AKUHATA v R [2020] NZCA 19

AKUHATA v R [2020] NZCA 19 [20 February 2020]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA466/2017[2020] NZCA 19BETWEEN JIMMY PETER AKUHATAAppellantAND THE QUEENRespondentHearing: 12 November 2019Court: Wild, Whata and Katz JJCounsel: A J Ellis and B J R Keith for AppellantK S Grau and J M Irwin for RespondentJudgment: 20 February 2020 at 3.00 pmJUDGMENT OF THE COURTA The application for an extension of time to appeal against conviction isgranted.B The appeal against conviction is dismissed.C The application for an extension of time to appeal against sentence isrefused.____________________________________________________________________REASONS OF THE COURT(Given by Wild J)Para NoWild and Katz JJ [1]Whata J [159]Table of contentsPara NoIntroduction [1]Court's approach to this appeal [5]The Criminal Procedure (Mentally Impaired Persons) Act 2003(CP (MIP) Act) [8]Background [10]The grounds of appeal [24]A: Ground 2: The s 9 CP (MIP) Act hearing was unfair and thedecision lacked reasons [25]Actus Reus [31]Time of death [34]No robust defence [39]Mr Akuhata unfit for the s 9 hearing [44]No reasoning [46]B: Ground 4: No neuropsychologist or radiology report on braindamage, or psychologist/psychiatrist's report as to appellant's stateof mind when making "admissions" [48]C: Ground 6: Detention at the Mason Clinic arbitrary, unlawfuland a breach of ss 9, 22 and 23(5) of the New Zealand Bill ofRights Act 1990 (NZBORA) [54]Detention in Mason Clinic unlawful and/or arbitrary? [64]Not treated with humanity? [67]Periods of detention unlawfully long? [71]Dr Pillai's assessments and report unlawful? [72]Error on Ms Cull's part? [73]D: Ground 4: (sic) No right to counsel, to silence, or to refuse medication [75]Rights to silence, to legal advice, and to refuse medication breached? [76]Mrs Visser and Drs Goodwin and Pillai not independent of each other? [84]E: Ground 5: The s 14 CP (MIP) Act hearing was unfair [86]F: Ground 1: Mr Akuhata's guilty plea wrongly entered [98]Judicial error or impropriety? [100]Improper pressure from counsel and family? [104]Other errors on Ms Cull's part? [116]G: Ground 8: Totality [127]Conclusions on the appeal against conviction [128]Sentence appeal [141]WHATA J [159]Result [162]Introduction[1] This is a somewhat unusual appeal against both conviction and sentence.[2] After pleading guilty to a charge of murder, Mr Akuhata was sentenced,on 20 May 2015, to life imprisonment with a minimum non-parole period of 15 years.1[3] This appeal was filed on 17 August 2017 and is thus over two years out of time.However, the appeal against conviction is essentially a challenge to the procedureunder the Criminal Procedure (Mentally Impaired Persons) Act 2003 Mr Akuhatawent through before he was found fit to stand trial, and subsequently pleaded guilty.[4] Given the spectre of mental impairment, delays in obtaining further reports forthe appeal and Mr Ellis' absence for the first half of this year, and in the absence ofany real objection from the Crown, we extend time for the appeal against convictionand will consider it on its merits.Court's approach to this appeal[5] This Court's judgment in R v Le Page outlines the situations in which the Courtcan allow an appeal against conviction following a guilty plea.2 Fundamental is thatthe appellant must establish that a miscarriage of justice will result if his convictionstands. That is, the appellant must demonstrate that an error or errors affectedthe entering of the guilty plea, such that justice demands the setting aside ofthe conviction.[6] Counsel are agreed that Mr Akuhata seeks to establish that his guilty plea wasinduced by:(a) a ruling which embodied a wrong decision on a question of law; and/or(b) incorrect advice as to the non-availability of certain defences, oroutcomes, or counsel acting so wrongly or carelessly as to induce him1 R v Akuhata [2015] NZHC 1098.2 R v Le Page [2005] 2 NZLR 845 (CA) at [16]. See also R v Proctor [2007] NZCA 289 at [4].to plead guilty in the mistaken belief that no tenable defence could beadvanced.[7] The first situation is recognised in Le Page,3 the second in R v Merrilees.4Le Page, Merrilees, and this Court's subsequent decisions, including Richmond v Rand Hutchins v R, emphasise that this Court will only rarely allow an appeal againstconviction where the appellant pleaded guilty.5 A feature of this appeal is that we haveno evidence from Mr Akuhata: he has chosen not to make an affidavit in support ofhis appeal. Nevertheless the following passage from this Court's judgment inMerrilees, cited by the Crown, seems apt to this appeal:6It is often the case that an offender pleads guilty reluctantly, but neverthelessdoes so, for various reasons. They may include the securing of advantagesthrough withdrawal of other counts in an indictment, discounts on sentencing,or because a defence is seen to be futile. Later regret over the entering ofa guilty plea is not the test as to whether that plea can be impugned. If a pleaof guilty is made freely, after careful and proper advice from experiencedcounsel, where an offender knows what he or she is doing and of the likelyconsequences, and of the legal significance of the facts alleged by the Crown,later retraction will only be permitted in very rare circumstances.The Criminal Procedure (Mentally Impaired Persons) Act 2003 (CP (MIP) Act)[8] The CP (MIP) Act sets out the procedure to be followed where a defendantfaces a criminal charge(s), but there is a question as to his fitness to stand trial on thatcharge(s). As the Act, since amended, applied to Mr Akuhata in 2013–2014, it requiredthe Court to find that Mr Akuhata had committed the act or omission forming the basisof the offence with which he was charged with before making its finding as to whetherhe was unfit to stand trial.