THOMAS v NEW ZEALAND POLICE [2023] NZHC 358

THOMAS v NEW ZEALAND POLICE [2023] NZHC 358 [28 February 2023]IN THE HIGH COURT OF NEW ZEALANDNEW PLYMOUTH REGISTRYI TE KŌTI MATUA O AOTEAROANGĀMOTU ROHECRI-2022-443-27[2023] NZHC 358BETWEEN BRADLEY JAMES THOMASAKABRADLEY JAMES DALZELLAppellantAND THE NEW ZEALAND POLICERespondentHearing: 20 September, 28 October 2022 (via VMR)Further submissions received 12 and 25 October 2022;7 February 2023Counsel: N P Bourke for AppellantJ M M Marinovich 20 September 2022;C E Clarke 28 October 2022Judgment: 28 February 2023JUDGMENT (No 2) OF ISAC J[Appeal against conviction][1] Mr Thomas appeals 35 historical convictions spanning some 17 years between1994 and 2021.[2] In a judgment of 23 December 2022 I quashed Mr Thomas' 2013 convictionfor sexual violation.1 I was satisfied on the basis of expert evidence, together withevidence of the court procedure in 2013, that Mr Thomas was not fit to plead or standtrial at that time and that a miscarriage of justice had occurred. The background of theappeal can be found in my earlier judgment.1 Thomas v Police [2022] NZHC 3622.[3] The weight of the expert evidence essentially tended to suggest that ifMr Thomas was not fit to stand trial in 2013, there was a strong likelihood that at nopoint in his adult life was he ever fit to do so. As a result, I was left with seriousconcerns about the safety of Mr Thomas' other 34 convictions. I concluded:2 there is no dispute that Mr Thomas has suffered from a significantintellectual disability for his entire life. There is also no evidence that hisdisability had been identified, assessed or addressed in earlier criminal justiceprocesses. That is most likely due to the behaviours Mr Thomas has developedover the years that mask his disability and leave others with the impressionthat his intellectual abilities are greater than they actually are. In light of allthis, together with his tendency to seek support through health andprofessional bodies by making possibly false or embellished confessions ofoffending, I have serious concerns about the safety of Mr Thomas' remainingconvictions.[4] Despite my concerns, however, I considered it necessary to provide the Crowna further opportunity to address the Court on the remaining convictions because fitnessrequires a fact-specific assessment and the evidence on appeal was primarily focussedon the events surrounding the 2013 conviction. I adjourned the appeal part-heard toallow the Crown an opportunity to provide further evidence and submissionsaddressing the following matters:3(a) whether the convictions in question were the result of guilty pleas orwhether they were entered following a trial or defended hearing;(b) whether there is any evidence that Mr Thomas' disability was assessedor made known to counsel acting and the Court at the relevant time;and(c) if the answers to the first two questions are not clear from the availablehistorical records, given Mr Thomas' inclination to plead guilty tocharges in circumstances where there is doubt about the motivationand veracity of his admissions, whether there is any sound basis toconsider that any of the previous convictions are not liable to be theproduct of a miscarriage of justice.[5] In brief but helpful supplementary submissions dated 7 February 2023,Ms Clarke for the Crown advised that the majority of the police files relating to theappellant's previous convictions have been destroyed and there is no information inthe Police National Intelligence Application of relevance. The only files the policewere able to locate (relating to proceedings between April 2017 and July 2021)2 At [57].3 At [58] and [61].disclosed little relevant information to the assessment of fitness.4 On one occasionMr Bourke raised the issue of a s 38 psychological report but it seems that did not goanywhere.[6] In light of all this, Ms Clarke accepted that there are genuine concerns with thesafety of Mr Thomas' remaining convictions and advised that the Crown does notoppose the balance of the appeal. In my view that concession was well made.[7] In the absence of any evidence that Mr Thomas' intellectual disability wasidentified and appropriately dealt with in relation to any of his previous encounterswith the criminal justice system, and for the reasons recorded in my earlier judgment,I am satisfied that the remainder of his convictions are the result of a miscarriage ofjustice. I quash them accordingly.Conclusion and result[8] The appeal is allowed.[9] The remainder of Mr Thomas' convictions are quashed.Isac JSolicitors:Bourke Law, New PlymouthC&M Legal, New Plymouth4 On the contrary, it appears that Mr Thomas promptly entered guilty pleas in relation to each of thecharges. That is concerning given the expert evidence was that it would likely require significanttime, skill and care to ensure that Mr Thomas, as a result of his intellectual difficulties, was fullyinformed of all matters relevant to a plea, especially when regard is had to his tendency to providefalse or embellished admissions out of a desire to be institutionalised when events in his lifebecame overwhelming.