NOTE: PURSUANT TO S 130 OF THE INTELLECTUAL DISABILITY (COMPULSORY CARE AND REHABILITATION) ACT 2003, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B, 11C AND 11D OF THE FAMILY COURT ACT 1980. FOR FURTHER INFORMATION, PLEASE
SEE https://www.justice.govt.nz/family/about/restriction-on-publishing- judgments/	
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY

I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE	
CIV-2020-409-000254
[2020] NZHC 2561	

BETWEEN	RAYMOND CHARLES WILLIAMSON
Appellant	
AND	R
Respondent	

Hearing:	16 September 2020	
Counsel:	D R La Hood & N Azam (via VMR) for the Appellant A J Bailey for the Respondent / Counsel to Assist	
Judgment:	30 September 2020	

JUDGMENT OF DOOGUE J

This judgment was delivered by me on 30 September 2020.
pursuant to Rule 11.5 of the High Court Rules.

Registrar/ Deputy Registrar Date:

Solicitors:
Luke Cunningham & Clere, Wellington Hansen Law, Wellington

Copy to:
Mr Bailey, Christchurch

WILLIAMSON v R [2020] NZHC 2561 [30 September 2020]

Introduction	[1]

The background	[9]

The Family Court decision	[19]
Did the care order expire on 6 or 7 February 2020?	[20]
Deferral of expiry of a care order after the order has expired, if an application
is pending	[25]
Did the Family Court have jurisdiction to retrospectively reinstate the care order
after its deferred expiry date had passed?	[28]

Matters subsequent to the Family Court decision	[34]

The present appeal	[38]
Issues on appeal	[38]
Approach to appeal	[39]

If an application for extension of a care order is filed before the care order expires, is the effect of s 87 to defer the expiry of the care order by operation of law until the application has been heard and determined by the Family Court?	[43]
Appellant’s submissions	[43]
Respondent’s submissions	[50]
The statutory framework of the IDCCRA – purpose	[55]
Provisions of the IDCCRA relating to care orders	[68]
The interrelationship between ss 85 and 87 of the IDCCRA	[73]
Interpretation of s 87 of the IDCCRA	[75]
The plain language of s 87	[75]
The language of s 87 in context	[83]

Did the Family Court in fact defer the expiry date of the care order under s 87, by issuing a notice of judicial conference and subsequent minutes?	[93]
Appellant’s submissions	[93]
Respondent’s submissions	[97]
Analysis	[98]

Did the Family Court have jurisdiction to reinstate the care order after it had expired?	[107]
Appellant’s submissions	[107]
Respondent’s submissions	[113]
The two possible interpretations of s 87 of the IDCCRA	[114]
Analysis	[115]

Did the care order issued by Judge McMeeken expire on 6 or 7 February 2020?
[127]
Respondent’s submissions	[127]
Appellant’s submissions	[131]
When did the care order commence?	[134]
Was R unlawfully detained on 7 February 2017?	[143]

Conclusion	[147]

Result	[157]

Introduction

[1]	The respondent, R, is a young man aged 20. He was made a care recipient under the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003  (the IDCCRA) by Judge McMeeken on 7 February 2017, after he was found unfit to stand trial. He was found responsible for one offence of unlawful sexual connection with a female under the age of 12,1 after he used his penis to penetrate the anus of his two-year-old niece.

[2]	On 15 January 2020, as R’s compulsory care order (the care order) was due to expire shortly thereafter, the appellant, R’s care coordinator (Mr Williamson), filed an application under s 85 of the IDCCRA for an extension of the care order for a further two years (at a secure care level).

[3]	On 7 February 2020, the  Family  Court  granted  an  application  made  by Mr Williamson for a deferral of the expiry date of the care order to 7 May 2020, pending the hearing and determination of the application for extension of the care order.

[4]	In preparation for the hearing of the application for an extension of his care order, R was assessed earlier this year by a clinical psychologist Ms Medlicott. In her report she said his risk of future sexual offending is well above average range, and his risk of general offending is in medium range.   She detailed several incidents of     R’s antisocial behaviour in late 2019, the last of which involved R taking a razor blade into a service station and threatening staff, in order to obtain cigarettes.

[5]	Judge Lindsay in the Family Court at Christchurch heard argument on whether or not the care order had originally expired on 6 or 7 February 2020, and whether or not the Court retained jurisdiction after the apparent expiry of the care order on         7 May 2020. The Judge concluded that R’s care order had expired on 7 May 2020, and that there was no longer any jurisdiction to defer the expiry date of the care order or retrospectively reinstate it under the IDCCRA.2

1	Crimes Act 1961, s 128(1)(b).
2	Williamson v R [2020] NZFC 3820.

[6]	Mr Williamson asks this Court to quash the Judge’s decision and remit the case back to the Family Court for the hearing and determination of the s 85 application for an extension of the care order filed on 15 January 2020.

[7]	R cross-appeals one aspect of the decision, relating to the original expiry date of the care order, and the Judge’s finding that R had not been unlawfully detained in February 2017  between  the  pronouncement  of  the  care  order  in  Court  by  Judge McMeeken and the commencement of its operation.

[8]	It is accepted that if the Family Court’s decision is upheld, the only way to trigger a fresh application for a care order is for R to reoffend.

The background

[9]	On 1 December 2016, the Youth Court found there was sufficient evidence to establish on the balance of probabilities that R had caused the act forming the basis of the offence of unlawful sexual connection with a female under 12 years old.3   On   20 December 2016, the Youth Court found R unfit to stand trial.4

[10]	On 7 February 2017, Judge McMeeken in the Youth Court found R to be intellectually disabled as defined in s 7 of the IDCCRA.5 The Judge made an order, pursuant to s 25(1)(b) of the Criminal Procedure (Mentally Impaired Persons) Act 2003 (the CPMIPA), that R be cared for as a care recipient under the IDCCRA.

[11]	Also on 7 February 2017, an order  to  that  effect  was  signed  by  the  deputy registrar. The order stated: “the term of the order is three years effective from 7 February 2016”. Both parties accept there is a typographical error in the date on the order, and it should read 7 February 2017.

[12]	On 15 January 2020, Mr Williamson applied under s 85 of the IDCCRA for an extension of the care order for a further two years. He also applied under s 87 of the

3	Criminal Procedure (Mentally Impaired Persons) Act 2003, s 9.
4	Section 14.
5	R v OR [2017] NZYC 109.

IDCCRA for a deferment of the expiry of the care order, until the substantive application for the extension had been heard.

[13]	On 7 February 2020, the Family Court made an order deferring expiry of the care order. It read: “expiry of the order deferred for 3 months ie 7/5/20 for the application to be heard.”

[14]	On 16 April 2020, counsel for R, Mr Bailey, filed submissions indicating R’s desire to be released from the restrictions of the IDCCRA, and arguing that the deferral made by the Family Court on 7 February 2020 was made without jurisdiction because the care order had expired on 6 February 2020.

[15]	New Zealand entered Level 4 of the COVID-19 pandemic restrictions  on    26 March 2020. On 1 April 2020, the Chief District Court Judge issued a protocol outlining the priority proceedings to be dealt with by the Family Court during the restrictions. The protocol said that if a matter did not fall within any of the listed categories then the matter would be adjourned to the next available date. Applications for extension of care orders under s 85 of IDCCRA were not listed as priority proceedings. This meant the matter was adjourned on 20 April 2020 when the Family Court issued a notice of judicial conference in relation to the substantive application under s 85, scheduled for 12 May 2020. The notice is appended to this judgment as [redacted].

[16]	On 12 May 2020, Judge Lindsay issued a minute, confirming timetabling directions for the hearing of the jurisdictional issue concerning the date at which the care order had originally expired. After the hearing on 15 May 2020, Mr Bailey confirmed that he intended to file further submissions within days, and the Judge issued another minute confirming timetabling directions.

[17]	On 19 May 2020, Mr Bailey filed further submissions, expanding on the jurisdictional issues arising from the February deferral. He also raised a second issue regarding jurisdiction: the expiry of the care order was deferred until 7 May 2020, and the Court had not subsequently deferred its expiry. He submitted that the Court no

longer had jurisdiction  to  defer  or  extend  the  care  order,  as  it  had  expired  on 7 May 2020.

[18]	The Judge determined all  of the  jurisdictional  issues  in  her  judgment  of  3 June 2020.

