FAN v NEW ZEALAND POLICE [2020] NZHC 2696

FAN v NEW ZEALAND POLICE [2020] NZHC 2696 [14 October 2020]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2020-404-000131CRI-2020-404-000132[2020] NZHC 2696BETWEEN CHARLES FANAppellantAND NEW ZEALAND POLICERespondentHearing: 12 October 2020Appearances: Scott Walker for the AppellantSarah McKenzie for the Respondent (via AVL)Judgment: 14 October 2020JUDGMENT OF MOORE J[Appeal against conviction]This judgment was delivered by me on 14 October 2020 at 2:00 pm.Registrar/ Deputy RegistrarDate:Introduction[1] On 8 August 2018 Charles Fan was sentenced by Judge M J Callaghan in theDistrict Court at Queenstown.1[2] He had earlier pleaded guilty to two charges of theft2 and one charge of causingloss by deception.3 On each charge he was sentenced to 50 hours' community workand ordered to pay reparation.[3] Subsequent events now raise serious questions as to Mr Fan's mental health atthe time of the offending and when he entered his pleas of guilty. A psychiatric reporthas been obtained which concludes not only was Mr Fan probably unfit to plead, buthe was probably also insane at the time of the index offending.[4] Mr Fan brings this appeal on the basis that he should have been found unfit toplead and/or acquitted on the grounds of insanity and, as a consequence, a miscarriageof justice has occurred and the convictions should be set aside.The facts and the charges[5] On 25 May 2018 Mr Fan drove his car into the Z Energy Service Station inQueenstown. He placed $88.36 worth of petrol into his car and left without paying.[6] Approximately a week-and-a-half later, on 3 June 2018, he did the same thing.This time he poured $89.01 worth of petrol into his car before leaving without paying.[7] When asked to explain this offending he said he had no money. This offendingis reflected in the two charges of theft.[8] Then, on 2 August 2018 Mr Fan entered a therapeutic massage parlour andobtained a 90-minute massage, at the end of which he was asked to pay. He said hedid not have any money. He remained at the premises for about 10 minutes chattingwith an employee who again asked him to pay. He got up, left and sat outside. Again1 R v Fan [2018] NZDC 27584.2 Crimes Act 1961, ss 219 and 223(d); maximum penalty three months' imprisonment.3 Sections 240(1)(d) and 241(c); maximum penalty three months' imprisonment.he was asked to pay. He responded with foul language. The Police were called andwhen asked for an explanation, his response was, "Charge it to my daughter". Thisoffending is captured by the charge of causing loss by deception.4Personal factors and psychiatric history[9] Mr Fan is a 33-year-old man of Taiwanese descent. He has lived inNew Zealand since he was 10. He normally lives with his family in East Auckland.[10] Mr Fan has been diagnosed with bipolar effective disorder. Since May 2012he has been admitted six times to acute inpatient mental health facilities. Prior to theonset of his illness he was a high-functioning individual with a post-graduatequalification in aeronautical engineering.[11] His acute mental health relapses have been the result of poor insight into hismental health and his need to take medication. Although he has no obviouscriminogenic factors or substance abuse disorders, he has a tendency to be verballyaggressive and disorderly when unwell.[12] At the beginning of 2018 he moved out of his parents' home, secured a flat andfound work in a car dealership. At the time it appears he was functioning well,although on his account he had not taken any of his prescribed medication for a year.Initially it seems things went well. However, his relationship with his employerdeteriorated and, whether this was a consequence of his declining mental health or not,he left his job and drove to Queenstown. He arrived there in mid-2018 and lived outof his car. He did not tell his family where he was.[13] It was from at least this time that his paranoid delusions returned. He began tobelieve he was the subject of a social experiment similar to the movie, The TrumanShow. He believed that his every move was being monitored and filmed. He thoughtall of those he came into contact were wearing microphones and were part of theexperiment and knew him. He believed that the venture was being financed by BillGates. It was during this period that the index offending took place.4 Mr Walker advised the Court that Mr Fan has since made full reparation.[14] Four months later Mr Fan committed further offences.5 He was charged. Theday after the last incident on 23 December 2018 he was admitted to the SouthlandInpatient Mental Health Unit. He continued to exhibit similar paranoid delusions.[15] Following his discharge, he returned to Auckland to live with his family. Onintimations of pleas of guilty, the charges were transferred to the Auckland DistrictCourt and on 4 July 2019 Judge R J Collins found him not guilty of all charges byreason of insanity.