DISSENTING OPINION OF
NAKAMURA, J., WITH WHOM WAKATSUKI, J., JOINSThe court, on an appeal brought by the State, vacates a judgment of acquittal entered by the circuit court and remands the case for a redetermination of criminal responsibility. In my opinion the decision is unprecedented, unauthorized, and unconstitutional.
I.
After his indictment by the Grand Jury on three counts of sodomy and one count of rape, the defendant gave notice in accord with Hawaii Revised Statutes (HRS) § 704-404(l)1 of an “intention to rely on the defense of physical or mental disease, disorder, or defect excluding responsibility” and moved for a mental examination. Thereupon, the proceedings against him were suspended, *81and the circuit court appointed two psychiatrists and a psychologist to examine the defendant. Although the three examiners initially found the defendant’s capacity to understand the proceedings and assist in his own defense as well as his capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law were unimpaired, two of them subsequently submitted amended reports indicating the presence of an impairing mental disorder.
Relying on these reports, the defendant asserted he could not be held responsible for the criminal acts charged and moved the court for a judgment of acquittal pursuant to HRS § 704-408.2 At the hearing on the motion, testimony supporting the claim of insanity was adduced from the members of the court-appointed panel of examiners who earlier found substantial impairment in defendant’s capacity to appreciate the criminal nature of his conduct and from several other psychiatrists and psychologists. On the first day of the hearing on the motion to acquit, however, defense counsel also requested a determination of defendant’s “capacity to understand the proceedings against him or to assist in his own defense.”3 The hearing on this motion was consolidated with that already in progress, with the understanding that the court’s ruling on defendant’s fitness to proceed would be rendered prior to its *82consideration of the issues related to criminal responsibility.
After hearing the parties out on the question of defendant’s fitness for trial, the circuit court decided he was then incompetent to proceed; it further found he posed a substantial danger to others in his mental state. Consequently, proceedings were suspended, and defendant was committed to the custody of the State Director of Health “for detention, care, and treatment for so long as such unfitness . . . [should] endure.”4
Subsequently, when the circuit court was convinced that defendant’s competency to stand trial had been restored, the hearing on the motion for acquittal was resumed.5 After listening to additional testimony on the issue of criminal responsibility and being satisfied that the defendant’s mental impairment when the offenses were committed “was sufficient to exclude responsibility,” the circuit court entered a judgment of acquittal pursuant to HRS § 704-408.6 See note 2 supra. The State’s appeal to this court followed.
*83II.
“Save in certain instances ..., the State has no appeal in a criminal case unless the defendants are convicted,” Peters v. Jamieson, 48 Haw. 247, 256, 397 P.2d 575, 582 (1964); and save in a certain instance not applicable here,7 “[rjulings prejudicial to the State and leading to an acquittal are never reviewed.” Id. Thus, despite the defendant’s concession “that this court probably had jurisdiction under HRS § 641-13(2) to hear this case,” the pertinent inquiry at the very outset must be whether an appeal lies.8 I would say it does not.
The statute authorizing appeals by the State in criminal cases confers a right of appeal “in a limited number of enumerated instances,” but “does not include in its enumeration a judgment of acquittal.” State v. Shintaku, 64 Haw. 307, 310, 640 P.2d 289, 292 (1982). Claiming the appeal is actually from an order sustaining a special plea in bar, the State purports to seek review on the strength of HRS § 641-13(2) which sanctions an appeal “[f]rom an order or judgment, sustaining a special plea in bar, or dismissing the case where the defendant has not been put in jeopardy.” But “[t]he availability of appellate review sought by the State in a criminal case can be based only on clear statutory authority,” State v. Johnson, 50 Haw. 525, 526, 445 P.2d 36, 37 (1968), and “[sjtatutes granting the State the right of appeal in criminal cases must be strictly construed. They are not to be enlarged by construction and cannot be extended beyond their plain terms.” Territory v. Balarosa, 34 Haw. 662, 665-66 (1938); see also State v. Shintaku, 64 Haw. at 310-11, 640 P.2d at 292.
HRS § 641-13(2) sanctions an appeal from an order sustaining “a special plea in bar.” At common law, such a plea “was ordinarily *84used to raise three defenses —autrefois acquit, autrefois convict, and pardon.” United States v. Sisson, 399 U.S. 267, 300 n.53 (1970) (emphasis in original). We have said it “ordinarily presents some matter extrinsic of the record which completely bars the proceeding, such ... as a plea of insanity,9 a plea of pardon, or a plea of former acquittal, conviction or jeopardy... .” State v. Johnson, 50 Haw. at 526, 445 P.2d at 37, quoting Territory v. Anderson, 25 Haw. 55, 58 (1919). But as the Supreme Court points out, “there is no warrant for its use to single out for determination in advance of trial matters of defense either on questions of law or fact.” United States v. Murdock, 284 U.S. 141, 151 (1931). Cf. United States v. Sisson, 399 U.S. at 301 (“a mo tion in bar cannot be granted on the basis of facts that would necessarily be tried with the general issue in the case.”).