The Family Court decision

[19]	The Judge found there were three issues for determination:

(a)	Did the care order expire on 6 or 7 February 2020?

(b)	If the care order had expired on 6 February, did the Court have jurisdiction to defer its expiry on 7 February 2020?

(c)	Did the Family Court have jurisdiction to reinstate the care order after its deferred expiry date had passed?

Did the care order expire on 6 or 7 February 2020?

[20]	The Judge noted s 46 of the IDCCRA provides that every care order lasts for the term specified in the care order, but may not be longer than three years. Section 83 provides that on expiry of a care order the recipient ceases to be a care recipient, unless the care order is extended.

[21]	The Judge noted s 35(2) of the Interpretation Act 1999 provides that a period of time described as beginning from or after a specified day does not include that day.

[22]	The Judge rejected an argument from Mr Bailey that the order made was inconsistent with Judge McMeeken’s judgment, or that  it  was  mandatory  for  Judge McMeeken to sign the order. The Judge held that the error in relation to the year recorded in the date was covered by the District Court Act 2016, which confirms a technical default or irregularity does not invalidate an order.6

6	District Court Act 2016, s 117; Family Court Rules 2002, r 204.

[23]	The Judge also considered an argument from Mr Bailey that, if the care order commenced   on   8   February   2017,   R   was   unlawfully   detained   between      7 and 8 February 2017. The Judge held s 35 of the IDCCRA provides for a proposed care recipient to stay in a facility where a compulsory order is pending and “arguably covers any gap between the order being made and taking effect”.7 The Judge noted R was remanded to the care facility on 20 December 2016, for enquiries to be made under the CPMIPA. When the care order was made, he was remanded back to the same facility. She held that s 35 of the IDCCRA allows a care coordinator to direct that a prisoner or former special patient is detained in a facility whilst an order is pending.   The  Judge   was  satisfied  R   was   not   unlawfully  detained  between   7 and 8 February 2017.8

[24]	The Judge ultimately held, with reference to s 35(2) of the Interpretation Act and J v Attorney-General,9 that the care order commenced on 8 February 2017 and ended at midnight on 7 February 2020.10 For the sake of clarity, I interpret this to mean the order commenced at 12.00 am on 8 February 2017, and ended at 11.59 pm on 7 February 2020.

Deferral of expiry of a care order after the order has expired, if an application is pending

[25]	The Judge then considered Mr Williamson’s alternative position: that an order to defer expiry of a care order can be made after the care order has expired, if an application for extension is pending. She noted Mr Williamson’s submission that s 87 of the IDCCRA should be interpreted in line with the purpose of the Act that care recipients who continue to present a risk to the community continue to receive care, and that the purpose of s 87 is to ensure that an order does not lapse whilst an application for extension of a care order is pending.

[26]	The Judge noted that Collins J, in J v Attorney-General, considered whether an order that had expired, and had not been extended or had its expiry deferred, could be reinstated. Collins J found there was no jurisdiction to do so when there was no

7	Williamson v R, above n 2, at [19].
8	At [28].
9	J v Attorney-General [2017] NZHC 701.
10	Williamson v R, above n 2, at [25], [26] and [29].

application for extension pending, but declined to determine whether there was jurisdiction where an application for extension had been filed prior to its expiry.11

[27]	The Judge noted Judge Twaddle also considered the issue in National Intellectual Disability Care Agency v Beck, finding there were two available interpretations of s 87: that the Court may defer the expiry of the order where a s 85 application is pending and the order is due to expire but has not yet done so; or that the Court may defer expiry of the order so long as it has not expired at the time the   s 85 application was filed, even if it had expired before the deferral was made.12 The Judge agreed with Judge Twaddle that a care order is a curtailment of liberty, and allowing an expired care order to be reinstated is inconsistent with the IDCCRA’s purpose of protecting the rights of individuals who are subject to the Act.13

Did the Family Court have jurisdiction to retrospectively reinstate the care order after its deferred expiry date had passed?

[28]	Having determined that the care order had not expired when its expiry was deferred in February 2020, the Judge then turned to consider whether she had jurisdiction to extend it then (in June 2020), given its expiry had only been deferred to 7 May 2020.

[29]	The Judge acknowledged one of the purposes of the IDCCRA, contained in   s 11(b), is to safeguard the rights of individuals subject to it, while also acknowledging the principle in RIDCA Central (Regional Intellectual Disability Care Agency) v VM, that the IDCCRA must be interpreted so that care recipients who continue to present a risk to the community continue to receive care.14   The Judge noted the tension in   Mr Williamson’s argument that there is an overriding principle allowing for the extension of a care order pending determination of a substantive s 85 application, beyond a specified deferral date, as it runs contrary to the focus of s 11(b).15

11	J v Attorney-General, above n 9, at [115].
12	National Intellectual Disability Care Agency v Beck [2016] NZFC 1935.
13	Williamson v R, above n 2, at [36].
14	RIDCA Central (Regional Intellectual Disability Care Agency) v VM [2011] NZCA 659, [2012] 1 NZLR 641.
15	Williamson v R, above n 2, at [51].

[30]	The Judge distinguished the case of J v Attorney-General, where Collins J held it was not fatal that deferment orders did not specify a time limit, on the basis that the deferment orders were made prior to the expiry of the care order.16 She held this was “fundamentally different to reinstating an expired order.”17

[31]	The  Judge  also  considered  the   impact   of   the   COVID-19   protocol.  Mr Williamson submitted the expiry of the care order had been “administratively deferred” by the Court, until the s 85 application could be determined.18 The Judge noted that the Family Court continued to receive without notice applications dealing with urgent cases under Level 3 and Level 4, and that s 87 anticipates the filing of a without notice application rather than timetabling by the registry for an application to be heard on a later date.19

[32]	With reference to the explanatory note to the Intellectual Disability (Compulsory Care) Bill 1999 (the IDCC Bill), the Judge ultimately held that once a care order has expired, regardless of whether an application to extend is pending, there is no authority to detain a special care recipient,20 and there was no jurisdiction for the expired order to be extended.21

[33]	The Judge concluded by noting the difficulty of the situation:

[64]  There is a persuasive case for [R] to continue to enjoy a structured,   and therapeutically sensitive environment. The expectation being this ensures a safe future for the respondent and others. The order is a powerful response intended to meet both the needs of the respondent and the community. The legislative requirements provide for the need for an application to be properly considered before an order that curtails the rights of the subject person. I am not satisfied that I can correct the unintended outcome (for [Mr Williamson], nor either party) that following the expiry of the order I impose a judicial correction. I am mindful of the evidence I have reviewed as to the likely risk the respondent poses without ongoing treatment. The situation is lamentable.

16	J v Attorney-General, above n 9.
17	Williamson v R, above n 2, at [52].
18	At [55].
19	At [58].
20	At [54].
21	At [66].

Matters subsequent to the Family Court decision

[34]	On 8 June 2020, Mr Williamson filed an appeal of Judge Lindsay’s decision in the High Court, and also filed an application for stay or interim relief pursuant to       r 20.10 of the High Court Rules 2016. On 8 June 2020, the Family Court made an order that the care order “shall remain in place pending determination of the appeal.”22

[35]	R then applied to the High Court for a writ of habeas corpus, which Dunningham J heard on 14 August 2020 and declined on 17 August 2020.23

[36]	R then appealed the decision of Dunningham J, and the Court of Appeal dismissed his appeal on 27 August 2020.24 Rather than determining whether R’s detention is lawful, the Court of Appeal declined the appeal on the basis that the application for a writ of habeas corpus was not the appropriate procedure for considering the allegations made by R.25

[37]	Mr La Hood became aware of two matters after the hearing of the appeal before me that he considered ought to be disclosed to the Court. The first was in response to a submission made by Mr Bailey about service of the notice of judicial conference, and the second was an updated specialist assessor’s review and recommendations as to R’s care. Mr Bailey opposed both matters being brought to the Court’s attention, on the grounds they were neither fresh evidence nor relevant. It was proper for Mr La Hood to have brought the matters to the Court’s attention, but ultimately I did not find either matter to be relevant.

The present appeal

Issues on appeal

[38]	This appeal raises four questions:

22	Williamson v R FC Christchurch FAM-2017-009-1411, 8 June 2020.
23	R v Williamson [2020] NZHC 2072.
24	R v Care Co-ordinator [2020] NZCA 364.
25	At [26]-[31].

