PERSTON v POLICE [2023] NZHC 1115

PERSTON v POLICE [2023] NZHC 1115 [11 May 2023]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2022-404-000337[2023] NZHC 1115IN THE MATTER OF an appeal pursuant to s 115 of theSummary Proceedings Act 1957BETWEEN BLEDDYN DALE RANDALL PERSTONAppellantAND NEW ZEALAND POLICERespondentHearing: 2 May 2023Appearances: G H Vear and S R Noakes for AppellantA Al-Janabi for RespondentJudgment: 11 May 2023JUDGMENT OF EDWARDS JThis judgment was delivered by me on 11 May 2023 at 4.00 pm.Registrar/Deputy RegistrarCounsel/Solicitors:Ministry of Justice (Public Defence Service), AucklandKayes Fletcher Walker (Crown Solicitor at Manukau), Auckland[1] Mr Perston seeks an extension of time to appeal six convictions enteredbetween 1995 and 2000. He does so on the basis that he was not fit to stand trial orplead guilty to any of the charges at the relevant time due to a longstanding intellectualdisability.[2] There is no opposition to the appeal. The respondent supports an extension oftime to bring the appeal and accepts that it is open to this Court to find that there wasa miscarriage of justice in respect of each of the six convictions.Personal circumstances[3] As there is substantial agreement on the core issues in dispute, Mr Perston'spersonal circumstances and the background to this appeal may be canvassed relativelybriefly.[4] Mr Perston is now 44 years of age. He was born in Auckland and is reportedto have experienced hypoxia (oxygen deprivation) at birth, and a head injury at fourand half years of age. However, it is suspected that Mr Perston's intellectualdisabilities pre-date this accident.[5] Initially Mr Perston lived with his parents and sister and then with his fatherwhen his parents separated.[6] Mr Perston presented with behavioural difficulties from the age of five. Hewas assessed at this time as having an IQ of between 45 to 55 (indicating an intellectualdisability) and was subsequently moved to a special school. That intellectual disabilityhas been confirmed in subsequent medical reports commissioned over the years, as Idiscuss in more detail below.[7] Behavioural difficulties continued into Mr Perston's adolescent years. At age13 he was living in foster care due to his behaviour being unmanageable at home, andfrom around 15 or 16 years of age he spent time in various care facilities.[8] In 1996, Mr Perston's father suffered a heart attack in front of him and passedaway. Mr Perston is estranged from other members of his family.[9] Over the years Mr Perston has been charged with various offences includingcommon assault, arson, indecent assault, and male assaults female. Some of thesecharges were withdrawn. He was found unfit to stand trial in relation to charges laidin 1997, 2005 and 2011. Other charges resulted in the convictions the subject of thisappeal which represent Mr Perston's entire criminal record. Those six convictionscomprise:(a) One charge of wilful damage and one charge of unlawfully takes amotor vehicle committed 21 December 1994, with convictions entered31 January 1995.(b) Two charges of wilful damage, and one charge of common assaultcommitted 12 October 1995, with convictions entered 22 January 1996.(c) One charge of common assault committed 4 October 1999 withconviction entered 17 January 2000.[10] In 2012, a disposition order was made under s 25(1)(b) of the CriminalProcedure (Mentally Impaired Persons) Act 2003 requiring Mr Perston to be cared foras a care recipient under the Intellectual Disability (Compulsory Care andRehabilitation) Act 2003. The term of the order was for three years. Mr Perston wasdetained in a secure facility for the duration of the order and now resides there on avoluntary basis.Extension of time to bring the appeal[11] Mr Perston requires an extension of time to bring his appeal. An affidavit hasnot been filed in support of the application. That is understandable given Mr Perston'scircumstances, and nothing turns on the lack of evidence.[12] The touchstone for the grant of an extension of time is the interests of justicein a particular case.1 This involves balancing several factors including:21 R v Knight [1998] 1 NZLR 583 (CA) at 587; see also R v Lee [2006] 3 NZLR 42 (CA) at [96]–[99].2 R v Lee [2006] 3 NZLR 42 (CA) at [99]. the wider interests of society in the finality of decisions, the strength of theproposed appeal, whether the liberty of the subject is involved, the practicalutility of any remedy sought, the extent of the impact on others affected andon the administration of justice, and any prejudice to the Crown.