Crown lawyers at a hearing of the Supreme Court in Auckland this week. Photo: Nick Monro/RNZ
An autistic and intellectually disabled man, who has been locked up for half his life, is not being arbitrarily detained and discriminated against, the Crown has told the Supreme Court.
The man, known as Jay, cannot be named for legal reasons. He has been detained in a secure facility for 18 years under the Intellectual Disability Compulsory Care and Rehabilitation Act, after he broke four windows in 2004.
He has since been assessed by multiple experts as being too dangerous to release.
Since being in care, he had reportedly tried to steal and hide weapons, made specific threats of harm to certain staff, and reportedly assaulted staff and damaged property at the facility.
Expert health assessments had deemed Jay as posing a "high, or very high risk of committing acts of violence" if he was released into the community.
Jay's care order has been extended 11 times as experts have repeatedly assessed him as being too dangerous to release, and he has spent the past four years entirely in seclusion at the Mason Clinic in Auckland.
The man's mother has brought his case to the Supreme Court in a bid to get his compulsory care order quashed, claiming he is being arbitrarily detained and his human rights breached.
Lawyer Tony Ellis, appearing via video link at the Supreme Court hearing on Tuesday Photo: Nick Monro/RNZ
In his opening remarks to the court on Tuesday human rights lawyer Tony Ellis, acting for the man's mother, said the appeal centred on whether the courts have struck the right balance between protecting the community and protecting a disabled person's rights.
He argued Jay was discriminated against because if he was not intellectually disabled he would not have been detained for so long under the criminal justice system.
In response, the Crown on Wednesday said the two systems were not comparable.
Crown Lawyer Matt McKillop said Jay's index offence of breaking windows was not the reason why he was being detained under the IDDCRA, it was the risk he had since posed to the public if released.
It would be wrong to compare how Jay would be treated in the criminal justice system, McKillop said.
"When it comes to disability, that's a particular ground where sometimes the presumption of sameness or same treatment is actually an unsafe one.
"Different treatment will actually be required to protect people's rights that just can't be dealt with within the usual system."
Man's outbursts "not high-level" violence
Yesterday, Ellis, told the court Jay misbehaved because he was "bored out of his mind".
Most of those assaults on staff were "pushing, scratching and hitting," the court was told,
On Wednesday, Crown lawyer Kim Laurenson agreed the violence from Jay was "not high-level".
"It's not violence at the severe end of the spectrum, by any stretch of the imagination."
Three staff who looked after Jay prevented any outbursts further escalating, Laurenson said.
Despite this, Jay still had a worrying fascination with weapons and had made threats to harm or kill people, which led to him being assessed as high risk, she said.
Chief Justice Winkelmann, alongside the other Supreme Court justices at this week's hearing. Photo: Nick Monro/RNZ
Chief Justice Winkelmann questioned the lack of a high threshold for keeping intellectually disabled detained under the IDCCRA.
In the criminal justice system, an offender held in preventative detention must pose a very high risk of violent, often sexual, offending.
"It's not just any offending, it's actually quite high."
There was no such threshold to be detained under the IDCCRA, Winkelmann said.
"I'm interested in whether a rights-consistent approach should require some focus, so there is some shape to what is a bunch of opinions."
The two-day appeal hearing concluded this afternoon with the court reserving its judgement.