New Zealand Legislation: Acts

9EA Appeal by accused against finding relating to fitness to stand trial

• (1) A person who has been found unfit to stand trial by the Court Martial may appeal against one or both of the following findings:

  • (a) that the evidence against the appellant is sufficient to establish that the appellant caused the act or omission that forms the basis of the offence with which the appellant is charged:

  • (b) that the appellant is unfit to stand trial.

  (2) For the purposes of an appeal under this section,—

  • (a) the finding appealed against is to be regarded as a conviction; and

  • (b) the provisions of this Act relating to appeals, so far as they are applicable and with any necessary modifications, apply to the appeal.

  (3) If the court is satisfied that the evidence presented against the appellant is not sufficient to establish that the appellant caused the act or omission that forms the basis of the offence with which the appellant is charged, the court must quash the finding appealed against and direct that the appellant be discharged.

  (4) A discharge under subsection (3) does not amount to an acquittal.

  (5) In the case of an appeal against a finding relating to the appellant’s fitness to stand trial, the court must (except where the appellant has been discharged under subsection (3)) consider the evidence of 2 qualified medical practitioners (within the meaning of section 187(1) of the Armed Forces Discipline Act 1971), and confirm or quash the finding relating to the appellant’s mental impairment.

  (6) If the court is satisfied that the appellant is mentally impaired, the court must—

  • (a) give the appellant and the respondent an opportunity to be heard and to present evidence as to whether the appellant is unfit to stand trial; and

  • (b) confirm or quash the finding relating to the appellant’s fitness to stand trial.

  (7) If the result of the appeal is that the appellant is fit to stand trial, the court must give written notice of that fact to the Director of Military Prosecutions, who may then lay before the Registrar the charge sheet that, in accordance with section 101E(c) of the Armed Forces Discipline Act 1971, he or she has previously certified in respect of the appellant.

  Section 9EA: substituted, on 1 September 2004, by section 49(1) of the Criminal Procedure (Mentally Impaired Persons) Act 2003 (2003 No 115).

  Section 9EA(1): amended, on 1 July 2009, by section 15(1) of the Court Martial Appeals Amendment Act 2007 (2007 No 99).

  Section 9EA(7): substituted, on 1 July 2009, by section 15(2) of the Court Martial Appeals Amendment Act 2007 (2007 No 99).