[9] The relevant sections were these:9 Court must be satisfied of defendant's involvement in offenceA court may not make a finding as to whether a defendant is unfit to stand trialunless the court is satisfied, on the balance of probabilities, that the evidenceagainst the defendant is sufficient to establish that the defendant caused the act3 At [19].4 R v Merrilees [2009] NZCA 59 at [34].5 Richmond v R [2016] NZCA 41; and Hutchins v R [2014] NZCA 485.6 R v Merrilees, above n 4, at [35].or omission that forms the basis of the offence with which the defendant ischarged.13 Outcome of consideration of defendant's involvement(1) When the court has ascertained, in accordance with any of sections 10to 12, whether the court is satisfied of the matter specified in section9, the court must record its finding on the matter.(2) If the court is not satisfied of the matter specified in section 9,the court must discharge the defendant.(3) A discharge under subsection (2) does not amount to an acquittal.(4) If the court is satisfied of the matter specified in section 9, the courtmust proceed to determine the matters specified in section 14.14 Determining if defendant unfit to stand trial(1) If the court records a finding of the kind specified in section 13(4),the court must receive the evidence of 2 health assessors as to whetherthe defendant is mentally impaired.(2) If the court is satisfied on the evidence given under subsection (1) thatthe defendant is mentally impaired, the court must record a finding tothat effect and—(a) give each party an opportunity to be heard and to presentevidence as to whether the defendant is unfit to stand trial;and(b) find whether or not the defendant is unfit to stand trial; and(c) record the finding made under paragraph (b).(3) The standard of proof required for a finding under subsection (2) isthe balance of probabilities.(4) If the court records a finding under subsection (2) that the defendantis fit to stand trial, the court must commence or continue the hearingor trial, or commit the defendant for trial, as the case may require.Background[10] We begin by outlining the events which led up to the hearing on 13 November2013, under s 9 of the CP (MIP) Act.[11] Mr Akuhata is a Māori man of Ngā Puhi descent. He and the victim,Ashlee Edwards, had been in an on-off relationship for about six years. When hemurdered Ms Edwards in July 2012, Mr Akuhata was 29 years old, Ashlee 21. Theirrelationship included violence: Mr Akuhata had three convictions for assaultingMs Edwards. On 5 February 2010, on the ground of physical abuse, Ms Edwardsobtained a protection order against Mr Akuhata, in respect both of herself and theirvery young child. After the couple had a second child, the protection order wasextended, on 24 May 2012, to include this child.[12] On the night of 26 July 2012, notwithstanding the protection order,Ms Edwards met Mr Akuhata at a nightclub in Whangārei at Mr Akuhata's invitation.Patrons witnessed the couple getting into an argument, apparently becauseMs Edwards was texting. Mr Akuhata became angry and tried to snatch awayMs Edwards' cell phone. She was overheard telling Mr Akuhata that he was hurtingher.[13] They left the nightclub at about 1.55 am and were seen walking alongTawera Road. They then got into a further argument on the Lower Tawera Roadbridge. Mr Akuhata lifted or pushed Ms Edwards up and over the parapet ofthe bridge.7 She fell about 5 metres into the stream below. Mr Akuhata then climbeddown the bank into the stream. A further struggle followed in the water untilMr Akuhata grabbed Ms Edwards' hair and held her head under the water until sheshowed no more signs of life.8 Mr Akuhata then made his way home, arriving soakingwet. Once home, he told a family member that Ms Edwards was dead. He repeatedthis to another person he lived with. With these others, he then went to his mother'shome and there asked his brother to find Ms Edwards. The brother called the policewho found Ms Edwards' body floating in the stream under the parapet of the bridge.[14] The autopsy and post mortem examination stated the cause of death wasdrowning. There were many minor bruises and abrasions on Ms Edwards' head, neck,arms and lower legs.7 Counsel showed us file photographs of the bridge. We recognise it as a standard Ministry of Worksconstruction with familiar concrete parapets approximately one metre high.8 We have drawn this summary of the facts largely from the judgment of Woodhouse J followingthe s 9 hearing: R v Akuhata [2013] NZHC 3012 (Section 9 decision).[15] Mr Akuhata was arrested and remanded in custody in Mt Eden CorrectionsFacility. On 25 November 2012 he was assaulted in the Mt Eden Facility and suffereda significant brain injury. It was that injury that raised the question: Is Mr Akuhatafit to stand trial?[16] Ms Catherine Cull, who by then was acting for Mr Akuhata, raised his mentalcondition with the Court in a memorandum dated 29 November 2012. Heath Jresponded in a minute dated 30 November 2012, vacating the callover scheduled for4 December 2012 and fixing 14 December 2012 in Whangārei for a hearing to exploreMr Akuhata's condition. At that hearing, Heath J called for a neuro-psychologicalassessment report and a psychiatrist's report and adjourned the proceeding for furtherhearing on 25 March 2013.[17] By the 25 March 2013 hearing, Heath J had a report dated 12 March fromDr Goodwin, a forensic psychiatrist, which stated:On balance I am of the opinion that it is likely that the court would findMr Akuhata fit to stand trial (Emphasis original.)[18] However, at the 25 March 2013 hearing, concerned about Mr Akuhata's"physiological injury", the Judge ordered a report from a neuro-psychologist. He alsovacated the fixture for the trial, which had been set to begin on 29 July 2013.[19] When Heath J received the 15 April 2013 report of Mrs Sabine Visser, a seniorpsychologist specialising in neuro-psychological assessment, he further adjournedthe proceeding to Whangarei on 13 August 2013, directing that Mr Akuhata be present.Mrs Visser had expressed the opinion that: on balance, the court is likely to find Mr Akuhata currently not fit to standtrial.(Emphasis original.)Mrs Visser recommended postponing the trial for three to six months due tothe sequelae of Mr Akuhata's head injury, and re-testing in three months.