(a)	If an application for extension of a care order is filed before the care order expires, is the effect of s 87 to defer the expiry of the care order by operation of law until the application has been heard and determined by the Family Court?

(b)	If the answer to (a) is no, did the Family Court in fact defer the expiry date of the care order under s 87, by issuing a notice of judicial conference and subsequent minutes?

(c)	If the answer to (b) is no, did the Family Court have jurisdiction to reinstate the care order after it had expired?

(d)	Did  the  care  order  issued  by  Judge  McMeeken  expire  on  6   or  7 February 2020?

Approach to appeal

[39]	In dealing with the present appeal, I shall adopt the following approach to the issue in [38](a):

(a)	first, I shall examine the statutory framework of the IDCCRA to identify its purpose;

(b)	second, I will examine the provisions that relate to care orders;

(c)	third, I shall examine the interrelationship between ss 85 and 87; and

(d)	finally, I shall examine s 87.

[40]	In answering the question raised by [38](b) I shall review the relevant documentation to ascertain whether the expiry date was in fact deferred by the Family Court.

[41]	I will determine the issue at [38](c) by again considering the legislative framework detailed in answering [38](a), and with reference to the principles in

M v Attorney-General,26 and Sestan v Director of Area Mental Health Services Waitemata District Health Board.27

[42]	I shall then consider the final question in [38](d).

If an application for extension of a care order is filed before the care order expires, is the effect of s 87 to defer the expiry of the care order by operation of law until the application has been heard and determined by the Family Court?

Appellant’s submissions

[43]	Mr La Hood submitted that, when an application under s 85 of the IDCCRA has been made, s 87 automatically defers the expiry of a care order by operation of law until the application has been heard and determined by the Family Court.

[44]	Mr La Hood submitted that, having regard to ss 3 and 11, the legislative history of the IDCCRA, the Court of Appeal’s reasoning in RIDCA,28 and comparisons with the Mental Health (Compulsory Assessment and Treatment) Act 1992 (the MHCATA), the purpose of s 87 must be to ensure that care recipients who pose a risk to the community, and who continue to require compulsory care, keep getting that care. He submitted that Parliament must have intended that care recipients remain under their care order even after expiry, when an application has been filed, so as to ensure they are safe.

[45]	Mr La Hood emphasised that he fully accepted that his interpretation cannot be advanced unless there is a duty on the Court to ensure that any deferrals are expeditious and do not amount to arbitrary detention.

[46]	Mr La Hood referred to the explanatory note of the IDCC Bill, and said it supported his interpretation of s 87. He said Parliament plainly envisaged that a care order would lapse only where no extension has been sought and the expiry date had passed, or where the order was cancelled.

26	M v Attorney-General [2010] NZCA 311.
27	Sestan v Director of Area Mental Health Services Waitemata  District Health Board  [2007]       1 NZLR 767.
28	RIDCA Central (Regional Intellectual Disability Care Agency) v VM, above n 14.

[47]	Mr La Hood directed the Court to the MHCATA, and in particular s 15(3). He submitted that a comparison between the MHCATA and the IDCCRA supports his position that a care order does not lapse so long as an application for extension of the order remains on foot. That is because there is no provision in the IDCCRA like s 15(3) of the MHCATA that requires the Court to release a patient from compulsory care if a deferral is not granted prior to the deferred expiry date when an application for an extension of the care order is pending. Further, s 15(3) of the MHCATA says that where a patient is released in such circumstances, it is without prejudice to the making of a further application. By stark contrast, under the IDCCRA another application can only brought in circumstances where the care recipient commits another crime.

[48]	Mr La Hood submitted that the Court should not have regard to s 83 in its interpretative exercise, because Mr Williamson’s case was that the care order had never in fact expired.

[49]	Mr La Hood also relied on recent dicta in Re Valuers Registration Board, where Simon France J said where “the literal interpretation not only does not advance the purposes of the Act, it actively hinders them; and … is impractical in terms of implementing the Act’s procedures”, the Court must look to other available interpretations of the Act.29 Mr La Hood dismissed Mr Bailey’s arguments as “a highly literal, simplistic but ultimately an inconsistent interpretation of s 87”, which does not advance the purposes of the Act and is impractical in terms of implementing the Act’s procedures.

Respondent’s submissions

[50]	Mr Bailey submitted that if Parliament had intended the interpretation to be that which Mr La Hood contended for, then s 87 would have read “if an extension application is made prior to the expiry of a recipient’s CCO, the expiry of the CCO is deferred until the application is determined”. Mr Bailey relied on the plain meaning of s 87 that the Court “may defer the expiry of the order” to submit that, having regard to the twin principles of s 11(a)-(b), Parliament has vested the importance of

29	Re Valuers Registration Board [2020] NZHC 2050 at [39].

considering whether or not to further detain a care recipient in the discretion of a Family Court Judge.

[51]	Second, he submitted that the language of s 87 refers to an application for an “order” deferring the expiry date, and that an order could not be automatically triggered by the filing of an application.

[52]	Third, he submitted that Mr La Hood’s interpretation would render s 87(2) pointless. There would be no need to reserve a right to apply for a deferral of expiry of a care order, if the filing of an application under s 85 automictically did so.

[53]	Fourth, he submitted Parliament could not possibly have intended that the care recipient’s status and continued detention could be regulated in such a loose fashion, having regard to the primacy that is afforded to their fundamental rights and freedoms. The opportunity for systemic failures to result in arbitrary detentions would be much greater in such a scheme.

[54]	Finally, he submitted that this Court should have due regard to the plain meaning of s 83, and its very clear interrelationship with s 87. He submitted that s 83 makes plain the effect of a care order expiring, and s 87 is relevantly the corresponding empowering section which can prevent expiry occurring.

The statutory framework of the IDCCRA – purpose

[55]	As with any exercise in statutory interpretation the meaning of an enactment must be ascertained from its text and in light of its purpose.30

[56]	I turn first to the legislative history of the IDCCRA. The IDCCRA was developed to address an issue which arose after the enactment of the MHCATA, which deliberately excluded intellectually disabled persons from its ambit (unless they had a mental disorder), because intellectual disability was “seen as a learning disability that results in substantial limitations in functioning … [which] … cannot be treated.”31 It

30	Interpretation Act 1999, s 5(1).
31	Intellectual Disability (Compulsory Care) Bill 1999.

was therefore considered inappropriate for intellectually disabled persons to be subject to treatment orders.

[57]	As a consequence, a number of intellectually disabled persons were released from hospital care, despite some being considered to present serious risks to themselves and others. This position eventually came to public attention, and the IDCC Bill was introduced into Parliament in 1999 to fill that legislative gap.

[58]	The explanatory note to the IDCC Bill said the following about provisions relating to release from care orders and the continuation of care:

Release from Care Orders

Only the courts may release a person from a compulsory care order. This is unlike the Mental Health (Compulsory Assessment and Treatment) Act 1992, where a responsible clinician or a review tribunal or the courts may release a person from an order. The difference in requirements reflects the difference between the objectives of the Mental Health (Compulsory Assessment and Treatment) Act 1992, which are assessment and treatment, and those of this Bill, which focus on care and safety issues for persons with an intellectual disability.

A special care recipient is released from that care order under the following conditions:
•	If the special care recipient is also subject to a sentence of imprisonment, when the sentence ceases to run, at which point he or she becomes a civil care recipient:
•	The Attorney-General or the Minister of Health has approved a change in legal status to that of civil care recipient.

A civil care recipient is released from compulsory care under the following conditions:
•	The expiry of the court order, if no extension is sought; or
•	A Family Court decision following a request from a compulsory care coordinator for a cancellation of the order.

[59]	Clauses 115 and 116, which went on to become the current ss 85 and 87 of the IDCCRA, were described as follows in the clause-by-clause analysis in the explanatory note to the IDCC Bill:

Clauses 115 and 116 relate to the extension of a care recipient’s compulsory care order. An order may be extended by the Family Court. If a care recipient’s order is due to expire when an application for an extension is pending, the Court may defer the expiry of the order so that the care recipient can be detained while the application is heard.

