GILL v R [2020] NZCA 214

GILL v R [2020] NZCA 214 [4 June 2020]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA426/2019[2020] NZCA 214BETWEEN JAMIE MICHAEL GILLAppellantAND THE QUEENRespondentCourt: Brown, Gilbert and Dobson JJCounsel: T W Luders for AppellantP D Marshall and J M Irwin for RespondentJudgment:(On the papers)4 June 2020 at 4 pmJUDGMENT OF THE COURTA The appeal against conviction is dismissed.B The appeal against sentence is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Gilbert J)Introduction[1] Following a trial by jury in the District Court at Wellington, Mr Gill was foundguilty of escaping police custody and resisting arrest. The circumstances were that atabout 11.30 am on 24 August 2018, police were informed that Mr Gill had arrangedto pick up a prescription at a pharmacy in Upper Hutt. The police had an outstandingwarrant for Mr Gill's arrest for another matter. Four officers went to the pharmacywith the arrest warrant. One of the officers approached Mr Gill and told him he wasunder arrest. Mr Gill turned and ran. The officers caught up with him in a nearbyunderground car park and arrested him with the assistance of a police dog.[2] Mr Gill was sentenced by Judge Barry to four months' imprisonment.1The Judge imposed three special release conditions to apply for six months fromthe sentence expiry date:2(a) to attend an assessment for alcohol and drug issues, if and as directedby a probation officer;(b) to attend and complete any counselling, treatment or programmedirected by and to the satisfaction of a probation officer; and(c) to complete any other treatment programme or counselling as directedby a probation officer.[3] Mr Gill appeals against conviction and sentence.[4] The sole ground of the conviction appeal is that expert evidence Mr Gill wishedto adduce at trial was wrongly excluded. Mr Gill, who was nearly 28 years of age atthe time of the offending, suffers from Attention Deficit Hyperactivity Disorder(ADHD). When the incident occurred, he had been without medication for thiscondition for some time. He was at the pharmacy to pick up a new prescription.[5] Mr Gill wished to call evidence from Dr Rosemary Edwards, a forensicpsychiatrist who has particular expertise in the assessment and treatment of adults withADHD. The purpose of the evidence was to inform the jury about ADHD in generalterms and provide them with a brief overview of Mr Gill's history of ADHD based onhis medical records. Mr Gill says this evidence would have been substantially helpfulto the jury, in terms of s 25 of the Evidence Act 2006, in assessing his evidence thathe ran from police "as an impulsive response rather than due to an appreciation that1 R v Gill [2019] NZDC 15058.2 At [6].he was being arrested". However, this evidence was ruled inadmissible by JudgeButler in a pre-trial ruling given on 16 July 2019.3[6] Mr Gill does not challenge his sentence of imprisonment, which he has longsince served. His sole complaint concerns the special release conditions. He arguesthese were not justified.Conviction appeal[7] In her brief of evidence, Dr Edwards describes in general terms how personssuffering from ADHD can be affected. She explains that ADHD is an executivefunction disorder resulting in impulsiveness, impaired attention and drug usesusceptibility. However, Dr Edwards notes that ADHD varies between individuals inintensity and specific symptoms. She observes that the condition can be controlled invarious ways but is more difficult to manage when a person is fatigued or under stress.Sufferers can develop additional mental health disorders, commonly anxiety anddepression, but also substance abuse. Dr Edwards says it is common for those withADHD to have difficulty listening to, absorbing and understanding all that is said tothem. They will often pick up on a few words but not everything that is said.[8] Mr Gill was not a patient of Dr Edwards and she has never met or examinedhim. However, she reviewed his medical records and gave a brief summary of these.The records show that Mr Gill was first diagnosed with ADHD when he wasapproximately 12 years old. It appears that Mr Gill responded well to prescribedmedication but there was a history of him taking his medication intermittently. Mr Gillwas also said to have had issues with substance abuse and had been referred toresidential rehabilitation services in the past. The most current information on hismedical file was contained in a letter from Dr Tracey Heads, a consultant forensicpsychiatrist who was then treating him, and sent to an unknown doctor inDecember 2016. This was nearly two years before the events the subject of thisappeal. Dr Heads concludes her letter as follows:3 R v Gill DC Wellington CRI-2018-096-2790, 16 July 2019 (Pre-trial ruling).Over the past year [Mr Gill] has presented as very stable and I do not considerhe requires a referral to community Mental Health Services I do howeverrecommend he continue on stimulant medication (Ritalin SR 20mg tds ). [9] Judge Butler did not consider this evidence would be substantially helpful tothe jury in determining Mr Gill's guilt. However, the Judge considered theinformation could be relevant to sentence if Mr Gill was found guilty.4[10] Six witnesses gave evidence at the trial — the four police officers, Mr Gill andMr Gill's partner. All but Mr Gill said they clearly heard Constable Taylor informMr Gill that he was under arrest. There was no dispute that Mr Gill immediatelyturned away from Constable Taylor and ran.[11] The defence case on the charge of escaping police custody was that Mr Gilldid not hear Constable Taylor advise him he was under arrest before he turned and ran.This was said to be because of a combination of circumstances, including mild, mixedhearing loss in one ear and his inability to pay attention due to his ADHD. Mr Luders,counsel for Mr Gill, summarised the defence in his closing address in these terms:The defence say you can be sure [Mr Gill] did not hear Constable Taylor forseveral reasons. You heard that [Mr Gill] has mild, mixed hearing loss.Constable Taylor was running at him from the carpark at the other end ofthe street. The constable yelled out at him at the fence line, a considerabledistance from the pharmacy where [Mr Gill] was standing by his car. It wasthe middle of the day in a retail area. Cars on the road. It is accepted therewas not much in terms of foot traffic at the time. [Mr Gill] was not facingthe constable when the constable yelled out at him. He was by the passengerside of the vehicle. His right ear, the ear with mild, mixed hearing loss, facingtowards the constable. He was not focused on him. He had no reason to belistening intently to his surroundings. His hearing is impaired and his abilityto pay attention and focus to sudden occurrences in his surroundings isdiminished by his attention deficit disorder.