[20] In a further minute on 13 August 2013, Heath J recorded that hearings underss 9 and 14 of the CP (MIP) Act would be required, counsel estimating that one daywould be sufficient, the hearings proceeding one after the other. He fixed19 September 2013 for a preliminary hearing by AVL, asking that counsel be ready toinform the Court about the evidence proposed to be given at the s 9 hearing.[21] In a further minute on 19 September 2013, following the hearing that day,Health J noted Ms Cull's concern that she may not be able to take Mr Akuhata'sinstructions to consent to the way evidence was heard at the ss 9 and 14 hearings.Accordingly, he set 10 October 2013 for a hearing following which he would givedirections on the procedure to be followed at those hearings. The Judge timetabledthe filing of submissions and also fixed 14 November 2013 for the ss 9 and 14hearings.[22] Following the 10 October hearing, Heath J issued first a minute, and thena judgment. In the minute he confirmed 10.00 am on 14 November for the s 9 hearingand, if necessary, 2.15 pm that day for a s 14 hearing. He recorded that arrangementshad been made for Dr Goodwin and Mrs Visser to be available to give evidence from2.00 pm on 14 November 2013.[23] Heath J's judgment of 14 October 2013 is a typically comprehensive one.9After considering previous decisions of this Court,10 the Judge directed:(a) Any Crown witnesses called to prove that Mr Akuhata had thrown orpushed Ms Edwards off the bridge and/or held her head under the water,so as to cause her death, were to give their evidence orally and beavailable for cross-examination. So were any Crown witnesses calledto prove admissions made by Mr Akuhata.(b) All other Crown evidence, including the pathologist's report, could betendered by written statement.9 R v Akuhata [2013] NZHC 2669 [Procedural decision for s 9 hearing].10 R v Te Moni [2009] NZCA 560 at [72]–[81]; McKay v R [2009] NZCA 378, [2010] 1 NZLR 441 at[90]–[95]; Ruka v R [2011] NZCA 404, (2011) 25 CRNZ 768; and R v Jeffries [2012] NZCA 608at [34]–[36].The grounds of appeal[24] Eight grounds of appeal were advanced. We deal with these, not in the orderthey were argued, but in an order which is chronological and, we hope, also logical.Mr Ellis did not pursue the third ground of appeal, relating to the admissibility ofMr Akuhata's various admissions.A: Ground 2: The s 9 CP (MIP) Act hearing was unfair and the decision lackedreasons[25] Woodhouse J presided at the s 9 hearing. In a minute on 31 October 2013 herecorded new arrangements, including that the hearing would start at 10.00 am on11 November 2013, with the s 14 hearing, if required, proceeding at 10.00 am on12 November 2013.[26] As it transpired, the s 9 hearing was on 13 November 2013 and Woodhouse Jgave judgment orally following the hearing.11 The Judge noted that the Crown reliedon the definition of murder in s 167(a) of the Crimes Act 1961. That involvedan allegation that Mr Akuhata meant to cause Ms Edwards' death. The essence of thatallegation was that Mr Akuhata threw Ms Edwards off the bridge and then jumped offthe bridge into the stream and held Ms Edwards' head under the water until shedrowned.[27] Central to the Judge's decision were the admissions Mr Akuhata had made tovarious people in the early hours of the morning of 27 July 2012, shortly after he haddrowned Ms Edwards. Their essence was that Mr Akuhata admitted he had thrownMs Edwards off the bridge and that he had then drowned her. The Judge consideredthe clearest admission had been made to Mr David Wiki, who was living withMr Akuhata at the time and was his cousin. Although, given their relationship,Mr Wiki had given his evidence with reticence, the Judge considered he had given itwith honesty. Mr Akuhata made similar admissions to Mr Nathan Hapeta, who alsolived with Mr Akuhata, and to a neighbour, Ms Dominique Wiri. Mr Akuhata made afurther admission to a fellow prisoner in the Mt Eden Corrections Facilitythe following day, after he had been remanded in custody. Asked why he was in11 Section 9 decision, above n 8.prison, Mr Akuhata had answered "because I killed my missus", and then he had addedthat he had "not admitted this to the police".[28] Although the Judge considered those admissions "almost certainly sufficientfor me to be satisfied on the balance of probabilities on the matter that I have to besatisfied on under s 9", he listed other evidence supporting what Mr Akuhata hadadmitted, particularly:(a) Mr Wiki's evidence that Mr Akuhata had arrived home soaking wet andvery upset.(b) The pathologist's finding that the cause of Ms Edwards' death wasdrowning.(c) The fact that Ms Edwards' body was found just below the parapet ofthe Tawera Road bridge.[29] All of that led to the Judge's finding:12[18] It is for all of these reasons that I am satisfied on the balance ofprobabilities that, in terms of s 9 of the Act, Mr Akuhata caused the act thatforms the basis of the offence of murder with which he is charged.[30] Mr Ellis submitted the s 9 hearing was unfair and the judgment flawed inseveral respects. He advanced five points.Actus Reus[31] Mr Ellis submitted the judgment of Woodhouse J was legally wrong, in thatthe actus reus of murder is manslaughter, and the correct finding, if any, was thatMr Akuhata had committed the actus reus of manslaughter, not murder.12 Section 9 decision, above n 8, at [18].[32] This submission is misconceived because s 9 (which is set out in [9] above)required the Judge to be satisfied that Mr Akuhata had probably "caused the act that forms the basis of the offence with which [he] is charged".