[60]	I turn now to ss 3 and 11 of the IDCCRA, which set out the purposes and principles governing the exercise of powers under the Act:
3	Purposes
The purposes of this Act are—
(a)	to provide courts with appropriate compulsory care and rehabilitation options for persons who have an intellectual disability and who are charged with, or convicted of, an offence; and
(b)	to recognise and safeguard the special rights of individuals subject to this Act; and
(c)	to provide for the appropriate use of different levels of care for individuals who, while no longer subject to the criminal justice system, remain subject to this Act.
…
11	Principles governing exercise of powers under this Act
Every court or person who exercises, or proposes to exercise, a power under this Act in respect of a care recipient must be guided by the principle that the care recipient should be treated so as to protect—
(a)	the health and safety of the care recipient and of others; and
(b)	the rights of the care recipient.

[61]	In relation to the scheme, construction and interpretation of the IDCCRA, the Court of Appeal held in RIDCA:32

What s 11 calls for, therefore, is a balancing of the legitimate interest of the community in protecting the health and safety of the care recipient and others (we will call this the community protection interest) against the liberty interest of the care recipient. That balancing exercise will enable the Court to achieve the purposes described in s 3, because it will lead to the selection of the appropriate compulsory care and rehabilitation option for the care recipient and recognise his or her rights appropriately.

[62]	Mr La Hood submitted that RIDCA is clear authority that the IDCCRA is a public protection statute, and s 11(a) contains the predominant purpose. He submitted the IDCCRA allows for the detention of those with intellectual disabilities who have allegedly offended only when the public protection interest outweighs the care recipient’s liberty issues, particularly having regard to s 11(a). He relied on this proposition for his argument that s 87 must be interpreted as automatically deferring the expiry date of a care order when an application for extension of the care order is

32	RIDCA Central (Regional Intellectual Disability Care Agency) v VM, above n 14, at [36].

filed before the expiry date, to a date when the Family Court has heard and determined the application for an extension.

[63]	The guidance of RIDCA is more nuanced than that. It acknowledges that real efficacy must be given to s 11(b) and the care recipient’s rights so that those from whom the public is protected are acknowledged as human beings with legitimate aspirations who enjoy fundamental rights and freedoms. The Court explained:33
The reference to the rights of a care recipient in s 11(b) is not specific as to which rights are being referred to, and there is no reason to read it down in any way. The IDCCR Act itself sets out a number of rights applying to care recipients or proposed care recipients, such as the right to legal advice and the right to information. There are many others. However, we think the focus of the principles set out in s 11(b) is on more fundamental rights, particularly rights ensuring basic freedoms of the kind described in the New Zealand Bill of Rights Act 1990 (the Bill of Rights) such as the right to freedom of movement, the right not to be arbitrarily arrested or detained, and the right to be free from discrimination on the grounds of disability. In a similar context, the Supreme Court of Canada used the phrase “liberty interest” to describe these rights and we will adopt the same term.

[64]	Section 11 must, in my view, be seen as containing two principles that operate with equal force but which on the facts of any given matter (having regard to the competing tension between them) afford an outcome that is the least restrictive to the care recipient while satisfying any proven community protection need. It should also be remembered that such an evaluation is not necessarily static over the life of a care recipient, rendering it even more important that the state’s response to their detention is administered in as timely a fashion as possible.

[65]	The Court in RIDCA were alive to this:34

We do not accept that the length of time for which a person has already been subject to a compulsory care order can be ignored when assessing his or her liberty interest. This can be illustrated by a case where the assessment of the community protection interest against the care recipient’s liberty interest was finely balanced at the first renewal of a compulsory care order. If, three years later, a further extension is sought and the community protection interest remains essentially the same, the balance against the extension may be tipped by the fact that the care recipient’s liberty interest has become more compelling because he or she has already endured a significant period of reduced liberty. We do not see this as material other than in finely balanced

33	At [35] (footnotes omitted).
34	At [90].

cases. Where a care recipient constituted a significant danger to the public and compulsory care was necessary for community protection, the liberty interest of the care recipient, even if he or she had been in care for a long period, would not outweigh the community protection interest.

[66]	The legislative scheme of the IDCCRA was also considered very recently by the Court of Appeal in M v Attorney-General.35 The Court emphasised again that the IDCCRA is a public protection statute, which allows for the detention of individuals not as a punitive measure but as a public safety measure. The detention is not indefinite; rather, the detention is ordered for finite periods and can be extended only if a court considers it is necessary in the public interest.36 The Court affirmed RIDCA and in particular the passage quoted at [65] herein.

[67]	I conclude that the IDCCRA is in essence a public protection statute, allowing for the detention of individuals with intellectual disabilities who have allegedly offended, only when the public protection interest outweighs the individual’s rights and freedoms, and having regard to the application of the twin principles I have described at [64].

Provisions of the IDCCRA relating to care orders

[68]	Section 46 of the IDCCRA provides that a care order lasts for the term specified in the order, the term specified can be no longer than three years and the term may be extended under s 85:

46	Term of compulsory care order
(1)	Every compulsory care order lasts for the term specified in the order.
(2)	The term specified under subsection (1) may not be longer than 3 years.
(3)	The term specified in the order may be extended under section 85.

[69]	Section 83 of the IDCCRA provides that “on expiry of a compulsory care order the care recipient ceases to be a care recipient:
83	Status on expiry of term of compulsory care order
On the expiry of a compulsory care order the care recipient ceases to be a care recipient under this Act.

35	M v Attorney-General, above n 26.
36	At [128].

[70]	Section 85 of the IDCCRA provides the Family Court may, on the application of a care coordinator, extend the term of the care recipients care order:
85 Extension of compulsory care order
(1)	The Family Court may, on the application of the co-ordinator, extend the term of a care recipient’s compulsory care order.
(2)	If the court extends a compulsory care order for a care recipient no longer subject to the criminal justice system, the court must consider and determine whether the care recipient must receive supervised care or secure care.
(3)	The court may order that a care recipient no longer subject to the criminal justice system receive secure care only if it considers that supervised care would pose a serious danger to the health or safety of the care recipient or of others.

[71]	Section 87 provides that the Family Court may defer the expiry of a care order when an application for an extension is pending:
87 Court may defer expiry of order if  application  for extension  pending
(1)	If a care recipient’s order is due to expire at any time when an application, under section 85, to extend the term of that order is pending before the Family Court, the court may defer the expiry of the order by specifying a date as the last day of a period that, in the opinion of the court, is sufficient for the application to be heard and determined.
(2)	The co-ordinator may apply without notice for an order, under subsection (1), to defer the expiry of a compulsory care order.
(3)	As soon as the court makes an order under subsection (1), the co- ordinator must serve a copy of the order on every person who is entitled to be served with a copy of the application under section 85.
(4)	Every person served, or entitled to be served, under subsection (3) with a copy of an order under subsection (1) may apply to the court for the cancellation or variation of the order.

[72]	Sections 85 and 87 are contained within part 6 of the IDCCRA which concerns “[r]eviews of condition and status of care recipients”. The sections come under subpart 3 of part 6, which is entitled “[c]hange in status of care recipient no longer subject to criminal justice system and special care recipients liable to detention under sentence”. Sections 85 to 88 are further categorised under the subtitle “[c]ontinuation of compulsory care”.

The interrelationship between ss 85 and 87 of the IDCCRA

[73]	There is no doubt that ss 85 and 87 are intrinsically linked, and should be read together. They both relate to the extension of a care order.

[74]	Section 85 contains the power of the Family Court to extend a care order. An application under s 85 needs to be on foot before s 87 is engaged. There is no doubt that s 87 is a provision that is aimed at facilitating the hearing and determination of an application for an extension under s 85. However, for reasons I explain later, it does not have the entirely administrative character for which Mr La Hood contends. It also has substantive elements, that require the attention of a Judge and the making of an order.

Interpretation of s 87 of the IDCCRA

The plain language of s 87

[75]	I now turn to examine the plain language and meaning of s 87. Section 87(1) states “the court may defer the expiry of the order by specifying a date as the last day of a period that, in the opinion of the court, is sufficient for the application to be heard and determined.”

[76]	It is clear that the Court has a discretion to exercise here. It may or may not make an order for deferral; it must come to its own opinion. If it does decide to make an order for deferral, it must turn its mind to the length of period of the deferral having regard to identifying a period that is sufficient for the application for an extension of the care order to be heard and determined.