What was presented in support of the motion to acquit was hardly “some matter extrinsic of the record.” What the court heard and evaluated was evidence of defendant’s mental impairment that covered “matters of defense ... on questions of law or fact.” “Compelled as we are to strictly construe HRS § 641-13,” State v. Shintaku, 64 Haw. at 310-11, 640 P.2d at 292, there is no warrant for reading “a special plea in bar” expansively to cover a motion for acquittal premised on a mental disorder sufficient to exclude criminal responsibility. Though the majority finds no cause to address the obvious discrepancy between a plea in bar and a motion to acquit, the significant difference between the two divests this court of jurisdiction to consider the State’s appeal.
III.
Proceeding with the appeal, nonetheless, the majority finds the defendant has yet to be put in jeopardy, and concludes a reversal of *85the circuit court and a remand of the case for a redetermination of criminal responsibility would not run afoul of constitutional commands. The record, however, cannot sustain the finding, and a rerun of the hearing on mental impairment would transgress the cardinal rules of double jeopardy jurisprudence.
A.
“Jeopardy denotes risk. In the constitutional sense, jeopardy describes the risk that is traditionally associated with criminal prosecution.” Breed v. Jones, 421 U.S. 519, 528 (1975). The majority accepts the State’s thesis that the defendant has not been in jeopardy even though he moved for acquittal on a ground that he was deranged when the criminal acts were committed and evidence in support of and in opposition to the motion was adduced. It assumes the “pre-trial motion” did not expose the defendant to a risk of conviction since the circuit court was not empowered to enter a judgment of conviction pursuant to HRS § 704-408.10 Yet in fact, the defendant was in jeopardy when he sought acquittal and brought forth evidence on an essential element of the crimes charged in the indictment.
“Implicit in a motion for judgment of acquittal by reason of mental irresponsibility is the admission that the defendant committed the offense charged.” State v. Lee, 61 Haw. 313, 314, 602 P.2d 944, 946 (1979). Here, what may have been implicit was rendered explicit by evidence submitted in support of the plea for acquittal. The testimony and the opinions of the psychiatrists and psychologists who examined the defendant were grounded in part on accounts furnished by him of the events leading to the prosecu*86tion. The videotaped interviews, tapes of which were made available to the State, undeniably implicated the defendant in the offenses charged.
His involvement is undeniable because the parties agreed, with court approval before the defendant submitted a plea for acquittal, that:
in the event the case proceeds to trial on the merits and the Defendant takes the stand and directly contradicts, in the defense case in chief, statements made by him during any of the audio cassette or video cassette interviews, the prosecution may introduce said portions of the audio-video cassette interviews for the purpose of seeking to impeach the Defendant’s testimony .. . [and] if the Defendant takes the stand and if relevant, the Prosecution may cross examine the Defendant relative to any statements made by him during any audio or video interviews and that if relevant the Prosecution may introduce those portions of the audio or video interviews in rebuttal for the purpose of contradicting or impeaching him.
Thus, the die was cast when the claim of irresponsibility was advanced. The defendant committed himself thereby to pursue the defense of insanity to judgment, for he could not hope thereafter to controvert testimony that he had engaged in the proscribed conduct.11 Realistically, he ran a substantial risk of conviction by moving for an early determination of part of the general issue in the case and proceeding to a hearing.
B.
Built as it is on a misreading of “a special plea in bar” and an infirm factual foundation, the court’s conclusion that the defendant would not be twice put in jeopardy by a second adjudication of an issue once adjudicated in his favor cannot be reconciled with prescribed constitutional standards in the area of concern.
Our concern here is with a judgment of acquittal and further *87jeopardy. “Perhaps the most fundamental rule in the history of double jeopardy jurisprudence has been that ‘[a] verdict of acquittal .. . could not be reviewed, on error or otherwise, without putting [a defendant] twice in jeopardy and thereby violating the Constitution.’ United States v. Ball, 163 U.S. 662, 671 (1896).” United States v. Martin Linen Supply Co., 430 U.S. at 571. “[T]he law attaches particular significance to an acquittal. To permit a second trial after an acquittal, however mistaken the acquittal may have been, would present an unacceptably high risk that the Government, with its vastly superior resources, might wear down the defendant so that ‘even though innocent he may be found guilty.’ ” United States v. Scott, 437 U.S. 82, 91 (1978) (quoting Green v. United States, 355 U.S. 184, 188 (1957)).