[33] Thus, in terms of s 9, the Judge's conclusion was correctly directed to "the actthat forms the basis of the offence of murder with which he is charged". The Crown'sallegation was that Mr Akuhata had caused Ms Edwards death by drowning her.The position of manslaughter in the s 9 hearing was correctly set out by Heath J in hisjudgment giving directions for the s 9 hearing:13[20] Although a jury is entitled to return a verdict of manslaughter, if notsatisfied that the requisite murderous intent is present, the availability of thatalternative verdict does not affect the underlying question of what constitutesthe actus reus for the purpose of the s 9 inquiry.Time of death[34] Mr Ellis argued that the Judge could not make the finding he did withoutascertaining "the approximate time, and methodology of drowning causing death".We understand Mr Ellis to be suggesting that Ms Edwards may still have been alivewhen Mr Akuhata left the scene and made his way home. If that were so, thenmanslaughter or even a discharge without conviction was the appropriate outcome.[35] We consider this submission is also misconceived. A verdict of manslaughteror a discharge without conviction were not in play in the s 9 hearing. As the Judgecorrectly defined his task, it was to decide: "is it more likely than not that[Mr Akuhata] drowned Ms Edwards?"14[36] In evidence before us, Ms Cull said that she had regarded the exact orproximate time of Ms Edwards death as unimportant for the purposes of the s 9hearing. We agree, because the time of death could not have affected the outcome ofthe s 9 hearing, given Mr Akuhata's clear admissions that he had drowned Ms Edwards— that is, that he had committed the murderous act with which he was charged.13 Procedural decision for s 9 hearing, above n 9, at [20].14 Section 9 decision, above n 8,at [15].[37] We nevertheless wish to clear away one small point relevant to the time ofMs Edwards' death. At 3.32.31 am on 27 July 2012 someone made a call onMs Edwards' cell phone. It appears the call was made to retrieve text messages fromthe phone. At the time of the s 9 hearing, the Court did not know of this call. Ms Cullgave evidence that she first became aware of it in March 2015, when the Crowndisclosed to her the propensity evidence that it subsequently applied to adduce.The call was mentioned in a draft timeline which Ms Cull said she queried. Becausethe exact or approximate time of death was not relevant, had the Court been aware ofthis call at the s 9 hearing, it would not have affected the outcome. Nor, of course, canMs Cull be criticised for not pursuing this point at the s 9 hearing.[38] Our mention of this cell phone call should not be interpreted as suggesting thatit was Ms Edwards who made the call. The identity of the caller is simply unknown.But, given the events we have detailed in [12] above, it could well have beenMr Akuhata who made the call. Ms Edwards' cell phone was not found after shedrowned.No robust defence[39] In the course of Mr Ellis' cross-examination of Ms Cull before us, there wasthis exchange:Q. Yes, but the Judge listens to counsel and listens to the defenceargument. You didn't run a defence, did you?A. I'm not quite sure what you're indicating. A defence to what?Q. The defence that the Judge could not find, on the balance ofprobabilities, that Mr Akuhata caused the death of Ashlee. It was justnot possible to reach that conclusion on the balance of probabilities ifyou can't ascertain when she died?A. Well, that's how the section 9 was run. You've got the papers. In myopinion, it was possible for him [the Judge] to do that and he did.[40] So this is the "time of death" point again and we need say nothing more aboutit.[41] Mr Ellis also questioned Ms Cull about the three different versions ofthe events preceding Ms Edwards' death that Mr Akuhata gave Mrs Visser inthe course of her successive assessments of him. She recorded these in the threereports she made before the s 9 hearing, and then set them out in sequence in her reportof 3 October 2018 requested by this Court for this appeal. Mr Ellis summarised thesethree versions as follows:(a) Mr Akuhata told Mrs Visser Ms Edwards did not jump off the bridgebut somehow in the scuffle she fell off the railing.(b) Mr Akuhata heard voices telling him what to do. He was told to liftMs Edwards up. He lost his balance, and she then fell as he was tryingto help her but she pulled him down.(c) Mr Akuhata heard voices. He wanted to plead temporary insanity.He did not recall how Ms Edwards fell but he went down to the waterand could not find her.[42] There was this exchange in Mr Ellis' cross-examination of Ms Cull about thesethree explanations by Mr Akuhata:A. Even if I had that information, I struggle to see how that would havebeen able to be utilised in the section 9 hearing, given it is fromMr Akuhata and who I would have cross-examined on that basis.Q. So, his explanation is it's an accident?A. But I've got his explanation, yes.Q. And you couldn't have done anything with that? Okay, the secondone, "He heard voices telling him what to do". Same question, couldyou have made use of that?A. Well, again, the oral witnesses that were called by the Crown whichis clear from the notes of evidence, I struggle to see who I would havecross-examined on, putting that version.Q. Well, you could have called witnesses, couldn't you, to presenta defence case? It's not all a prosecution free-ride, a section 9. It'ssupposed to be a robust defence, isn't it?A. To produce or call a witness to give any evidence of those potentialversions given by Mr Akuhata, in my opinion, would have meant thatI would have had to call Mr Akuhata.Q. Well, you couldn't have on your view that he was unfit at the time,could you?A. Correct, no.[43] As Ms Cull explains, she could not usefully have put those explanations tothe Crown witnesses. None of them was at the stream when Ms Edwards drowned.What could they have said about them? And Ms Cull had assessed that she could notcall Mr Akuhata to advance one or other of those explanations. We do not see anyfault in Ms Cull's conduct of the s 9 hearing, but her answers in the exchange set outin [42] above lead neatly into Mr Ellis' next point.Mr Akuhata unfit for the s 9 hearing[44] For Mr Ellis to submit that Mr Akuhata should not have had to participate inthe s 9 hearing if unfit,15 is to criticise the CP (MIP) legislation as it stood at the time.As explained in [8] above, the Act required the Court to make a finding under s 9before making its determination under s 14 as to whether Mr Akuhata was unfit tostand trial. Presumably, the logic behind this sequence was that the considerable timeand expense involved in obtaining reports under s 38 of the Act should not be incurredunless and until it was determined that the defendant had committed the actus reus ofthe crime alleged.