[13] Applying the above principles to this case, I recognise the importance offinality given the lengthy period since convictions were entered. The fact thatMr Perston's liberty is not impacted is also an important consideration. The extent ofdelay is significant, but, somewhat unusually for a case of this nature, there is noprejudice arising out of that delay as most of the relevant contemporaneous reportsremain available. Moreover, the historic nature and type of offending means there isminimal impact on victims. Finally, and most significantly, there is real merit in theappeal as confirmed by the lack of opposition.[14] Given those considerations, I am satisfied that an extension of time to bring theappeal is in the interests of justice. I order accordingly.Jurisdiction to bring appeal[15] The appeal is advanced under s 115 of the Summary Proceedings Act 1957(SPA) on the basis that there has been a miscarriage of justice.[16] A miscarriage of justice is not defined in the SPA. However, the Courts haveapplied the definition in the Criminal Procedure Act 2011.3 That definition refers toan error or irregularity that has created a real risk that the outcome of the trial wasaffected or that it has resulted in an unfair trial or a trial that was a nullity.4[17] The convictions are appealed on the grounds that Mr Perston was neither fit toenter a plea nor to stand trial. Fitness must be assessed according to the law thatapplied at the relevant time.5 In Mr Perston's case this was Part VII of the CriminalJustice Act 1985 (CJA). Section 108 of the CJA provided that a person would be "under a disability if, because of the extent to which that person is mentally disordered", the person could not plead, understand the proceedings, or communicateadequately with counsel.3 See Miller v Police [2017] NZHC 2183 at [5], 12] and [13]; G v Police [2021] NZHC 645 at [17].4 Criminal Procedure Act 2011, s 232(4).5 Ferguson v R [2010] NZCA 2 at [23].[18] A finding that a person was "under a disability" pursuant to s 108 of the CJArequired a finding that the person was "mentally disordered". The definition of"mental disorder" was the same as that under the Mental Health (CompulsoryAssessment and Treatment) Act 1992 which expressly excluded "intellectualdisability".[19] The definitions applying under the CJA created a "gap" for those who wereintellectually disabled but were not mentally disordered as defined in the CJA. TheCourt of Appeal in CG v R canvassed the legislative history in relation to that "gap",observing that it was unintended and subsequently addressed by the enactment of the2004 amendment to the CJA.6[20] This raises a question about the Court's jurisdiction to consider an appealagainst convictions entered under the CJA based on a miscarriage of justice arising asa consequence of the appellant's intellectual disability. This Court has previouslyinvoked its inherent powers to quash convictions on the grounds of miscarriage if itwas subsequently found that the defendant was not fit to stand trial. The invocationof these powers in these circumstances is consistent with the right to a fair trialaffirmed in s 25(a) of the New Zealand Bill of Rights Act 1990. As the Court of Appealobserved in R v L, the requirement that a defendant be fit to stand trial is fundamentalto New Zealand's criminal justice system.7[21] In CG v R, the Court of Appeal confirmed that resorting to the Court's inherentpowers in these circumstances was appropriate, and there was nothing in the CJAwhich required the Court to take an approach inconsistent with the New ZealandBill of Rights Act. The Court said:[32] The Court in R v L was not dealing with an intellectually disableddefendant, but rather one who had been diagnosed as a pathological liar. Therespondent's argument before the Court was that the concept of mentaldisorder should not be applied "to psychological conditions or personalitydifficulties of this kind". The Court's observations in relation to "rare" and"exceptional" cases should be understood in that context. In practice, andcertainly following the passage of the CPMIP Act, the need to have recourseto the courts' inherent power is likely to be rare or exceptional. But we do notconsider it necessary to add the gloss of circumstances needing to be rare or6 CG v R [2022] NZCA 389 at [33].7 R v L [1998] 2 NZLR 141 (CA) at 144.exceptional before the inherent power may be exercised. Rather, and as theCourt observed in R v L, if by reason of some disability a person is unable toobtain a fair trial as guaranteed by s 25 of the New Zealand Bill of Rights Act1990 (the Bill of Rights Act), yet that person falls outside the statutory schemegoverning fitness, recourse may be had to the court's inherent power.