MAANGI v R [2017] NZCA 156

MAANGI v R [2017] NZCA 156 [3 May 2017]ORDER PROHIBITING PUBLICATION OF THE JUDGMENT AND ANYPART OF THE PROCEEDINGS (INCLUDING THE RESULT) IN NEWSMEDIA OR ON THE INTERNET OR OTHER PUBLICLY AVAILABLEDATABASE UNTIL FINAL DISPOSITION OF TRIAL. PUBLICATION INLAW REPORT OR LAW DIGEST PERMITTED.IN THE COURT OF APPEAL OF NEW ZEALANDCA635/2016[2017] NZCA 156BETWEEN ESTHER RAWINA TE HIREREMAANGIApplicantAND THE QUEENRespondentHearing: 4 April 2017Court: Randerson, Clifford and Whata JJCounsel: D H P Schellenberg for ApplicantC A Brook for RespondentJudgment: 3 May 2017 at 10.30amJUDGMENT OF THE COURTA The application for an extension of time to file the application for leave toappeal is granted.B The application for leave to appeal is granted.C The approved questions of law are:Whether, in the circumstances of the case:(i) The Judge had power to grant leave to the prosecutor towithdraw the charges or was the Judge obliged to dismiss thecharges for insufficiency of evidence of the applicant'sinvolvement for s 9 purposes?(ii) Alternatively, was the Judge obliged to determine the s 9 issueon the materials before him?D Order prohibiting publication of the judgment and any part of theproceedings (including the result) in news media or on the internet or otherpublicly available database until final disposition of trial. Publication inlaw report or law digest permitted.____________________________________________________________________REASONS OF THE COURT(Given by Clifford J)Introduction[1] On 14 September 2015, during a hearing in the District Court at North Shoreunder s 9 of the Criminal Procedure (Mentally Impaired Persons) Act 2003 (theCPMIP), Judge Couch granted the police leave to withdraw a number of charges thathad been laid against Esther Rawina Te Hirere Maangi.1 Ms Maangi was subsequentlyfound fit to stand trial, and those charges were re-laid.[2] Ms Maangi now applies for an extension of time to file the application for leaveto appeal and, if that extension is granted, for leave to appeal Judge Couch's rulinggranting the police leave to withdraw those charges.[3] The Crown opposes the grant of leave, saying there is no jurisdiction under theCriminal Procedure Act 2011 for such an appeal. If, however, we decide to grant leave,the Crown does not oppose an extension of time to allow that appeal to be filed.Background[4] Whilst this decision deals only with the questions of an extension of time andof leave, the factual and procedural background provides relevant context for our1 Police v Maangi [2015] NZDC 18423.decision and is more than a little complicated. We therefore refer to it in more detailthan might otherwise be the case in a leave decision.2[5] In 2015 Ms Maangi faced a number of charges. The following tablesummarises the detail of the 12 charges that, by early July, were involved:Date of Offending Date of Charge Charge OriginalCRN No26 March 2015 28 March 2015 Driving whilst forbidden 1493Dangerous driving 14945 April 2015 10 April 2015 Receiving 1631Possessing cannabis 1632Driving whilst forbidden 163310 April 2015 Breach of bail 191623 April 2015 2 July 2015 Burglary (1 Violet) 3281Conversion (Toyota) 3282Burglary (110 Ocean View) 3283Burglary (1/108 Ocean View) 3284Conversion (Mazda) 3285Burglary (21A Tiri Tiri) 3286[6] Questions of mental impairment and fitness to stand trial were raised. Aninitial assessment report (prepared pursuant to s 38(1) of the CPMIP) concluded thatMs Maangi was suffering from a psychotic illness and was not fit to stand trial. Ahearing under s 9 of the CPMIP was set down, to ascertain whether the evidenceagainst Ms Maangi was sufficient to establish that she had caused the acts or omissionswhich formed the basis of the offences with which she was charged.[7] That hearing took place before Judge Couch on 14 and 15 September 2015. Itwould appear that, from the outset, it was anticipated the hearing would be conducted2 We base this narrative on the transcript of that hearing, together with a minute dated 15 September2015, the ruling (Police v Maangi [2015] NZDC 18423), and an oral judgment (Police v Maangi[2015] NZDC 18433) issued by the Judge in which he formalised the rulings and decisionsrecorded in that transcript.largely on the basis of written statements of fact and admissions by Ms Maangi.3There was to be relatively limited cross-examination of one police witness. Variousissues were raised by counsel when the hearing began on 14 September. Theseincluded an application for adjournment by the police and a challenge as toadmissibility of Ms Maangi's admissions. The matter was stood down on severaloccasions.