[77]	The language also clearly places a duty on the Court to make an order. What is required is for a Judge to intentionally decide to exercise his or her discretionary power, and to formalise that intention by the making and articulating of an order for deferral of the expiry date. I have not been directed to any authority (particularly in respect of legislation involving fundamental human rights) where the mere filing of an application results in the automatic making of an order. That must be for the plain reason that all manner of iniquities could result from such a statutory schema.

[78]	There is no ambiguity as to what is meant by the word expiry. There is nothing on the face of the IDCCRA to suggest the meaning of “expiry” takes on different meanings as between s 83 and s 87, and both sections are contained under the same subpart of the Act.

[79]	Section 87(2) provides a care coordinator with the right to apply, without notice, for an order under s 87(1). On Mr La Hood’s interpretation, this section would be rendered meaningless. The clear meaning of s 87(2) is to allow care coordinators to apply without notice in circumstances of urgency. Had Mr Williamson filed a subsequent without notice application, bringing the Court’s attention back to the matter before 7 May 2020, the current situation may well have been avoided.

[80]	Section 87(3) reiterates that what is required is an order of the Court, and this is further emphasised by the requirement on the care coordinator to serve a copy of the order on certain persons.

[81]	Section 87(4) provides the opportunity to apply for the cancellation or variation of an order made under s 87(1).

[82]	In summary, s 87 provides a very clear procedure for an application for deferral of an expiry date when an application for extension is before the Court.

The language of s 87 in context

[83]	Having considered the legislative history and the Court of Appeal’s reasoning in RIDCA,37  I consider s 87 perfectly enshrines  and gives effect to the principles in  s 11. Where either the public need ongoing protection from the care recipient, or the care recipient needs ongoing care, the Court can defer the expiry date to allow for either or both.

[84]	Reposing the power to defer in the Court, and requiring the Court to exercise its discretion having regard to sufficient time to enable the matter to be heard and determined, delicately balances both principles and allows for the concern

37	RIDCA Central (Regional Intellectual Disability Care Agency) v VM, above n 14,

Mr La Hood expressed about the care recipient continuing to get the care they may require. Having formed that view, little turns on Mr La Hood’s submission concerning the explanatory note to the IDCC Bill outlined at [58] above.

[85]	I turn now to Mr La Hood’s submission that a comparison with the MHCATA supports his interpretation. Both Acts have clear mechanisms for the review of the personal status of the individual in respect of whom the relevant statutory frameworks have been engaged.

[86]	They are different, and for very good reasons in my view. The MHCATA is very much focussed in a real time medical treatment context. The MHCATA covers a vast array of patients and presentations. In a significant number of cases, the administration of a drug regime results in almost instantaneous relief and the patient can return to the community in short order. It is entirely appropriate in those circumstances that time frames are highly prescriptive and relatively tight. It is also significant that patients can be released without a court order. The MHCATA also envisages that an application for an extension of a compulsory order will be dealt with after the initial order has expired.

[87]	The mechanism in ss 85 and 86 of IDDCRA is designed to deal with care recipients who have highly complex needs that cannot necessarily be resolved by a drug treatment regime, nor necessarily ever resolved by support and rehabilitation. The mechanism recognises this by ensuring that a care order can only be resolved by expiry or cancellation. Where cancellation is not appropriate and the care order needs to be extended it can be, and while the process of hearing and determining the application for extension is underway the care recipient can be cared for under a deferred expiry date.

[88]	Both the protection of the public and the concern that the care recipient continue to receive care where necessary are preserved, by virtue of the fact that the order for extension must be made before the original expiry date or the deferred expiry date is passed. This conclusion is reinforced by the fact that there is no limit to the number of times a care order can be deferred, provided an application for an extension order is before the Court.

[89]	The problem here is only that the express framework was not utilised or administered in a sufficiently timely way so as to obviate the expiry of the care order on 7 May 2020.

[90]	The meaning for which Mr La Hood contended strains the language of ss 85 and 87 and ignores s 83. The operation of the IDCCRA is precise and internally coherent. The language is clear: the expiry date is the expiry date in the original care order, or as extended under s 85, or as deferred by an order of the Court under s 87(1) after the exercise of its discretion (having regard to the facts that address the competing principles to be applied. I do not consider that the Valuers Registration Board case applies in the present case.38

[91]	Finally, I note Mr La Hood also referred to the decision of the European Court of Human Rights (ECtHR) in Winterwerp v The Netherlands, where Mr Winterwerp argued that he was unlawfully detained because his detention order had been expired for approximately three weeks before it was renewed.39 The ECtHR held that when the appropriate agency applied for the detention to be extended, the former detention order remained valid until the Court had determined the extension application.40 A delay of three weeks was not unreasonable or excessive, and did not amount to an arbitrary deprivation of liberty. While I acknowledge the principles in Winterwerp assist generally in determining what might constitute an unreasonable delay, the case is of limited assistance when interpreting the clear statutory language of the IDCCRA.

[92]	In conclusion, I find that s 87 does not automatically defer the expiry of a care order when an application under s 85 is filed.

Did the Family Court in fact defer the expiry date of the care order under s 87, by issuing a notice of judicial conference and subsequent minutes?

Appellant’s submissions

[93]	Mr La Hood submitted that the Family Court’s notice of judicial conference and minutes (described at [15]-[16] above) amounted to valid orders under s 87 of the

38	Re Valuers Registration Board, above n 29.
39	Winterwerp v The Netherlands [1979] ECHR 4.
40	At [49]-[50].

IDCCRA, deferring the expiry date of 7 May 2020 until the matter could be heard and determined by the Court.

[94]	Relying on J v Attorney-General, Mr La Hood submitted that s 87 does not prescribe the form of a deferral order, and an inconsistency with the requirements of s 87 does not necessarily invalidate an order.41 He submitted it would be a triumph of form over substance to hold that the care order expired simply because an explicit order was not contained in these documents.

[95]	Mr La Hood also submitted that the “extreme intervening circumstances”, due to the Level 4 COVID-19 restrictions that existed at the time the notice of judicial conference was issued, form a relevant part of the circumstances against which the Court’s notice must be considered. When those circumstances are taken into account, they add further weight to the submission that the lack of perfection in the Court’s order does not invalidate it. This is because during the Level 4 lockdown the Court provided the first available date for further directions to be made to progress the application, which was five days after the notional expiry of the existing order.

[96]	Mr La Hood argued that the Court issued the notice of judicial conference through the registrar. He relied on r 12(3) of the Family Court Rules 2002, which states that an order made by a registrar under the Rules has the same effect and is enforceable in the same manner, as if it were an order of a Judge.

Respondent’s submissions

[97]	Mr Bailey rejected Mr La Hood’s argument, primarily on the basis that it is a fundamental and insurmountable problem that the relevant statutory powers do not vest in the registrar, and the notice of judicial conference and minutes did not have the effect for which Mr La Hood contends.

Analysis

[98]	An examination of the notice and minutes relied on is instructive. The notice of judicial conference dated 20 April 2020 was issued by Joanne Thomson, “Court

41	J v Attorney-General, above n 9.

Officer”. It referred to a “conference” as distinct from a “hearing and a determination”. It is plainly a template letter. For example, it stated “[p]lease advise me in writing if the case settles before the scheduled conference date above.” It referred, not to the fact that the Judge would hear and determine the matter on the nominated day (as required by s 87(1)), but rather that he or she would “make orders or directions as to how the matter is to be progressed.” The time allocated to it was 30 minutes.

[99]	The notice made no mention of the expiry of R’s care order being deferred beyond 7 May 2020. There is no evidence that the author of the letter was even aware of the earlier deferment, or when that order was to expire. In other words, there is absolutely nothing on the face of the document from which to conclude, expressly or impliedly, that the Court had turned its mind to the last date by which a full hearing and determination of the matter could be concluded as required by s 87(1).

[100]	Further, Mr Williamson was required to serve a copy of any order for deferral of the expiry date of a care order on R. Such an obviously administrative letter, not bearing the seal of the court or the usual endorsement “by order of the Court” was noticeably absent and would not necessarily draw a care coordinator’s attention to the requirement to serve it on the care recipient.