But it is not only a verdict of acquittal returned by a jury that triggers the protection against the potential risk associated with further prosecution. A directed verdict of acquittal suffices in this regard, Fong Foo v. United States, 369 U.S. 141, 143 (1962), and so does “a judge’s acquittal after the jury disagrees and is discharged.” United States v. Martin Linen Supply Co., 430 U.S. at 574. And the governing principle formulated by the Supreme Court is: “A judgment of acquittal, whether based on a jury verdict of not guilty or on a ruling by the court that the evidence is insufficient to convict, may not be appealed and terminates the prosecution when a second trial would be necessitated by a reversal.” United States v. Scott, 437 U.S. at 91 (footnote omitted).12
Although a direct acquittal on a motion submitted before actual trial has not been discussed in the relevant case law, the Court has made it clear that the substance of the judge’s action determines whether the acquittal would terminate the prosecution. The determinative question, the Court said, is “whether the ruling of the judge, whatever its label, actually represents a resolution, correct or not, of some or all of the factual elements of the offense charged.” United States v. Martin Linen Supply Co., 430 U.S. at 571. Viewing what transpired below in the light of the Supreme Court’s teach*88ings, I would declare there was an acquittal that rules out further prosecution of the defendant.
C.
The defendant was accused of crimes for which a culpable state of mind is a necessary element. He sought a ruling from the circuit court on whether insanity prevented him from forming the required intent. The applicable statute, HRS § 704-408 as it read before its amendment in 1980, vested the court with full authority to directly acquit him if “satisfied” after a hearing that his mental impairment was sufficient to exclude responsibility,13 and the court did so. In effect, it weighed the evidence adduced by the parties and arrived at a decision that the State had failed to submit enough evidence “to rebut. . . [the] defendant’s essentially factual defense of insanity.” United States v. Scott, 437 U.S. at 97.
*89The circuit court, notwithstanding the majority’s conclusion that the court was without power to do so, had clear authority to enter the judgment of acquittal. See note 13 supra. That the acquittal may have resulted from an erroneous application of controlling legal principles as the majority holds, may affect “the accuracy of that determination, but .. . does not alter its essential character.” United States v. Scott, 437 U.S. at 98. It still “represents a resolution [in the defendant’s favor], correct or not, of some ... of the factual elements of the offense[s] charged.” United States v. Martin Linen Supply Co., 430 U.S. at 571.
“The notion that the prosecution, having failed to make a sufficient case against . . . [the] accused, should be given a second opportunity to do better seems fundamentally inconsistent with the Double Jeopardy Clause.” 2 C. Wright, Federal Practice and Procedure: Criminal 2d § 470, at 677-78 (1982) (footnote omitted). I would dismiss the appeal for want of jurisdiction.
Prior to its amendment in 1980, HRS § 704-408 read as follows:
Determination of irresponsibility. If the report of the examiners filed pursuant to section 704-404 states that the defendant at the time of the conduct alleged suffered from a physical or mental disease, disorder, or defect which substantially impaired his capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law, and the court, after a hearing if a hearing is requested, is satisfied that such impairment was sufficient to-exclude responsibility, the court, on motion of the defendant, shall enter judgment of acquittal on the ground of physical or mental disease, disorder, or defect excluding responsibility.
The foregoing provisions are applicable to this case since the offenses alleged in the indictment occurred in 1978 and 1979 and the amendatory act expressly provided that the amendment would not apply to any offenses occurring before its approval. See S.L.H. 1980, c. 222, § 3.
HRS § 704-403 provides that:
[n]o person who as a result of a physical or mental disease, disorder, or defect lacks capacity to understand the proceedings against him or to assist in his own defense shall be tried, convicted, or sentenced for the commission of an offense so long as such incapacity endures.
The commitment was pursuant to HRS § 704-406(1), which in relevant part provides:
If the court determines that the defendant lacks fitness to proceed, the proceeding against him shall be suspended, except as provided in section 704-407, and the court shall commit him to the custody of the director of health to be placed in an appropriate institution for detention, care, and treatment for so long as such unfitness shall endure.
HRS § 704-406(2) in relevant part provides:
When the court, on its own motion or upon the application of the director of health, the prosecuting attorney, or the defendant, determines, after a hearing if a hearing is requested, that the defendant has regained fitness to proceed, the penal proceeding shall be resumed.