[33] We observe that now, consistent with the Supreme Court's decision inFitzgerald v R, the issue should be approached by asking whether anything inthe relevant legislation requires the Court to take an approach that isinconsistent with rights protected by the Bill of Rights Act. As is apparentfrom the extracts set out at [27] above, the Court in R v L did not consider ptVII of the CJA required such a result. We agree. The legislative historysummarised at [17] to [22] above is consistent with this conclusion. It wouldbe wrong to ascribe to Parliament the intention to abrogate a person's right toa fair trial, a fundamental right affirmed by the Bill of Rights Act, from whatwas clearly an unintended legislative gap.[22] Accordingly, I proceed on the basis that the Court has jurisdiction to determinethis appeal.Was Mr Perston unfit to enter a plea and/or stand trial?[23] There are approximately 16 medical reports before the Court spanning theconviction periods. Accordingly, there is a good deal of evidence from which to drawthe necessary conclusions as to Mr Perston's fitness at the relevant time.[24] In March and May 1994, Mr Perston was assessed by two medical practitionersas presenting with an intellectual disability of a moderate degree, with his overallfunctioning being at the level of a seven to eight-year-old. Mr Perston was dischargedpursuant to s 282 of the Children, Young Persons, and Their Families Act 1989 basedon these reports.[25] There do not appear to be any reports prepared in relation to the 1994 offendingwhich resulted in the 1995 convictions. Youth Court notations were entered for thisoffending and Mr Perston was sentenced to come up for sentence if called upon.[26] In contrast, however, there were several reports prepared in relation to the 1995offending which resulted in three of the convictions subject to appeal.[27] It is apparent from the reports prepared at this time that the medicalprofessionals were concerned about the legislative gap affecting those with intellectualdisabilities. The assessments of Mr Perston focused on whether his cognitiveimpairments could be attributed to a mental illness or the head injury he sustained atfour years of age.[28] Two reports prepared around this time concluded that Mr Perston was fit toplead and stand trial. The first is an opinion of Dr Chaplow expressed in a two-pageletter dated 8 December 1995 addressed to Dr Allnut. Dr Chaplow concludes thatMr Perston is able to plead and communicate with counsel despite his intellectualdisability. That assessment is based on a 30-minute interview with Mr Perston inwhich he gives some simplistic answers to questions posed by Dr Chaplow. Theexpert opinion is expressed in three short paragraphs.[29] The second is a report by Dr Fernandez dated January 1996. Dr Fernandez'sassessment took place in the Mason Clinic, where Mr Perston had been transferred forfurther assessment. While Dr Fernandez's report is more in depth than Dr Chaplow's,her observations appear to be directed to the presence of a mental disorder. That focusis not surprising given the statutory test applicable at that time. Dr Fernandezconcluded that Mr Perston does not have a mental illness but presents with featuresconsistent with a diagnosis of a conduct disorder. She concluded that he is notcommittable under the Mental Health (Compulsory Assessment and Treatment) Act.[30] Dr Fernandez also concluded that Mr Perston could discuss the nature of thecharges, knew right from wrong, and had an understanding of court procedures. Inher opinion, Mr Perston was fit to plead and capable of instructing counsel. Thoseconclusions were expressed in four short sentences. The basis for those conclusionsis not evident from the report.[31] The reports of Dr Fernandez and Dr Chaplow stand in contrast to other reportsfrom around this time. Dr Albrecht issued a report into Mr Perston's fitness on24 October 1995. Dr Albrecht concluded that Mr Perston's intellectual function wasat the level of a seven to eight-year-old. At the time of Dr Albrecht's interview,Mr Perston was unable to undergo any further cognitive testing due to his limitedattention, ability to concentrate, and distractibility. Based on that interview, and theinformation available, Dr Albrecht concluded that Mr Perston would have realdifficulty following the court process and would not be able to adequately discussmatters with counsel. He expressed real doubts that Mr Perston would be fit to plead.