 medical reports and evidence, concerning the author, from between 1995 and 2007. In addition, the High Court considered a report by Ms. C – a neuropsychologist commissioned by the counsel. The 10 reports found that the author was fit to plead, despite his intellectual disability. The conclusion in Ms. C’s report was that the author was not fit to plead. The High Court found, however, that she had used a stricter test to arrive at her conclusion, which did not reflect the requirements of the Criminal Justice Act applicable in June 2004. The High Court found that under the legislation applicable in June 2004 (part 7 of the Criminal Justice Act), a person could not be found unfit to plead because of intellectual disability, unless he or she was also mentally disordered as defined in the Mental Health (Compulsory Assessment and Treatment) Act 1992. Section 2 of that Act defines mental disorder as being “an abnormal state of mind … characterized by delusions, or by disorders of mood or perception or volition or cognition, of such a degree that it poses a serious danger to the health or safety of that person or of others, or seriously diminishes the capacity of that person to take care of himself or herself”. Intellectually disabled defendants were directly addressed only as of 1 September 2004, when the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003 and the Criminal Procedure (Mentally Impaired Persons) Act 2003 came into effect replacing part 7 of the Criminal Justice Act. Under part 7 of the Criminal Justice Act, the court has a duty, upon receiving a section 121 report, to decide whether there is an appearance of disability. If and only if this threshold is met, the court is required (under section 111) to obtain evidence from two medical practitioners, and then, if satisfied on the evidence of those two practitioners that the defendant is mentally disordered, to determine whether the defendant is in fact under disability. Where the section 121 report does not disclose an appearance of disability, and provided that the judge does not otherwise consider that there is an appearance of disability, the District Court is under no obligation to take the matter further. 3