[101]	As to the word “court” in s 87(1), and Mr La Hood’s submission that r 12(3) of the Family Court Rules means this could include a registrar, I simply say that not every power conferred on the Court is in fact exercised by registrars and for very good reason. Hearings and substantive without notice applications in the Family Court are routinely reserved to Judges to decide.

[102]	The minute of 12 May 2020 is also instructive. At [3], the Judge acknowledged that the proceedings were time sensitive and there was a need for urgency in determination of the application. At [5], the Judge said “[t]he first issue for the Court to determine is whether it has jurisdiction to extend [R’s] care order.” She then set it down for the jurisdiction issue to be determined three days later. It could hardly be said in those circumstances that the minute constituted an express or valid deferral of the expiry date, when that matter was not addressed.

[103]	Likewise, the minute of the 15 May 2020 did not address the issue directly, and therefore it cannot be argued that the Judge expressly deferred the expiry date. In both minutes, she expressly said the contrary, namely that she could very well be functus officio; and she ultimately held she was.

[104]	Mr La Hood is correct that Collins J held in J v Attorney-General that s 87 of the IDCCRA does not prescribe the form of a deferral order,42 and no reasons are required to be given. As the order of 7 February 2020 highlights, deferral orders are made without hearings, in chambers, on the papers, and without reasons. But, in my view, that cannot obviate the requirement of a Judge to consider the competing interests and make an order deferring the expiry date (however that may be done by the Judge or expressed by them). I doubt it could ever be possible or appropriate for a court to administratively progress matters of personal status such as detention under the IDCCRA without expressly stating that an order had been made and what its effect was to be.

[105]	In J v Attorney-General, Collins J also held a failure of the Court to comply with the requirement in s 87(1) to specify a date to which the expiry of a care order was deferred did not invalidate subsequent extensions or deferrals.43 Again, I consider that to be of little use in the present case, where an order was not made at all.

[106]	For all of the above reasons, I conclude that neither the notice of judicial conference dated 20 April 2020, nor the minutes dated 12 and 15 May 2020, amounted to an order of the Court under s 87 of the IDCCRA deferring the expiry date of the care order beyond 7 May 2020. I find the Judge was correct to find that the care order expired on 7 May 2020.

42	At [101].
43	At [114].

Did the Family Court have jurisdiction to reinstate the care order after it had expired?

Appellant’s submissions

[107]	Mr La Hood submitted the Judge was wrong to conclude she did not have jurisdiction to defer the expiry of the order after 7 May 2020.

[108]	Mr La Hood reiterated his arguments in relation to the proper interpretation of s 87, and how it should operate. He argued that the Family Court decision in Beck is not binding,44 and was superseded both in time and authority by the High Court case of J v Attorney-General,45 where it was held that the failure to specify a certain date will not necessarily invalidate proceedings if an extension application is being progressed in a timely manner.

[109]	Mr La Hood submitted the natural meaning of the words “at any time” in s 87 are that the deferral of a care order can be made after its expiry, so long as an extension application under s 85 is pending. He relied upon the cases of M v Attorney-General,46 J v Attorney-General,47 and Sestan,48 which support the proposition that minor technicalities should not be permitted to cut across clear public protection purposes of the IDCCRA without a proper assessment of the degree and seriousness of the compliance.

[110]	Mr La Hood submitted that any degree of demonstrated non-compliance with a specific provision will not have the consequence of making all subsequent actions totally invalid without that being justified by an assessment of what went wrong, how, and why. To do so would be to have a blinkered focus on isolated provisions, ignoring the statutory context and purpose.

[111]	Mr La Hood submitted that both of his interpretations of s 87 (that the notice of judicial conference and minutes amounted to an order under s 87, or that the Court had the ability to reinstate the expired order) are consistent with the New Zealand Bill

44	National Intellectual Disability Care Agency v Beck, above n 12.
45	J v Attorney-General, above n 9.
46	M v Attorney-General, above n 26.
47	J v Attorney-General, above n 9.
48	Sestan v Director of Area Mental Health Services Waitemata District Health Board, above n 27.

of Rights Act 1990 (BORA), using the methodology for interpretation of a statutory provision against BORA as set out by Tipping J in Hansen.49 Further, Mr La Hood submitted that the care recipient continues to have the right to file an application under s 87(4) of IDCCRA to cancel or vary the care order, and therefore any impact on the care recipient’s BORA rights can be ameliorated by the examination of whether the care order ought to be cancelled, extended or varied.

[112]	Mr La Hood submitted that even if it could be argued that either of his interpretations run contrary to a right or freedom in BORA, then such an inconsistency is nevertheless a demonstrably justified limitation in a free and democratic society, in terms of s 5 of BORA. That is because Parliament’s clear purpose and intention in the IDCCRA was to ensure that intellectually disabled persons, who have allegedly committed a crime and who continue to pose a risk to the community which outweighs their own personal freedom, receive the care they require. An interpretation to the contrary would have the clear effect of undermining the clear purpose of the IDCCRA on a technicality.

Respondent’s submissions

[113]	Mr Bailey submitted an expired order ceases to exist, and its expiry cannot subsequently be deferred, and the reasoning in Beck is correct.50

The two possible interpretations of s 87 of the IDCCRA

[114]	It is apparent that, without closer examination, there are two possible interpretations of s 87(1):
(a)	the Court may defer the expiry date of a care order where there is an application pending before the Court under s 85, but the order has not yet expired; or
(b)	the Court may defer the expiry of a care order at any time, so long as:

(i)	an application under s 85 is pending; and

49	R v Hansen [2007] NZSC 7, [2007] 3 NZLR 1.
50	National Intellectual Disability Care Agency v Beck, above n 12.

(ii)	the order had not expired when the s 85 application was made (in other words, the Court has the power to defer the expiry of an expired order, so long as a s 85 application is pending).

Analysis

[115]	I turn first to M v Attorney-General, where the Court of Appeal considered the CPMIPA and IDCCRA in the case of Mr M, who advanced numerous arguments, including that he was arbitrarily detained because he was found unfit to stand trial.51

[116]	Mr M’s argument of arbitrary detention arose in the context of ss 30 and 31 of the CPMIPA. At the relevant time, Mr M was held as a special care recipient under the IDCCRA. Section 30 of the CPMIPA therefore dictated the duration of his detention as a special care recipient, and s 31 governed his change in status from a special care recipient to a care recipient. In December 2008, the maximum period of time he could be detained as a special care recipient expired, pursuant to s 30(1)(b). In January 2009, the Attorney-General ordered that Mr M be held as a care recipient under the IDCCRA, pursuant to s 31(4)(a) of the CPMIPA.

[117]	The relevant sections of the CPMIPA provide:

30	Duration of detention as special patient or special care recipient where person unfit to stand trial

(1)   The maximum period for which a defendant who has been found unfit to stand trial can be detained under section 24 as a special patient or a special care recipient is—

…

(b) if paragraph (a) does not apply, a period from the date of the order under section 24 equal to half the maximum term of imprisonment to which the defendant would have been liable if he or she had been convicted of the offence charged.

(3)	An order under section 24 in respect of a defendant who has been found unfit to stand trial continues in force during the maximum period specified in subsection (1) until—

…

51	M v Attorney-General, above n 26.

(b)	a direction is given, under section 31, that the defendant be held as a patient or as a care recipient.

31	Change of status from special patient to patient or special care recipient to care recipient where person unfit to stand trial

…

(4)	The Attorney-General must direct that the defendant be held as a patient or, as the case requires, as a care recipient if—

(a)	the defendant is still detained as a special patient or as a special care recipient when the maximum period specified in section 30 expires; and

(b)	no direction under subsection (2) or subsection (3) has been given in respect of the defendant; and

(c)	no certificate of the kind referred to in subsection (2) has been given in respect of the defendant.

[118]	Mr M argued that upon expiry of the maximum period of detention provided for by s 30 in December 2008, his detention became unlawful and the Attorney-General no longer had the power under s 31(4) to order his status be changed to that of a care recipient in January 2009.

[119]	The Court of Appeal summarised the High Court’s rejection of Mr M’s argument:52

The Judge did not accept the submission that the effect of s 30(3) was that the order for Mr M’s detention expired on 20 December 2008, and could not be extended. The Judge considered that a delay of a few days or even a week or two in making the direction did not mean that the patient is no longer lawfully detained and must be released from detention. In the absence of clinical certificates of the kind referred to in s 31(2) and (3), the only order that can be made under s 31 is a direction that a special patient becomes a patient, which is deemed to be a compulsory treatment order. None of the s 31 options involves release. It would be wholly inconsistent with that clear legislative direction if a short delay resulted in a default position (release from compulsory status entirely) that was not contemplated by the legislation.