[8] Relatively late on 14 September, the Judge went through the written evidentialmaterial with counsel. During that process, the Judge noted gaps in the evidence. TheJudge was, however, unable to come to a final view on the question of evidentialsufficiency. He remanded Ms Maangi in custody and told counsel he would furtherconsider the evidential material overnight.[9] The next morning, the Judge first declined the police's application for anadjournment. He then turned to the evidence and explained to counsel what he termedthe "preliminary views" he had reached overnight. He indicated he found three of thecharges proved to the required standard,4 but described the evidence regarding the restas ranging from "very little" to "no evidence at all". The Judge also noted that, forsome of the charges, the police relied on admissions from Ms Maangi — theadmissibility of which her counsel had indicated was to be challenged based on theuncertainty as to her mental state at the time.[10] The Judge then observed:At this stage I would be prepared to give the police leave to withdraw anycharges they may wish to withdraw. That would then leave it open to thepolice to re-lay those charges if better evidence was obtained.[11] The Judge stood the matter down for the police to consider their position.[12] When the hearing reconvened, the police sought leave to withdraw six of thecharges.5 Ms Maangi's counsel (Mr Schellenberg) objected. He said the s 9 hearinghad concluded the previous day and the Judge was required to reach his decision on3 We were provided with copies of those materials by the Crown following the hearing. As mattershave transpired, it is not necessary to refer to them further.4 CRNs 1631, 1632 and 1633.5 CRNs 1493, 1494, 3281, 3282, 3283 and 3286.the evidence before him. The Judge did not accept that submission. He confirmed hehad only made a preliminary assessment and had only expressed "preliminaryreservations" — he had not "had the benefit of submissions from the parties".[13] The police then formally applied for leave to withdraw those six charges, whichthe Judge granted.[14] The Judge then proceeded to hear submissions on the remaining charges. Atthe end of the hearing the Judge found that the evidence was sufficient to establishMs Maangi had caused the acts or omissions which formed the basis of four of thosecharges (CRNs 1631, 1632, 1633 and 3285), but not those relevant to CRNs 1916 and3284.[15] Ms Maangi was subsequently found fit to stand trial.6 The six charges thatwere withdrawn with leave were subsequently re-laid. Ms Maangi now faces trial onthose charges, and on the four on which the Judge found evidential sufficiency in thes 9 hearing of September 2015.A preliminary matter[16] Ms Maangi initially appealed Judge Couch's grant of leave to the police towithdraw the six charges, and his subsequent finding that the evidence was sufficientto establish Ms Maangi's involvement in the acts or omissions relating to one of thefour charges (CRN 3285). Those appeals were heard by Duffy J and judgmentsissued.7 In preparing for the hearing of this application, which as filed was anapplication for leave to bring a second appeal, it became apparent that Ms Maangi hadelected trial by jury on 29 April 2015 on the charges she then faced in the DistrictCourt. Accordingly, pursuant to ss 320 and 321 of the Criminal Procedure Act, anyappeal against Judge Couch's s 9 rulings and decisions lies in this Court. Thejudgments in the High Court were therefore a nullity. On that basis, and with theagreement of both the Crown and Ms Maangi, this matter was treated as an application6 Police v Maangi [2016] NZDC 2612.7 Maangi v Police [2016] NZHC 1930 and Maangi v Police [2016] NZHC 2571. The Judge grantedMs Maangi leave to appeal the Judge's grant of leave to the police to withdraw the six charges,but dismissed that appeal for want of jurisdiction. The Judge also dismissed the appeal againstthe finding of evidential sufficiency as regards CRN 3285.for an extension of time to file the application for leave to appeal and an applicationfor leave to appeal Judge Couch's grant of leave to the police to withdraw the sixcharges. Ms Maangi did not apply for leave to appeal the Judge's decision ofevidential sufficiency as regards CRN 3285.Application for leave to appeal[17] Mr Schellenberg argued that a Judge in a s 9 hearing is required to reach a finalview "whether the court is satisfied of the matter specified in s 9".8 If the Court is notso satisfied, then "the court must dismiss the charge against the defendant under s 147of the Criminal Procedure Act 2011".9 Accordingly, the question of law at issue heredid arise in proceedings that related to the determination of the charge.