[16] A psychiatric report has been obtained for Mr Fan in respect of the presentcharges. In summary, it concludes that given his chronic psychiatric illness and theparticular features of his offending, he was probably both unfit to plead and was insaneat the time of the offending.Application to extend time for filing appeal[17] It is against that background that Mr Walker, for Mr Fan, applies for anextension of time for the filing his notice of appeal.6 That application was not opposed.Given the circumstances I am satisfied it is appropriate to grant leave.Legal principles on appeal[18] This is a first appeal against conviction.7 It is brought on the basis that amiscarriage of justice has occurred.[19] I may only allow Mr Fan's appeal if I am satisfied that a miscarriage of justiceoccurred or if, for any other reason, a miscarriage of justice has occurred.8[20] A miscarriage of justice means any error, irregularity or occurrence in relationto or affecting the trial that has created a real risk that the outcome of the trial was5 On 1 December 2018, disorderly behaviour; 1 December 2018, possession of an offensive weapon;23 December 2018, disorderly behaviour and theft under $500.6 Criminal Procedure Act 2011, s 231(3).7 Section 229.8 Section 232(2)(c).affected or has resulted in an unfair trial or a trial that was a nullity.9 A trial includes aproceeding in which the appellant pleaded guilty.10[21] The meaning of "real risk" was discussed by the Supreme Court inSungsuwan v R.11 This formulation was approved in the context of the CriminalProcedure Act 2011 ("the CPA") in the Court of Appeal decision in Wiley v R.12 Thereal risk the outcome of the trial was affected arises when:" there is a reasonable possibility that a not guilty (or more favourable)verdict might have been delivered if nothing had gone wrong."[22] The Court of Appeal observed in R v Le Page that it is only in exceptionalcircumstances that an appeal against conviction will be entertained after a guilty plea.13The appellant must show that a miscarriage of justice will occur if the conviction isnot overturned. There the Court stated that a miscarriage of justice following a guiltyplea will be indicated in at least three broad situations, of which one is where theappellant did not appreciate the nature of, or did not intend to plead guilty to, aparticular charge.14Application to admit fresh evidence – Dr Cavney's report[23] Mr Fan seeks leave to adduce fresh evidence in the form of the psychiatricreport. This comprehensive 12-page report, dated 21 June 2020, was prepared byDr J Cavney, a consultant forensic psychiatrist employed at the Mason Clinic,Waitemata District Health Board.159 Criminal Procedure Act 2011, s 232(4).10 Section 232(5).11 Sungsuwan v R [2005] NSC 57, [2006] 1 NZLR 730 at [110], per Tipping J.12 Wiley v R [2006] NZCA 28.13 R v Le Page [2005] 2 NZLR 845 at [16].14 At [17].15 Although Dr Cavney is employed by the Mason Clinic, he prepared the report in his privatecapacity. He is not Mr Fan's responsible clinician.[24] The principles to be applied in determining fresh evidence applications are wellsettled. For such evidence to be admitted on appeal it must be:16(a) fresh (that is the evidence could not, with reasonable diligence, havebeen produced at trial);(b) credible; and(c) cogent (that is the evidence is such that, in combination with the otherevidence at trial, it might reasonably have led to a finding of not guiltyif called at the trial).[25] The general principle is that if the evidence is both credible and fresh it shouldgenerally be admitted unless the Court is satisfied that if admitted it would have noeffect on the safety of the conviction. If the Court considers there is a risk of amiscarriage of justice if the evidence is excluded, it should be admittednotwithstanding that it may not be fresh.[26] Ms McKenzie, for the Police, submits that the evidence cannot be said to befresh. I assume this is because Mr Fan's psychiatric presentation would, withreasonable diligence, have been discovered and psychiatric evidence obtained on boththe question of fitness to plead as well as insanity. However, in the course of hisappearances in the Queenstown District Court, Mr Fan was assisted by duty solicitors.I have seen reports from them which would suggest there was nothing which alertedthem to his chronic mental illness or how that might have influenced his offending. Inthose circumstances it is entirely conceivable that his illness and its effect on hisfacility to offend, was missed. Even with reasonable diligence it may well have beenoverlooked. For those reasons I am inclined to the view that the psychiatric evidenceis fresh.[27] Certainly, and unsurprisingly, no challenge is made to its credibility andcogency.16 Lundy v R [2013] UKPC 28; [2014] 2 NZLR 273.[28] In any event, even if I am wrong on the question of the freshness of theevidence, as the authorities emphasise, it may still be admitted if to do otherwise wouldresult in a miscarriage of justice. For the reasons which follow I am satisfied that amiscarriage of justice would occur if this evidence was not admitted on the appeal.Grounds of appeal[29] Mr Walker submitted that there are three grounds supporting his claim thatjustice has miscarried in this case:(a) Mr Fan was unfit to plead at the time he entered his pleas;(b) he was insane at the time he committed the offences and, accordingly,should have been acquitted on the grounds of insanity; and(c) if, after proper investigation Mr Fan had been found legally sane andfit to plead, there are still significant factors to support a dischargewithout conviction under s 106 of the Sentencing Act 2002.Discussion[30] I now turn to each of the grounds which Mr Walker submits demonstrate thata miscarriage of justice will occur if the conviction is not overturned.