Case concerns interpretation of s 10(2) of Criminal Procedure (Mentally Impaired Persons) Act
According to the New Zealand Supreme Court, a defendant can rely on an objective basis to assert a reasonable belief in consent, independent of the mental condition rendering them unfit to stand trial, to negate involvement and responsibility.
The Supreme Court added that the Crown should disprove this objective basis on the balance of probabilities under s 10(2) of the Criminal Procedure (Mentally Impaired Persons) Act 2003.
In Repia v R [2026] NZSC 82, the appellant faced three sexual violation charges. An issue arose on whether the Crown should establish a defendant’s absence of a reasonable belief that the complainant consented – the third element of s 10(2) – at a s 10 involvement hearing.
The appellant alleged that the absence of a reasonable belief in consent was an essential part of the guilty act addressed by s 10(2), which was not confined to the actus reus.
The Crown countered that the absence of a reasonable belief in consent was not part of the s 10(2) causation inquiry because the language of s 10(2) covered only the first two elements – penetration and the absence of consent.
The District Court, the High Court, and the Court of Appeal all agreed with the Crown’s construction.
In August 2020, Judge Sinclair of the District Court found the appellant mentally impaired and unfit to stand trial. Expert evidence from two psychiatrists confirmed that the appellant had continuous and treatment-resistant schizophrenia.
In 2021, Judge Gibson of the District Court considered the evidence adequate to prove the appellant’s involvement in the alleged offending under s 10. In 2022, Judge Harvey of the High Court upheld Judge Gibson’s finding of involvement.
In 2024, the Court of Appeal dismissed the appeal upon finding the s 10(2) inquiry limited to the actus reus.
The Supreme Court of New Zealand granted the appellant leave to appeal on the question of whether the Court of Appeal correctly dismissed his appeal because an inquiry in a s 10 involvement hearing excluded his reasonable belief in consent.
Ultimately, while it reached a different view on the legal principle than the appeal court, the Supreme Court dismissed the appeal. The Supreme Court explained that the scope of s 10(2):
The Supreme Court acknowledged that this case involved intentional penetration, a lack of consent from the complainant, who had protested repeatedly, and the use of physical force against her.
Given the entirety of the evidence, the Supreme Court found the judge entitled to determine that the Crown had established an absence of reasonable belief in consent.
Thus, the Supreme Court held that the appeal had a somewhat illusory quality and lacked the evidential basis for the judge to reach another outcome.
Based on the statutory language in s 10(2), Chief Justice Winkelmann saw a less rights‑infringing interpretation than the majority’s.
Winkelmann explained that the courts should only dispense with proof of mens rea if the defendant’s mental impairment led to deficient proof in the Crown case or any doubt that the defence raised in that regard.
Meanwhile, Justice Glazebrook preferred to approach the issue only based on principle.