[12] As to why Mr Gill ran from the police, counsel explained that this was becauseof Mr Gill's fear of the police from an incident that occurred 14 years earlier.His ADHD was said to be a contributing factor:He ran because he was fearful of police. He told you of previous experiencewith police, and one in particular, at the impressionable age of 14 he was, ashe said, pepper sprayed and got a hiding. These experiences have left aprofound impact on Mr Gill and on this occasion he ran out of fear. He wasafraid he would be hurt and given what unfolded, you could hardly blame him.4 At [7].Do not forget that he suffers from ADHD. It is a diagnosis characterised by apattern of inattention and hyperactivity.I suggest to you, him running is another example of an impulse reaction tosudden circumstances that my client did not fully understand. His evidencehas been entirely consistent with the explanation he gave to police when hewas spoken to after being read his Bill of Rights where he said, "I'm sorryI ran bro, I was scared. There were all of you. I shouldn't have done it butI did. I haven't had my medication."[13] Counsel did not suggest Mr Gill's ADHD condition was relevant to the secondcharge of resisting arrest. The defence case was that Mr Gill did not resist, rather anydifficulty experienced by the police resulted from their lack of coordination.Counsel closed on the following basis:I suggest to you that the officers were not consistent about how [Mr Gill]reacted because they were not coordinated when they apprehended him.What they perceived as resistance is instead consistent with the officers beinguncoordinated. They were at different ends of the same stick, pulling one waywhile the other pulls from the other.[14] The defence case was that any subsequent resistance was simply misinterpreted— Mr Gill was not resisting but rather he was writhing in pain, having been bitten bythe police dog.[15] We do not consider Dr Edwards' evidence would have been substantiallyhelpful in understanding other evidence in the proceeding or in ascertaining any factof consequence to the determination of the proceeding.5 We do not see how it couldassist the jury to understand Mr Gill's evidence, all of which was perfectly clear andcoherent. There was no need to correct any erroneous beliefs the jury might hold inassessing his evidence which may have led to illegitimate reasoning. The trial issueto which the evidence is said to be relevant was whether Mr Gill heard and understoodConstable Taylor's statement — "[y]ou are under arrest". Dr Edwards does notsuggest that Mr Gill, or anyone else with ADHD, might not be able to understand thisshort, simple message, assuming they heard it clearly. The high point of Dr Edwards'evidence on this is her statement that:[s]ome people with ADHD have difficulty concentrating on a conversationimpacting negatively on their social relationships, are unable to sit through5 Evidence Act 2006, s 25(1).a movie, or complete university assignments despite having the naturalintelligence to be able to.It is also common for someone with ADHD to have difficulty listening to,absorbing and understanding, all of what is being said to them and they willoften pick up on a few words but not the whole of what is being said or asked.This often leads to people misunderstanding what is being said to or asked ofthem.[16] In any event, having never met Mr Gill, Dr Edwards would have been unableto assist the jury on his condition at the time of the offending. The best she could dowas to quote from medical records prepared by others, the most recent of which waswritten nearly two years before the events occurred. Given Dr Edwards' evidence thatADHD varies in intensity and symptoms between individuals, this significantlydiminishes any value the evidence might otherwise have had.[17] In summary, we do not consider Dr Edwards' evidence would have beensubstantially helpful to the jury. Accordingly, we agree with Judge Butler that it wasnot admissible. This being the sole ground of appeal, the appeal against convictionmust accordingly be dismissed.Sentence appeal[18] After the jury delivered their verdicts, Mr Gill was remanded for sentencethe following week. A pre-sentence report addressing appropriate release conditionswas ordered. No such report was available at sentencing. Accordingly, Judge Barryrequested a probation officer to attend court to make a recommendation aboutappropriate release conditions. The special conditions quoted at [2] above were thoserecommended. They were designed to address Mr Gill's needs, having regard to hisADHD, history of substance abuse and prior offending. Before making the order,the Judge gave Mr Luders an opportunity to comment. He responded: I can see Mr Gill shaking his head a bit over that, but I would accept myselfthat would be appropriate release conditions.[19] In terms of s 93(3) of the Sentencing Act 2002, a special release condition mustnot be imposed unless it is designed to reduce the risk of re-offending, facilitate orpromote rehabilitation and reintegration, or provide for the reasonable concerns ofvictims. Mr Gill submits there was insufficient information before the Court to justifythe conclusion that special conditions, particularly the condition to attend a drug andalcohol assessment, programme and treatment, would reduce his risk of re-offendingor promote his rehabilitation.[20] We disagree. Judge Barry had available Mr Gill's lengthy criminal history,which includes family violence and low-level drug offending. Dr Edwards' report,which Judge Butler considered could be relevant for sentencing purposes, was also onthe file available to Judge Barry at sentencing. As we have noted, this referred toMr Gill's issues with substance abuse. It seems to us it was entirely appropriate forJudge Barry to include a post-release condition requiring Mr Gill to attend anassessment for alcohol and drug issues if so directed by a probation officer. The otherconditions were also appropriately directed to address Mr Gill's risk of re-offendingand his rehabilitation.[21] It follows that Mr Gill's appeal against sentence must be dismissed.Result[22] The appeal against conviction is dismissed.[23] The appeal against sentence is dismissed.Solicitors:Public Defence Service, Wellington for AppellantCrown Law Office, Wellington for Respondent