[18] The Crown opposes the granting of leave on the basis that there is nojurisdiction under either of s 296(3)(a) or (b) of the Criminal Procedure Act to appealJudge Couch's grant of leave to the police to withdraw. Such a grant of leave at thes 9 hearing does not relate to or follow the determination of a charge, and does nototherwise arise in the determination of that charge. A grant of leave to withdraw acharge is, as the Judge found, a common procedural step in criminal proceedingsunrelated to the determination of the charge in question. That is demonstrated by thefact a charge may be re-laid after it has been withdrawn.Analysis[19] Section 296 of the Criminal Procedure Act provides:296 Right of appeal(1) This section applies if a person has been charged with an offence.(2) The prosecutor or the defendant may, with the leave of the first appealcourt, appeal under this subpart to that court on a question of lawagainst a ruling by the trial court.(3) The question of law in a first appeal under this subpart must arise—(a) in proceedings that relate to or follow the determination of thecharge; or8 See Criminal Procedure (Mentally Impaired Persons) Act 2003, s 10(2).9 See Criminal Procedure (Mentally Impaired Persons) Act 2003, s 13(2).(b) in the determination of the charge (including, withoutlimitation, a conviction, an acquittal, the dismissal of thecharge under section 147, or a stay of prosecution).(4) The question of law must not be one that—(a) arises from a jury verdict; or(b) arose before the trial and has already been decided undersubpart 2.[20] The issue here is whether the requirements of subs (3) are met.[21] A s 9 hearing is a necessary precursor to a finding that a defendant is unfit tostand trial. Where, as here, that question arises before trial s 10 of the CPMIPprovides:(2) The court must ascertain whether the court is satisfied of the matterspecified in section 9.(3) For the purposes of subsection (2), the court may consider—(a) any formal statements that have been filed under section 85of the Criminal Procedure Act 2011:(b) any oral evidence that has been taken in accordance with anorder made under section 92 of the Criminal Procedure Act2011:(c) any other evidence that is submitted by the prosecutor ordefendant.[22] Sections 11 and 12 of the CPMIP provide for inquiry into the s 9 matter duringa Judge-alone and a jury trial respectively. Both include the ability to hear newevidence.10[23] Pursuant to s 13 of the CPMIP, a s 9 inquiry may have two outcomes:(a) If the Court is satisfied of the s 9 matter, it must record that finding.10 Criminal Procedure (Mentally Impaired Persons) Act 2003, ss 11(3)(b) and 12(3)(d).(b) Alternatively if the Court is not satisfied of the matter specified in s 9,the Court must dismiss the charge against the defendant under s 147 ofthe Criminal Procedure Act.[24] Section 147(6) of the Criminal Procedure Act provides:If a charge is dismissed under this section the defendant is deemed to beacquitted on that charge.[25] In Anderson v R the test under s 296(3) of the Criminal Procedure Act was heldto be whether there was a sufficiently close connection between the proceedings inwhich the question of law arose and the determination of the charge.11[26] Here, Ms Maangi's argument is that the Judge:(a) had no power to grant leave to the prosecutor to withdraw the chargesand was obliged to dismiss them for insufficient evidence; or(b) was obliged to determine the s 9 matter on the material before him.[27] Those questions of law arise in the context of the s 9 hearing. Where, followingsuch a hearing, the Court is not satisfied of the matter specified in s 9, the Court mustdismiss the charge. Such a dismissal is deemed to be an acquittal. In our view,therefore, those questions of law are sufficiently closely connected to thedetermination of the charge to satisfy the jurisdictional requirement of s 296(3) of theCriminal Procedure Act.[28] Moreover, in the context of the scheme of the CPMIP relating to s 9 hearings,those questions are arguable questions of law and ones that are of public importance.Result[29] We therefore grant Ms Maangi an extension of time to allow her applicationfor leave to appeal to be filed. We also grant Ms Maangi leave to appeal.11 Anderson v R [2015] NZCA 518, [2016] 2 NZLR 321.[30] We do so by reference to the following questions of law:Whether, in the circumstances of the case:(i) The Judge had power to grant leave to the prosecutor towithdraw the charges or was the Judge obliged to dismiss thecharges for insufficiency of evidence of Ms Maangi'sinvolvement for s 9 purposes?(ii) Alternatively, was the Judge obliged to determine the s 9 issueon the materials before him?[31] For fair trial reasons, an order is made prohibiting publication of the judgmentand any part of the proceedings (including the result) in news media or on the internetor other publicly available database until final disposition of trial. Publication in lawreport or law digest permitted.Solicitors:Crown Law Office, Wellington for Respondent