[45] This point fails.No reasoning[46] Mr Ellis submitted the judgment of Woodhouse J lacked reasons. To arrive atthe conclusion that Mr Akuhata had committed the actus reus of murder, Mr Elliscontended the Judge must implicitly have made an unrecorded finding as to the time,and particular method, of death, which, without evidence, would have been no morethan speculation, particularly as counsel failed to raise this issue. We do not acceptthis. We have summarised in [27] and [28] above the evidence on which the Judgebased his finding. And we have held that the fact that the precise or proximate time15 Mr Ellis' written submissions simply refer to Mr Akuhata being "unfit". We assume Mr Ellismeans "unfit to stand trial", as that phrase is defined in s 4 of the CP (MIP) Act.of death was not known does not impugn that finding. We do not consider that therewas any lack of reasoning or any lack of an explanation by the Judge as tothe evidential basis on which he reached his finding. This further point is not madeout either.[47] Accordingly, the challenge to the fairness of the s 9 hearing, and to the Judge'sreasoning and finding, fails.B: Ground 4: No neuropsychologist or radiology report on brain damage, orpsychologist/psychiatrist's report as to appellant's state of mind when making"admissions"[48] This ground of appeal largely fell away. It was formally abandoned in respectof a neuropsychologist's report. Mr Ellis' written submissions left this groundsomewhat open, pending the hearing of the appeal. And then, at the hearing, Mr Ellisdid not address this ground.[49] In a memorandum in July 2018, Mr Ellis suggested Ms Cull had become"fixated" on the brain injury Mr Akuhata sustained while remanded in prison on25 November 2012. Ms Cull interpreted this as a criticism that she had not consideredwhether Mr Akuhata may have had an intellectual disability before sustaining thathead injury. In her affidavit sworn on 16 September 2019, Ms Cull deposed that (withMr Akuhata's consent) she had obtained his medical notes quite early on, in an effortto ascertain whether the possibility of intellectual disability had been raised inMr Akuhata's previous court appearances.16 She deposed that she did not findanything. One of the annexures to Ms Cull's affidavit is her file note of a meetingwith Mr Akuhata at Ngawha Prison on 7 November 2013. In that note Ms Cull records"confirmed I had his medical notes". That meeting was about a week beforethe s 9 hearing on 13 November 2013.[50] In all, Mr Akuhata's mental condition has been the subject of 12 reportsprepared by five different health professionals each with different areas of specialityacross the fields of forensic psychology and psychiatry. Eight of these reports were16 Those were appearances in relation to other matters. Mr Akuhata has 17 previous convictions forviolence, disorderly behaviour, theft, unlicensed driving and possession of cannabis. These spanthe period 2003–2011.before the High Court for the s 14 hearing (to determine whether Mr Akuhata wasunfit to stand trial), and four have been obtained since, for the purposes of this appeal.Those subsequent reports focus primarily on two questions. First, whether there isa concern about Mr Akuhata's guilty plea. Second, whether Mr Akuhata was able toparticipate "meaningfully" in the criminal proceeding against him, in particularthe hearing under ss 9 and 14 of the CP (MIP) Act.[51] In our view, the High Court had, for the s 14 hearing, comprehensive andcareful reports on Mr Akuhata. No criticism, either of Ms Cull or of the High Court,can legitimately be made in that respect.[52] Likewise, we consider this Court is equally well served with reports for thisappeal. In addition, we have had the benefit of hearing evidence directly fromDr Pillai. Although Dr Pillai is based in Auckland, he was in Wellington on the daythis appeal was heard and was able to come to Court to be cross-examined by Mr Ellis.[53] Insofar as this ground of appeal was pursued, we dismiss it.C: Ground 6: Detention at the Mason Clinic arbitrary, unlawful and a breach of ss 9,22 and 23(5) of the New Zealand Bill of Rights Act 1990 (NZBORA)[54] Before considering this ground, we outline what occurred betweenthe s 9 hearing on 13 November 2013 and the s 14 hearing on 26 June 2014.[55] On 14 November 2013 Woodhouse J adjourned, to 14 May 2014,the s 14 hearing which had been scheduled for that day. He did that having consideredthe reports prepared by Mrs Visser and Dr Goodwin. Both thought Mr Akuhata'smental health would improve to the point where he was fit to stand trial. The Judgedirected both experts to prepare further reports for the 14 May 2014 hearing and to beavailable to give evidence at that hearing.[56] Those further reports were duly received by the High Court.[57] Wylie J presided at the s 14 hearing on 14 May 2014. He had read the twofurther reports. Both experts favoured Mr Akuhata being admitted to the Mason Clinicfor further evaluation. The Judge heard evidence from Mrs Visser by telephone(technical problems prevented the scheduled AVL link). The Judge also heard fromcounsel. He stated:17[15] Having considered the various reports prepared by Dr Visser andDr Goodwin (both the earlier reports and the more recent reports), and takinginto account the evidence which I heard from Dr Visser, I am satisfied that itis appropriate to order that the defendant be detained in the Mason Clinic forthe purpose of further assessment under s 38 of the Act. I direct thatthe defendant is to be detained in the Mason Clinic for a period not exceeding14 days. I am satisfied that it would be inappropriate to order the defendant'sdetention in a prison for the following reasons:(a) the defendant's condition, and the extent to which it has improved,can be better assessed in the Mason Clinic;(b) the Mason Clinic provides a better environment in which it can bedetermined whether or not the defendant is feigning all or some ofthe symptoms he claims;(c) the defendant can receive more appropriate medication in the MasonClinic than would be available to him in a prison environment.