The defendant, however, was not released from custody. He has remained in the custody of the State Director of Health under the court’s order entered pursuant to HRS § 704-411(1), which in pertinent part reads:
When a defendant is acquitted on the ground of physical or mental disease, disorder, or defect excluding responsibility, the court shall, on the basis of the report made pursuant to section 704-404, if uncontested, or the medical evidence given at the trial or at a sepárate hearing, make an order as follows:
(a) The court shall order him to be committed to the custody of the director of health to be placed in an appropriate institution for custody, care, and treatment if the court finds that the defendant presents a risk of danger to himself or the person or property of others and that he is not a proper subject for conditional release ....
HRS § 641-13 was amended in 1982 to authorize an appeal by the State from “a judgment of acquittal following ajury verdict of guilty.” See S.L.H. 1982, c. 81, § 1.
“The objection for want of jurisdiction, if it exists, may be raised by answer or at any subsequent stage of the proceedings and may be raised for the first time on appeal. It may, as a matter of fact, be raised by the court of its own motion.” Territory v. Correa, 24 Haw. 165, 166-67 (1917). For it is fundamental that “parties cannot by waiver confer jurisdiction over the subject matter upon the court.” Tong On v. Tai Kee, 11 Haw. 424, 427 (1898).
A plea of insanity that would present “some matters extrinsic of the record” and would be a plea in bar is a motion to determine fitness to proceed. A hearing thereon would not be to determine responsibility for the charged offense; it would only cover the defendant’s fitness to stand trial. A determination of unfitness in this regard would constitute a bar to proceedings, since “[i]t has long been accepted that a person whose mental condition is such that he lacks the capacity to understand the nature and object of the proceedings against him, to consult with counsel, and to assist in preparing his defense may not be subjected to a trial.” Drope v. Missouri, 420 U.S. 162, 171 (1975); see also State v. Raitz, 63 Haw. 64, 67, 621 P.2d 352, 356 (1980).
True, HRS § 704-408 as it read before its amendment did not empower the court to render a judgment of conviction. Yet this is not dispositive.
The statute did not authorize the entry of a judgment of conviction because such authority would have infringed the right of criminal defendants to be tried by juries composed of their peers. A judgment of acquittal, of course, would not be deemed an infringement of this right. For while a “trial judge is ... barred from attempting to override or interfere with the jurors’ independent judgment in a manner contrary to the interests of the accused,” this “limitation on the role of a trial judge ... has never inhibited his ruling in favor of a criminal defendant.” United States v. Martin Linen Supply Co., 430 U.S. 564, 573 (1977).
This was confirmed during oral argument before this court. In response to a query on a related point, counsel for defendant unequivocally stated he would resubmit the issue of criminal responsibility to the trial court for decision on the evidence already adduced if the case is remanded.
No double jeopardy problems would be implicated in a government appeal from “a judgment of acquittal following a jury verdict of guilty,” which is now allowed. See HRS § 641-13(a). For a reversal there would result in a reinstatement of the verdict, not a retrial. See United States v. Wilson, 420 U.S. 332, 344-45 (1975).
The applicable statute on its face empowered the court to directly acquit the defendant if “satisfied” his mental impairment was “sufficient to exclude responsibility.” See note 2 supra. This more than implies the court was to weigh the evidence and rule on a factual element of the offenses. Any doubts on this score are laid to rest by the Penal Code Commentary on HRS § 704-408; it read as follows:
This section provides for the direct qualified acquittal of the defendant when the report filed pursuant to § 704-404 satisfies the court that at the time of the conduct alleged the defendant suffered from a physical or mental disease, disorder, or defect which precluded responsibility. A hearing shall be had on the issue of the defendant’s responsibility if it is requested by either party or the court. If the court is satisfied on the basis of the report or the hearing or both that the defendant should not be held responsible for the conduct alleged, it shall, upon motion by the defendant, acquit the defendant. Thus, a trial in such cases will be avoided. If the defendant maintains that he did not engage in the conduct alleged, or has a defense in addition to that excluding responsibility, he can, of course, withhold the motion and the case will proceed to trial.
The section changes the prior law in that it vests the power of direct acquittal in the court and does not make it dependent on prosecutorial discretion. (Emphasis added).
That HRS § 704-408 prior to its amendment was to be interpreted in the foregoing manner was reaffirmed when the section was amended. See Sen. Stand. Comm. Rep. No. 689-80, in 1980 Senate Journal, at 1335 (In commenting on the proposed amendment to HRS § 704-408, the Senate Judiciary Committee said: “Presently the law allows an insanity defense to be heard, and ruled on in the first instance, by a judge at a pre-trial hearing. The judge can enter a judgment of acquittal on the grounds of‘physical or mental disease, disorder, or defect excluding responsibility’ or allow the defense to go to a jury.”).