[32] Similarly, on 22 December 1995, Dr Woodcock wrote to Dr Allnut setting outthe outcomes of two tests undertaken by Mr Perston. Dr Woodcock assessedMr Perston's IQ as being in a range of between 46 to 58, with a confidence level of 90per cent. A "Personality Assessment Inventory" test was administered, but had to beterminated, because Mr Perston had difficulty understanding the concepts involved.[33] I consider Dr Albrecht's report, and the findings of Dr Woodcock, are to bepreferred to the opinions of Dr Chaplow and Dr Fernandez. The first two reports werebased on an in-depth assessment of Mr Perston and testing (where possible). They arealso consistent with the majority of medical evidence before the Court. Theconclusions in the reports of Dr Chaplow and Dr Fernandez are not well substantiatedand are stated in conclusory terms. They were prepared at a time when intellectualdisability was excluded from mental disorder, and this appears to have influenced atleast Dr Fernandez's conclusions. Given these limitations, I place little weight on thereports of Dr Chaplow and Dr Fernandez.[34] Mr Perston was charged with further offending in 1996 and 1997. All medicalreports prepared at this time recorded Mr Perston's intellectual disability, with onestating that Mr Perston had a "possible mental age of eight to ten years". Despite someindication in one of the reports that Mr Perston may have been fit to plead at the time,a finding of disability was made on each occasion and Mr Perston was detained underthe CJA.[35] On 4 October 1999, Mr Perston committed a common assault. He wasconvicted and fined $280 on 17 January 2001. Fitness proceedings do not appear tohave been triggered, and so there were no medical reports prepared at this time.[36] Mr Perston faced subsequent charges in 2005 and 2011. On each occasion hewas found unfit to stand trial.[37] In a report dated 14 June 2011, Dr Goodwin concluded that Mr Perston'scognition presented consistently with his previously known IQ. He considered thatMr Perston showed little insight into his current legal situation and was unable tonominate a preferred plea or indicate any reasoning which might sit behind it.Dr Goodwin also observed that Mr Perston was unable to place information in contextand his attention difficulties meant he was unable to follow court processes.Dr Goodwin concluded that Mr Perston was unfit to stand trial due to his lifelongintellectual disability which would not improve, even with additional coaching.[38] Dr Clare Calvert, in a report dated 21 September 2011, also concluded thatMr Perston did not appear to understand what a plea was and had limitedunderstanding of his current charges. He would most likely experience significantdifficulties understanding the court process. In addition, Dr Calvert concluded thatMr Perston did not have the ability to instruct counsel or to mount a defence. Sheconcluded that Mr Perston would likely be found unfit to stand trial.[39] Considering the medical evidence in its entirety, there is no real doubt thatMr Perston was not fit to plead or stand trial at any time in his life. The medical reportsbefore the Court are consistent as to Mr Perston's intellectual disability. Mr Perstonwas first assessed as having an intellectual disability in 1983, when he was five yearsold. Regular testing of Mr Perston's IQ between 1994 to 2011 demonstratessignificant cognitive impairment and extremely low-level range of intellectualfunction. Significantly, there is no evidence of any improvement or fluctuation in hisintellectual disability or cognitive impairments over time, remaining consistentthroughout.[40] Those cognitive impairments mean it is highly unlikely that Mr Perston wasable to plead, understand the nature or purpose of the proceedings, or communicateadequately with counsel for the purposes of conducting a defence. The two reportsthat suggest otherwise are not substantiated and are contrary to the preponderance ofmedical opinion.[41] Convicting Mr Perston when he was not fit to plead or stand trial resulted inan unfair trial in breach of s 25(a) of the New Zealand Bill of Rights Act, which led toa miscarriage of justice. The convictions must be set aside.Result[42] An extension of time to bring the appeal is granted.[43] The appeal is allowed. The six convictions the subject of the appeal are setaside.___________________Edwards J