[58] Wylie J then made arrangements against the likelihood (mentioned byMrs Visser) that detention in the Mason Clinic for more than the initial 14 day periodpermitted by s 38(2)(b) of the CP (MIP) Act would be required. The Judge also gavedirections for the earliest practicable s 14 hearing.[59] Heath J extended the period of detention for a further 14 days, recording hisorder in a minute on 28 May 2014. Section 40(1) of the CP (MIP) Act permitted this.Heath J also fixed the s 14 hearing for 26 June 2014 before Faire J, directing that anyfurther applications be referred to that Judge. He also directed that Mrs Visser,Dr Goodwin and Dr Pillai were, if possible, to be available for cross-examination atthe 26 June 2014 hearing.[60] Dr Pillai reported to the High Court on 11 June 2014. He is a consultantforensic psychiatrist with the Waitemata District Health Board. Dr Pillai based his17 R v Akuhata [2014] NZHC 1008 at [15].report on interviews with Mr Akuhata in the Mason Clinic on 19 and 26 May, and6 June, 2014. The following parts of his report are relevant:CONFlDENTIALITY & CONSENT9. At the outset of Mr Akuhata's admission to the Mason Clinic on 14 Mayand the outset of my assessment with Mr Akuhata on 19 May 2014 he wasinformed of the limits of confidentiality with respect to information hedivulged. Mr Akuhata appeared to understand this. A number of times duringinterviews with Mr Akuhata he (appropriately) held back in a deliberatefashion due to caution in providing information which could be prejudicial toa future defence to his charges.PROGRESS AND OBSERVATIONS DURING INPATIENTADMISSION AT THE MASON CLINIC16. Due to some irritability at the time of admission Mr Akuhata was brieflymanaged in seclusion with high levels of staff. He rapidly calmed, becamecooperative and was transitioned to the main ward. The day after his arrivalhe was questioned by a psychiatrist about any perceptual disturbances orunusual experiences and did not provide any information consistent withassertion on his first day that he was seeing aliens. Absence of any psychoticsymptoms was recorded. It was reported that Mr Akuhata was aware that hewas in the Mason Clinic for an assessment of his fitness to stand trial.27. Mr Akuhata was asked to comment on the summary of facts. Mr Akuhatasaid he had read "some of the disclosure". Mr Akuhata identified the differenttypes of information and their relative strengths e.g. minimisingthe importance of "hearsay" information. Mr Akuhata also stoppedresponding to my questions at a point where he felt the evidence was not firmand said it was his "personal business" and between him and his lawyer.Mr Akuhata became a little irritable at this point and said that I was talking tohim like a police officer. I attempted to introduce new information regardingwounds on the victim (not in the disclosure provided) and Mr Akuhataidentified this as not accurate.OPINIONRe fitness to stand trial as defined in Section 4 of the Criminal Procedure(Mentally Impaired Persons) Act 200358. Overall on the basis of the information available to me I have formedan opinion that on the balance of probabilities Mr Akuhata can 'communicateadequately for the purposes of conducting a defence' and therefore it isunlikely that Mr Akuhata falls within the meaning of unfit to stand trial asdefined within Section 4. In summary I found his functional performancewithin the ward and at interview to be generally adequate and whilethe neuropsychological testing over the past 18 months has continued to showdeficits, it has generally trended towards improvement.RECOMMENDATION59. I have offered a clinical opinion that Mr Akuhata does not fall withinthe meaning of unfit to stand trial as defined in the Criminal Procedure(Mentally Impaired Persons) Act 2003.60. Should Mr Akuhata ultimately stand trial may I respectfully recommendthat shorter periods of Court (45 minutes) with time to allow Mr Akuhata torest and debrief with Counsel could assist him to cope. Mr Akuhata is alsovulnerable to anxiety which could affect his performance in the Court room.[61] Mr Akuhata was returned to prison following his discharge fromthe Mason Clinic on 11 June.[62] In respect of Mr Akuhata's detention in the Mason Clinic Mr Ellis made sixsubmissions:(a) It was wrong in principle and in law to detain Mr Akuhata in a mentalhealth facility because he was not mentally ill.(b) Mr Akuhata's detention in the Mason Clinic was an arbitrary detentionin breach of s 22 of the NZBORA:22 Liberty of the personEveryone has the right not to be arbitrarily arrested ordetained.(c) His detention was also in breach of s 23(5) of NZBORA:23 Rights of persons arrested or detained(5) Everyone deprived of liberty shall be treated with humanityand with respect for the inherent dignity of the person.(d) Each successive period of detention was for 15 days, in breach ofthe statutory maximum of 14 days. Consequently, the 15th day of eachperiod of detention was arbitrary.(e) Dr Pillai's examinations of Mr Akuhata were illegal.(f) Ms Cull erred in not advising Mr Akuhata that it was unlawful tocommit him to a mental health facility when he was not mentally ill.[63] We will address each of these points in turn.Detention in Mason Clinic unlawful and/or arbitrary?