(a) Was Mr Fan legally insane at the time of the offending?[31] In order to be acquitted on the grounds of insanity Mr Fan carries the burdenon the balance of probabilities to satisfy the Court that at the time of the offending hehad a disease of the mind to such an extent that he did not understand the act wasmorally wrong having regard to the commonly accepted standards of right andwrong.17[32] It is uncontroversial that an evolving diagnosis of schizophrenia or "schizo-affective disorder of the bipolar sub-type" meets the statutory definition of disease of17 Crimes Act 1961, s 23(2)(b).the mind. It also appears that there is no contest between the parties that at the time ofthe index offending Mr Fan was suffering from this form of mental illness.[33] As noted, since at least 2012, Mr Fan has suffered from schizophrenia and hasbeen the subject of numerous inpatient admissions to psychiatric units. Notably, hislast admission was shortly after his arrest on the second lot of offences, committed inDecember 2018.[34] Furthermore, there is no serious contradiction to his consistent account that atthe time of this offending he believed that he was the main character and somethingof a celebrity in a social experiment similar to The Truman Show.[35] While I accept Ms McKenzie's observation that his prosaic explanation that hehad no money to pay for the petrol appears somewhat inconsistent with The TrumanShow narrative, this needs to be balanced against his apparently bizarre suggestion,when challenged about not paying for the massage, to "Charge it to my daughter".18[36] It is also plain that at the time of his arrest the Police were concerned aboutsome of Mr Fan's explanations which led to a request that he be professionallyexamined. In particular, his request to the Police that he be shown the "list of folk tokill" supports the inference that at the time of the offending he was labouring under adisease of the mind. The Police were obviously alarmed enough to request that Mr Fanbe professionally examined. A very brief clinical assessment report from3 August 2018 states that he did not display any symptoms of a mental disorder, butthat is at odds with the fact Mr Fan also spoke to the assessor about "a list of folk tokill".[37] This is also consistent with Dr Cavney's conclusions. In respect of the indexoffending, he reported to Dr Cavney that he did not believe he had committed anyoffence. The service station attendants should have known who he was and weredeliberately being obstructive in insisting that he pay and were provoking him to "tryand cause a scene to get more advertising for their businesses" through thelivestreaming of movie.18 Dr Cavney records Mr Fan has no children.[38] For these reasons I am easily satisfied that at the relevant time Mr Fan waslabouring under a disease of the mind.[39] The next question is whether, at the relevant time, he did not believe his actswere morally wrong.[40] To a considerable extent the evidence on this point has already been discussed.Given Mr Fan's distorted reality and psychotic delusions at the time, Dr Cavneyconcluded that although Mr Fan was cognisant of what he was doing, that is obtainingpetrol and massage services without paying for them, he believed he was justified inthis conduct. This was rationalised in his mind through his psychotic delusions that hewas the centrepiece of a social experiment and that his expenses were beingreimbursed. Dr Cavney's opinion is that these considerations would have stronglysupport a defence of not guilty by reason of insanity. I agree.[41] I also regard it as highly relevant to this issue that Judge Collins acquittedMr Fan on the grounds of insanity for offending committed just a few months later. Ihave not seen a copy of the Judge's decision, but I have viewed a psychiatric reportfrom Dr Cavney that was obtained on 4 June 2019. That set of offending includedgoing to a restaurant and ordering the most expensive dishes on the belief that theywould be paid for by Bill Gates. Dr Cavney concluded that he did not know he wasstealing. He stated to Dr Cavney that this was similar to past experiences where hebelieved he was on The Truman Show.[42] Finally, I record the responsible approach adopted by the Crown.Ms McKenzie submitted that if the point was reached where the information satisfiedthe Court there was a realistic prospect of Mr Fan successfully defending the chargeson the basis of insanity his guilty pleas and subsequent convictions represent amiscarriage of justice and the appeal should be allowed.