[120]	The Court of Appeal upheld the High Court’s reasoning:53

We agree with the Judge’s reading of ss 30 and 31 of the [CPMIPA]. The drafting of s 30(3) is somewhat clumsy. Read in isolation it could be taken to mean that the period of detention expires at the end of the maximum period

52	At [136] (footnotes omitted).
53	At [143].

prescribed in subs (1). But reading the provisions together as a whole, that conclusion makes no sense. The Attorney-General’s power and duty to give a direction under s 31(4) when the maximum period specified in s 30 expires, if the other criteria set out in that provision are met, does not terminate at the precise moment of expiry of that period. On the approach contended for by [counsel for Mr M], the power would be exercisable only at the very instant that the period expires. If that moment was missed the individual would have to be released — even though that is not one of the outcomes contemplated by the legislation. A reading of the provisions that produces that absurd result cannot have been intended by Parliament, and is not an available meaning that could be adopted under s 6 of NZBORA.

[121]	The reasoning in M v Attorney-General can be distinguished in the present case, based primarily on the legislative framework. The approach of the Court was in the context of “clumsy” legislative drafting within the CPMIPA.54 In contrast, I have found that the process for the extension and deferral of CCOs contained in ss 85 and 87 of the IDCCRA is very clear, and s 83 clearly records the status of a person on expiry of the term of a CCO – they cease to be a care recipient under the IDCCRA.

[122]	In Sestan, the Court of Appeal considered an application from Mr Sestan for a writ of habeas corpus, following alleged breaches of the MHCATA.55 Although finding a breach of the requirement in s 9(2)(d) of the MHCATA to explain the purpose of an examination to a patient in the presence of a family member or caregiver, the Court of Appeal upheld the High Court’s decision not to issue a writ of habeas corpus for the breach.56 The Court found the non-compliance with s 9 did not render the examination invalid.57 In its concluding remarks, the Court held:

[88]	The [MHCAT] is aimed at defining and protecting the rights of people who may be mentally disordered. Courts will not countenance breaches of the Act’s provisions and obligations lightly. It should not be overlooked that, within the statutory framework, ongoing protective mechanisms exist. These checks and balances operate both during the periods of assessment and treatment and after a compulsory treatment order has been made under s 17 by a Judge.

[89]	Because of the nature of the jurisdiction, it is almost inevitable that there will at times be some variance or deviations from strict statutory requirements. It is important to view any non-compliance in the round rather than from a blinkered focus on isolated provisions which ignore the statutory context.

54	At [143].
55	Sestan v Director of Area Mental Health Services Waitemata District Health Board, above n 27.
56	At [55].
57	At [53].

[90]	We do not accept that whenever it is demonstrated that there is any degree of non-compliance with a specific provision the only consequence will be the total invalidity of all subsequent actions. The Court must assess what happened, why it happened and how it happened, remembering that the protection of a vulnerable person, and potentially the community, is at the heart of the legislative framework.

[123]	I consider Sestan can also be distinguished from the present case. It concerned non-compliance by a care facility with a statutory provision relating to how an examination is carried out, not a fundamental question of the Court’s jurisdiction in relation to an expired order.

[124]	Similarly, I consider the finding in J v Attorney-General, that the failure of the Court to comply with the requirement in s 87(1) to specify a date to which the expiry of a CCO is deferred does not necessarily invalidate subsequent extensions or deferrals, can also be distinguished.58 I consider that to be a procedural error that can be corrected by the Court, as opposed to a fundamental error in the nature of an order not being made at all.

[125]	I turn finally to Beck, where Judge Twaddle held a care order had expired on 31 January, and the Court had no jurisdiction to defer it on 1 February:59

In determining the meaning of s 87(1), I take into account particularly the words, “the Court may defer the expiry of the order.” I infer from these words that the order must not have expired and that there is an existing order, the expiry date of which can be deferred. Once an order has expired, there is no expiry date to be deferred. In this case, the order had already expired before the order deferring the expiry date was made, so there was no valid order with an expiry date to be deferred. This interpretation is consistent with the purposes and principles of the Act that the special rights of individuals subject to the Act are protected.

[126]	I consider this reasoning to be correct, and I apply it in the present case. Having found that the care order expired on 7 May 2020, the Family Court was correct to find it had no jurisdiction to defer its expiry in June 2020.

58	J v Attorney-General, above n 9, at [114].
59	National Intellectual Disability Care Agency v Beck, above n 12, at [12].

Did the care order issued by Judge McMeeken expire on 6 or 7 February 2020?

Respondent’s submissions

[127]	Mr Bailey submitted that Judge McMeeken intended the care order to commence  immediately   on   7 February   2017,   and   it   therefore   expired   on   6 February 2020 (meaning the Family Court had no jurisdiction to defer its expiry on 6 February 2020).

[128]	Mr Bailey submitted that, following the finding that R was unfit to stand trial in December 2016, the Court was required to either grant bail or remand him in a facility under s 23 of the CPMIPA pending completion of the CPMIPA procedure. Section 23 of the CPMIPA therefore provided the jurisdiction to detain him, pending the order made pursuant to s 25 of the CPMIPA. He submitted that once the order under s 25 of the CPMIPA was made on 7 February 2017, s 23 no longer provided jurisdiction to detain R. He submitted there was therefore no statutory ability for Judge McMeeken to have delayed commencement of the order to 8 February 2017. He submitted that if the order did not commence until 8 February 2017, then R was unlawfully detained in the hours between Judge McMeeken making the care order during the day on 7 February 2017, and its commencement at 12.00 am on 8 February 2017.

[129]	Mr Bailey submitted that Judge Lindsay erred by relying on s 35 of the IDCCRA, which relates to prisoners or former special patients, when R was neither.

[130]	Mr Bailey submitted J v Attorney-General is not authority for the proposition that a care order begins on the day after the order is made; rather it is authority for the proposition that when a care order is already in force, the extension or deferral of a care order commences the day after the extension or deferral order is made.60 He also submitted the Interpretation Act 1999 is not applicable to the order prepared and signed by the registrar, as it is not an enactment. He submitted an analogy with the Sentencing Act 2002 was more appropriate.

60	J v Attorney-General, above n 9.

Appellant’s submissions

[131]	Mr Azam, counsel for Mr Williamson, submitted that the logic and policy of the common law principle that an order or enactment commence in force from the following day did apply for very good reasons in this case, and the Judge was correct to apply it.

[132]	Second, Mr Azam submitted the Judge was correct to rely on
J v Attorney-General and the Interpretation Act 1999.

[133]	Third, Mr Azam submitted that Mr Bailey’s contention that R’s remand under s 23 of the CPMIPA became obsolete at the precise time Judge McMeeken pronounced the care order in Court demonstrates a misunderstanding of the legislative framework, and R was not unlawfully detained.

When did the care order commence?

[134]	As Mr Azam observed, the difficulty with Mr Bailey’s argument is that it fails to engage with an issue that the Judge was very much alive to. That is, that in order to deal with uncertainties caused by continuous time, the law does not deal with fractions of days and a day is deemed to run from midnight to midnight (de minimis non curat lex).61 As a result, the issue in this case becomes: which midnight does Judge McMeeken’s   order   (made    sometime    during    the    working    day    on 7 February 2017) start from?

[135]	The common law principle is that the inclusive rule (the whole of the first day is included) is applied when it is a question of an Act or general provision coming into effect.62 This is intended to ensure that the effect of the relevant general provision is not cut down by deferring its commencement until the midnight following the making of the order. The exclusive rule (the whole of the first day is excluded) is applied when some specified deed may be done before the end of a specified period.63 That is to

61	T v J [2000] 2 NZLR 236 (HC) at [20].
62	At [21].
63	At [22].

ensure that the time available for doing that specific deed is not cut shorter than the period specified.