[64] As Mr Akuhata was in custody, the High Court had power to order a healthassessor's report for the purpose of assisting the Court to determine whetherMr Akuhata was unfit to stand trial.18 And, having ordered a report, the High Courtalso had power to order that Mr Akuhata be detained "in a hospital or secure facility"for the purpose of the assessment.19 The Mason Clinic is a secure facility.20[65] As required by s 38(4), Wylie J recorded his reasons for ordering thatMr Akuhata be detained in the Mason Clinic. We have set those out in [57] above.Section 38 did not require that Mr Akuhata be mentally ill before he could be detainedin a mental health facility such as the Mason Clinic. However, the concerns aboutMr Akuhata's mental health were squarely before the Court in the reports ofMrs Visser and Dr Goodwin. As it transpired, Dr Pillai did consider Mr Akuhata had18 Criminal Procedure (Mentally Impaired Persons) Act 2003, s 38(1).19 Section 38(2)(c).20 The term "secure facility" has the meaning given to it by s 9(2) of the Intellectual Disability(Compulsory Care and Rehabilitation) Act 2003. It is a facility designed and operated to preventpersons required to stay in it from leaving without authority.a "mental impairment" within the meaning of that term as it is used in the definitionof "unfit to stand trial" in s 4 of the CP (MIP) Act.[66] It follows that Mr Akuhata's detention in the Mason Clinic was neither wrong,unlawful, arbitrary or unfair. On the contrary, it was entirely lawful and appropriate.If the detention was discriminatory in any way, then the discrimination was inMr Akuhata's favour, because of the Court's concern about his mental condition andits wish that appropriate medication be available to Mr Akuhata. A remand in prisonwas the alternative.Not treated with humanity?[67] Mr Ellis' submission that there was a failure to treat Mr Akuhata with humanityand with respect for his inherent dignity, in terms of s 23(5) of NZBORA, is notsupported by any evidence. It is a bare assertion. The available evidence comes fromfour sources and does not support the assertion. First, Ms Cull has deposed thatMr Akuhata was well aware that he was going to the Mason Clinic for up to 30 daysfor a further report. Mr Akuhata was present at Court on 14 May 2014 and Ms Cullalso spoke to him following the hearing. She deposes "[h]e was happy with going tothe Mason Clinic for assessment". Ms Cull says she also spoke to Mr Akuhata bytelephone on 22 May 2014 explaining that his time at the Mason Clinic had beenextended. Her note of that conversation records "said was enjoying Mason Clinic –all good".[68] Second, Dr Pillai's 11 June 2014 report, overall, confirms that Mr Akuhata wascontent and settled during his time in the Mason Clinic. We have set out, in [60] above,paragraph 16 of Dr Pillai's report which records some initial irritability onMr Akuhata's part, until he was moved from seclusion to the main ward in the Clinic.Certainly, Dr Pillai's report provides no support for Mr Ellis' submission that he wasnot treated with appropriate respect.[69] Third, in her report of 3 October 201821 prepared for Mr Ellis for this appeal,Dr Shaw also discusses the time Mr Akuhata spent in the Mason Clinic. Dr Shaw is aneuropsychologist. She records Mr Akuhata telling her that he "didn't mind being inthe Mason Clinic it was quite 'nice' there, and he definitely preferred it to prison. He said he felt comfortable there ". Mr Akuhata also told Dr Shaw that, becausethe environment was quite pleasant, he did not mind when his initial two week staywas extended.[70] Fourth, in his 13 March 2019 report prepared for Mr Ellis, Dr Barry-Walshstates that Mr Akuhata's admission to the Mason Clinic "was appropriate and the onlyrealistic option available given detention was ordered under s 38(2)(c) forthe purposes of assessment of unfitness to stand trial".Periods of detention unlawfully long?[71] There is also nothing in Mr Ellis' submission that the two periods of detentionwere for 15 days rather than the statutory maximum of 14. Assuming day one ofthe detention was from the day after the Court's order of 14 May 2014, 14 days endedon 28 May. On 28 May, the Court further extended the detention until 11 June.That further period was from 29 May to 11 June — 14 days. As the Crown points out,Mr Akuhata's total stay was 28 days, two days less than the 30 day maximum periodstipulated by s 40(1) of the CP (MIP) Act.Dr Pillai's assessments and report unlawful?[72] It follows from all this that Dr Pillai's three successive assessments ofMr Akuhata and his report were not unlawful. The report was ordered by the Courtunder s 38 and appears to us to have been carried out with a high degree of care andprofessionalism. We make that observation having had the benefit of hearing Dr Pillaiquestioned in Court by Mr Ellis.21 This is the date on which Dr Shaw interviewed Mr Akuhata at Auckland Prison. Her report isundated. We also note that it is not prepared in a form appropriate for submission to the Court.There is no acknowledgement of the Code of Conduct for Expert Witnesses nor undertaking tocomply with s 82 of the Criminal Procedure Act 2011. We assume that is because Dr Shaw thoughtit was for Mr Ellis' purposes only. We nevertheless appreciate having this comprehensive report.Error on Ms Cull's part?[73] The criticism directed at Ms Cull must also be rejected. She explained toMr Akuhata the purpose and duration of his detention in the Mason Clinic, and shespoke to him again when the detention was extended. Her contemporary file notedemonstrates that Ms Cull was also concerned to check that Mr Akuhata was notexperiencing any difficulties at the Clinic.[74] There is nothing in any of the six points made in support of this ground ofappeal, which we dismiss.D: Ground 4: (sic) No right to counsel, to silence, or to refuse medication[75] Mr Ellis submitted:(a) Mr Akuhata should have been informed of his right to silence, and hiss 23(1)(b) NZBORA right to consult and instruct a lawyer, before eachof the assessments of his fitness to stand trial was carried out. This wasparticularly so in respect of the three assessment interviews by Dr Pillaiduring Mr Akuhata's detention in the Mason Clinic.(b) Consequently, all the reports to the Court under s 38 ofthe CP (MIP) Act were unlawfully obtained. The Court had nolawfully obtained s 38 reports for the s 14 hearing which, consequently,"misfired".(c) Mr Akuhata was not informed of his right under s 11 NZBORA torefuse medical treatment while in the Mason Clinic. He was prescribed"an SSRI (anti-depressant) to assist his thought processes".