TEGG v NEW ZEALAND POLICE [2022] NZHC 1097

TEGG v NEW ZEALAND POLICE [2022] NZHC 1097 [18 May 2022]IN THE HIGH COURT OF NEW ZEALANDNAPIER REGISTRYI TE KŌTI MATUA O AOTEAROAAHURIRI ROHECRI-2021-441-33CRI-2021-441-34CRI-2021-441-35[2022] NZHC 1097BETWEEN CHRISTOPHER PAUL TEGGAppellantAND NEW ZEALAND POLICERespondentOn the papersCounsel: E J Forster for AppellantC R Stuart for RespondentJudgment: 18 May 2022JUDGMENT OF SIMON FRANCE J[1] Mr Tegg pleaded guilty to offending committed in December 2017 andFebruary 2018. Convictions were entered. Mr Tegg now seeks to appeal out of timeon the basis of fresh evidence, namely expert evidence that he likely had a defence ofinsanity available to the charges.[2] The 2017 event involved charges of (1) assault, (2) possession of an offensiveweapon, and (3) threatening behaviour. Mr Tegg was resident at the time in a mentalhealth unit, but left the premises. He visited a shop where he acted irrationally,threatening a staff member with spray bottles which he ultimately used on himself.[3] The 2018 event involved (4) wilful damage. Mr Tegg returned home havingbeen drinking, got into an argument with the other occupant, and started damaging theproperty. The description reads effectively as a temper tantrum involving kickingdoors and other items, knocking items off a bench and other similar conduct. Therewas also at the time a (5) wilful trespass charge where he went into a shop from whichhe had been previously trespassed. He said he could not remember going there.[4] Mr Tegg was recently charged with possession of a knife. The matter did notproceed as an expert report indicated Mr Tegg likely had an insanity defence. Thisprompted current counsel to seek advice on Mr Tegg's likely condition at the time ofthe earlier events. Dr Barry-Walsh has advised that in his opinion it is likely Mr Tegghad a similar defence to those charges. He is less sure concerning the 2018 event dueto less information being available, but considers it likely Mr Tegg was relevantlypsychotic at the time.[5] The appeal faces three hurdles:(a) it is out of time;(b) it is a conviction appeal where the defendant pleaded guilty; and(c) it relies on fresh evidence.[6] I am satisfied each hurdle is overcome by the present circumstances. It is clearthat there was no consideration at the time to this defence, and the appeal has beenfiled as soon as a basis for it emerged. The fresh evidence is from a completely reliablesource and its cogency causes freshness to become a background matter. Further, itcan be noted Mr Tegg was resident at a mental health facility at the time of theDecember event and generally there is an apparent irrationality to the conduct whichis consistent with the expert assessment. Convictions should not stand where there isthe real likelihood the defendant was suffering from mental impairment in the wayidentified by Dr Barry-Walsh. Mr Tegg's pleas were given in circumstances where hewas not advised of a defence and should be set aside.[7] The appeal is allowed and the convictions previously identified as (1)–(5)are quashed.[8] There is disagreement as to disposition. Mr Forster urges there should be noretrial given the lack of seriousness of the charges. This is a relevant and sometimesdeterminative factor on an appeal, but not one I consider applicable here.[9] First, there is a statutory process concerning "agreed" insanity verdicts whichthe prosecution may wish to use. There are potentially public protection issues givenfurther alleged offending has recently arisen. That is not a direction from the Court asto what should happen. Rather it is an explanation why the prosecution should begiven an opportunity to assess matters.[10] Second, there is presently the one opinion on those earlier charges, albeit thereare two relevant assessments about Mr Tegg when all matters including the recentdiscontinued charge are considered. (A different psychiatrist assessed Mr Tegg inrelation to the recent allegations.) While the one opinion is sufficient to require theCourt to allow the appeal, there is scope for the prosecution to seek a further opinionif it chooses.[11] Leave to appeal out of time is granted. The evidence of Dr Barry-Walsh isadmitted on the appeal.[12] The appeal is allowed, the convictions quashed, and a retrial ordered. Whetherthat occurs is a matter for the prosecution._____________________Simon France JSolicitors:Crown Solicitor, Napier for Respondent