[43] Thus there is a sufficient principled, evidence-based foundation to support theconclusion Mr Fan was insane at the time of the index offending. I am satisfied amiscarriage of justice occurred and the appeal should be allowed on this ground alone.[44] However, for completeness I turn to consider the other grounds of appeal reliedon by Mr Walker.(b) Was Mr Fan fit to plead?[45] The statutory test is set out in the Criminal Procedure (Mentally ImpairedPersons) Act 2003 ("the CP (MIP) Act"). Unfit to stand trial is defined at s 4 as:"(a) means a defendant who is unable, due to mental impairment, toconduct a defence or to instruct counsel to do so; and(b) includes a defendant who, due to mental impairment, is unable—(i) to plead;(ii) to adequately understand the nature or purpose or possibleconsequences of the proceedings;(iii) to communicate adequately with counsel for the purposes ofconducting a defence."[46] Section 7 of the CP (MIP) Act explains when a finding of unfitness may bemade, that is at any stage from the commencement of the proceedings until all theevidence is concluded. It follows that the procedures under the CP (MIP) Act cannotbe invoked after a plea of guilty.19 However, that is not an impediment to assessingwhether there has been a miscarriage of justice.[47] Plainly Mr Fan was suffering from a mental impairment. Much of the factualfoundation for that conclusion has already been discussed.[48] It was not immediately apparent to the duty solicitors who dealt with Mr Fanbut the reasons for that have been noted.[49] It seems, however, that there were warning signs. One example was picked upby the sentencing Judge who, in expressing his puzzlement, observed:20"What does not sit easily with me is the fact that you knew that you werefacing sentence on these charges and a short time before them you go andcommit what can only be an offence of almost non-necessary obtaining by19 Cumming v R [2008] NZSC 39; [2010] 2 NZLR 433 at [13].20 At [5].deception. It is not as if you needed this service or anything else that wasprovided; you just went and did it for your own gratification. "[50] There are also Mr Fan's bizarre post-arrest comments to the Police.[51] Of course, these features do not necessarily mean that Mr Fan was unfit toplead but they do give cause for concern in that regard.[52] I agree with Dr Cavney that in addition to this information, had the Court beenalerted to Mr Fan's mental history it would typically have resulted in a formalpsychiatric assessment. Dr Cavney also made the point that Mr Fan did not make hishistory known to counsel. This, he opines, indicates Mr Fan's lack of insight into thefact he was unwell. This has been a recurrent feature of his acute relapses. And so, Ifind myself in agreement with Dr Cavney when he concluded that when considered incombination, these points suggest that Mr Fan was, at the least, unable to communicateadequately with counsel for the purpose of conducting a defence or to make his versionof events known to the Court and to counsel.21[53] That meets the definition of unfit to stand trial.[54] For that reason, I am also satisfied that if this appeal was not allowed amiscarriage of justice would occur.(c) Would Mr Fan's mental issues have led to a discharge?[55] Mr Walker submitted that even if Mr Fan had been found fit to stand trial andnot insane at the time he offended, his mental health issues were clearly mitigated bothin terms of the gravity of the offending and the consequences of conviction.Mr Walker noted the requirement for sentencing Courts to give significant credit onaccount of health issues.22 He thus submitted that the consequence of the convictionson Mr Fan's employment and further aggravation of his mental health would be suchthat the Court would have been likely to grant a discharge without conviction.21 P v Police [2007] 2 NZLR 528 at [43].22 Sentencing Act 2002, ss 9(2)(e) and 9(4)(a); Carruthers v Police [2018] NZHC 187 at [20] citingShailer v R [2017] NZCA 38 at [45]-[48]; Krishna v Police [2014] NZHC 3337 at [39].[56] While the offending itself was relatively minor and explicable (absent a findingof insanity or unfitness) I cannot accept that it was probable Mr Fan would have beendischarged under s 106. Nor do I accept that the consequences of a conviction forMr Fan would be out of all proportion to the gravity of the offending. The groundsadvanced by Mr Walker are insufficient to meet the required threshold in my view.First, Mr Fan is not employed and there is no evidence before me to indicate that heintends to return to the workforce. Secondly, there is no evidence to support theproposition that these convictions would exacerbate his mental health.[57] For these reasons I am not satisfied that this ground is made out.[58] However, by reason of my earlier findings, I am nonetheless satisfied that theappeal should be allowed.Result[59] Leave to extend the time for filing the notice of appeal is granted.[60] Dr Cavney's psychiatric report of 21 June 2020 is admitted as evidence on theappeal.[61] The appeal is allowed.[62] The convictions are quashed and no order for a re-trial is made.Moore JSolicitors:Mr Walker, AucklandCrown Solicitor, Invercargill