[136]	Judge McMeeken ordered that R “be a care recipient in a secure facility for three years in accordance with the care and rehabilitation plan and care programme dated 2 February 2017.”64 The care order was made for the care coordinator and the care manager to care for R as a care recipient for three years in accordance with his care and rehabilitation programme. That constitutes an order to undertake specific deeds. The common law favours the exclusive rule being applied to this order. The policy of the IDCCRA and the care order itself is undermined by a reading to the contrary, because it gives the care coordinator and the care manager less time to undertake the tasks the Court ordered them to do. This principle, together with the underlying policy of the IDCCRA, supports Judge Lindsay’s finding.

[137]	J v Attorney-General is High Court authority for the proposition that s 35 of the Interpretation Act applies to orders and judgments of the Court as well as to enactments.65 There, counsel for the care recipient had advanced the very same argument that Mr Bailey advances in the present case. Collins J quoted the argument in full:66
The 17 December 2012 order was for two years. The first day of that two year detention [was] 17 December 2012. The last [day] on which that order authorised detention as a care recipient [was] day 730 that is 16 December 2914. [J’s] status as a care recipient ceased that day. He was not a care recipient on 17 December 2014… when Judge Southwick purported to defer the expiration of his status as a care recipient.

[138]	Collins J then relied on s 35(2) of the Interpretation Act to reject that argument.67 He held that the first day of the extended order was the day after that order was made.

[139]	Although Mr Bailey is correct that s 4 of the Interpretation Act states that its provisions only relate to enactments, the Act does provide a highly persuasive indicator and guide to the interpretation of other legal instruments such as decisions

64	R v OR, above n 5, at [12].
65	J v Attorney-General, above n 9.
66	At [94].
67	At [95]-[96].

and rulings. Further, there is an overarching interest in there being consistency within the law.

[140]	Mr Bailey’s analogy with the Sentencing Act, where he asserted that as a sentence commences immediately so too should a care order, is not helpful. The Sentencing Act contains very specific provisions about the commencement of sentences which clearly settle the position. A care order is not a sentence, and the statutory regimes are unrelated.

[141]	I also find there is nothing in Mr Bailey’s argument that the deputy registrar’s order has no force and effect. It was issued at the same time as the written version of Judge McMeeken’s oral judgment.68 The common sense inference is that the order is consistent with the judgment and vice versa. Neither the IDCCRA nor the CPMIPA require the order to be issued or signed by the Judge who grants it. The Court needs to make the order. The circumstances of the issuance of the order indicate that the order was issued to give effect to Judge McMeeken’s judgment.

[142]	The Judge was correct to find the care order commenced at 12.00 am  on       8 February 2017 and was originally set to expire at 11.59 pm on 7 February 2020.

Was R unlawfully detained on 7 February 2017?

[143]	I turn now to Mr Bailey’s submission that R was unlawfully detained for the period between Judge  McMeeken’s pronouncement of the care order in Court on     7 February  2017,  and  the  commencement  of   the  care  order  at  12.00  am  on    8 February 2017.

[144]	Section 23 of the CPMIPA provides:

23	Inquiries about persons found unfit to stand trial or insane

(1)	When a person is found unfit to stand trial or is acquitted on account of his or her insanity, the court must order that inquiries be made to determine the most suitable method of dealing with the person under section 24 or section 25.

68	R v OR, above n 5.

(2)	For the purposes of the inquiries under subsection (1), the court must either—

(a)	make it a condition of a grant of bail that the person go to a place approved by the court for the purpose of the inquiries; or

(b)	remand the person to a hospital or a secure facility.

(3)	Despite any provision in the Bail Act 2000, in deciding whether or not to grant bail for the purposes of subsection (2)(a), the need to protect the public is the paramount consideration.

(4)	The inquiries under subsection (1) must be completed as quickly as practicable and, in any event, within 30 days after the date of the order under which the inquiries are made.

(5)	A person who has an intellectual disability must, during the period in which the inquiries are made under subsection (1), be assessed under Part 3 of the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003.

[145]	Mr Bailey’s submission misunderstands the statutory scheme of the Act. In all cases the inquiries are completed well before the Court makes a disposition under ss 24 or 25 of the CPMIPA. Although the remand is for the purposes of making inquiries, the remand does not end when the report is filed. The remand continues until such time as the disposition commences. This is supported by the language of s 25(1) itself. Section 25(1) expressly provides the Court with the power to decide not to make an order for the imprisonment of the defendant, or for the immediate release of the defendant. In this case, the Court made an order under section s 25(1)(b) for R to be cared for as a care recipient under the IDCCRA. That order came into effect at
12.00 am on 8 February 2017.   Until that point, R continued to be remanded under   s 23 of the CPMIPA .

[146]	This does cause a discrepancy of some hours but, having regard to the scheme and purposes of the Act and the common law principles referred to at  [134]-[136],   I am satisfied the detention was not unlawful.

Conclusion

[147]	Section 87 of the IDCCRA does not defer the expiry of a care order by operation of law until an application under s 85 has been heard and determined by the Family Court. Both the scheme of the Act and the clear meaning of the provisions

themselves require the Family Court to turn its mind to whether or not to exercise the discretion to order a deferral of the expiry date of a care order.

[148]	Any such order needs to be expressly articulated rather than implied. It does not matter whether that is by pronouncement in Court or by writing in chambers on the papers. In the present case, the notice of judicial conference and subsequent minutes of the Court, which make no reference to deferral of expiry of the care order, did not constitute an order under s 87. The IDCCRA is a rights-based Act. It deals with the liberty of the individual and protection of the public, and the tension between the two. The stakes could not be higher, and it is unlikely Parliament would have intended that the liberty of the individual could be affected by successive administrative processes, rather than a Court reviewing the individual’s personal status in a substantive process and in a timely fashion.

[149]	It is also inconsistent with the clear language of the IDCCRA to find that the Family Court had jurisdiction to defer the expiry of the care order in June 2020, after its expiry on 7 May 2020.

[150]	It is apparent in the present case that there was confusion and difficulties in the process, contributed to by the COVID-19 circumstances. However, at any stage the Court could have, of its own motion prior to 7 May 2020, turned its mind to the issue and made a further order for deferral of the expiry date of the care order. It did not do so. Mr Williamson could have brought the matter to a head by filing a further without notice application prior to the expiry date of 7 May 2020. He did not do so.

[151]	No one here should be exclusively blamed for the failure. It is simply one of those unfortunate cases where the system has not functioned as it should have. Such cases are fertile ground for making bad law. Had either Mr Williamson applied without notice for a further deferral of the expiry date, or a court officer brought the matter to a Judge’s attention to make a further deferral before 7 May 2020, the IDCCRA would have operated to ensure the relevant exercise of discretion would have been undertaken. The fact that an unfortunate circumstance has arisen is not good reason to strain to find an interpretation that would do more damage than good to the

competing interests of public protection, and the rights of a care recipient for the least intrusive restraint on his or her freedoms.

[152]	In summary, I find it completely untenable to adopt an interpretation of the IDCCRA that allows for implied detention of an individual care recipient, or for the Court to retrospectively reinstate an expired care order. The individual’s rights demand adherence to the clear, certain, and express procedures that exist in the IDCCRA. The personal status of the individual is at the heart of IDCCRA, which demands an interpretation that requires the Court to make considered decisions, and make public pronouncements of status at each stage of the ongoing and lawful detention of the individual.

[153]	It follows that the Family Court Judge did not err in any of the questions she determined, and both the appeal and cross-appeal must fail.

[154]	The original order came into effect at 12.00 am on 8 February 2017 and expired at  11.59  pm  on  7  February  2020.     The  Family  Court  had  jurisdiction  on       7 February 2020 to extend the care order,  and expressly and validly extended it to    7 May 2020.

[155]	In the absence of any further orders being made to extend the expiry date of  7 May 2020, the care order expired that day by operation of s 83 of the IDCCRA.

[156]	Once the care order had expired, the Court did not have the jurisdiction to retrospectively defer its expiry date.

Result

[157]	The appeal is dismissed.

[158]	The cross-appeal is dismissed.

[159]	There will be no award of costs.

[160]	Mr La Hood has advised the appellant intends to appeal this decision if the appeal is declined, and he sought an order continuing R’s detention in the interim. Pursuant to r 20.10(2) of the High Court Rules 2016, I therefore order that R is to continue to be detained as he currently is, pending the determination of the appeal by the Court of Appeal. The appellant is to file its appeal within 14 days of the date of this judgment, otherwise this order will lapse.

Doogue J