(d) Each of Mrs Visser, Dr Goodwin and Dr Pillai were on the staff ofthe Mason Clinic and were not independent of each other. There wasa systemic lack of independence.Rights to silence, to legal advice, and to refuse medication breached?[76] In dealing with the submissions that Mr Akuhata's rights to silence, to legaladvice, and to refuse medication, under ss 11 and 23 NZBORA were breached, weassume, without in any way accepting, that these rights were breached. We say moreabout this assumption in [85] below. We also assume the consequence that the reportsobtained from Mrs Visser and Drs Goodwin and Pillai pursuant to s 38 wereimproperly obtained. On those assumptions, the admissibility of those reports inthe s 14 hearing would fall to be determined under s 30 of the Evidence Act 2006.22Mr Ellis did not direct submissions to s 30, but we are in no doubt that the reportswould have been ruled in.[77] The following six factors would have been prominent amongst thoseconsidered by the Court under s 30(3). First, there was nothing deliberate or reckless,nor any bad faith, in the breaches. It remains an undecided question whether thes 23 NZBORA rights do need to be explained (again) to a remand prisoner detainedunder s 38(2)(a) of the CP (MIP) Act.23[78] Second, each of the reports contains a 'confidentiality and consent' section inmuch the same terms. We draw this example from Dr Goodwin's report of6 May 2014:CONFIDENTIALITY & CONSENT9. At the outset of my interview with Mr Akuhata I explained to himthe reason for our meeting. Mr Akuhata indicated to me that he wasaware I was coming to interview him again. Mr Akuhata displayedan awareness that the issue at stake was one of fitness to stand trial.10. Mr Akuhata indicated that he was aware a report would be preparedfor the Court. He was able to indicate the limits of confidentialityinherent in this situation.11. Mr Akuhata was co-operative with the interview process. He didbecome irritable one stage though rapidly calmed down.22 We refer to the view expressed by the High Court in Maangi v Police [2016] NZHC 2571 at [29]that a s 9 hearing is a criminal proceeding for the purposes of s 30 and find that a s 14 hearing isalso a "criminal proceeding" for the purposes of s 30, or is at least a hearing in a criminalproceeding.23 The point was left open by the High Court in Togia v Police HC Wellington CRI-2007-485-37,17 March 2009, particularly at [222].[79] Third, there was the following exchange in Mr Ellis' cross-examination ofDr Pillai:Q. And when you were trying to advise him of his rights, "you don't haveto answer these questions" and you said he didn't on some occasions.Did you actually know what rights he had that you could advise himon?A. In the broadest sense, the rights would be that to explain to himthe purpose of the interview, when I was interviewing him specificallyaround the facts of the – round on the assessment of fitness to standtrial and to re-advise him that the things that he spoke about, I woulduse for this report and would become available to the Court.Q. You didn't advise him that he had a right to a lawyer while you werequestioning him?A. That would not be part of my usual process.Q. And you didn't advise him he had the right to silence, didn't have tosay anything?A. I think that might be implicit. Well, if I follow my usual practice,which I would say he doesn't have to answer the questions put to him.[80] Fourth, the reports, particularly the critical report of Dr Pillai dated 11 June2014, make it clear that Mr Akuhata steered well clear of saying anythingincriminating. And there is no suggestion that the breaches of Mr Akuhata's rightsresulted in him making incriminating admissions or remarks. The second and thirdpoints we have just made may explain that or may have contributed to that.[81] Fifth, Ms Cull was acting for Mr Akuhata throughout. So he had a lawyer "hecould consult and instruct without delay". Essentially, Mr Ellis' submission is thatMr Akuhata's s 23(1)(b) NZBORA right was breached because it was not explainedto him that he had a right to something he already had: a lawyer. This situation can becompared with that in Togia, where the High Court held that any breach of Mr Togia'ss 23(1)(b) right was cured by the subsequent appointment of counsel to represent him,before he pleaded guilty.24[82] Sixth, Mr Akuhata was not, while in the Mason Clinic, prescribed medicationto help with his thought processes. Dr Pillai made this clear in his evidence, in answer24 At [222].to questions from Mr Ellis. As best we can ascertain from the reports, it wasDr Goodwin, in his 15 October 2013 report, who recommended "the addition ofspecific medication that may assist with [Mr Akuhata's] emotional lability andcapacity to focus attention ". Then, in his 6 May 2014 report, Dr Goodwin notedthat Mr Akuhata was no longer emotionally labile while discussing the issue of hispotential plea and defences. Dr Goodwin noted "[t]his may well be due tothe prescription of an SSRI medication following my last assessment of him". Thatrefers to Selective Serotonin Reuptake Inhibitors, which are some of the mostcommonly prescribed anti-depressants. In his 11 June 2014 report Dr Pillai noted thatMr Akuhata: has been fully independent with all his activities of daily living and fullycompliant with his medication being an anti-depressant citalopram that wasprescribed from prison.[83] Thus, although the Mason Clinic continued to administer the Citalopram, itseems that it was prescribed by a doctor while Mr Akuhata was in prison.Mrs Visser and Drs Goodwin and Pillai not independent of each other?[84] Mr Ellis did not press his submission that there was a systemic lack ofindependence as between Mrs Visser and Drs Goodwin and Pillai. We think he wasright not to do so. There is no hint in any of the reports that the reporting medicalprofessional has been influenced by the views of others. That is particularly so ofthe critical report of Dr Pillai dated 11 June 2014. Dr Barry-Walsh put to rest a concernexpressed by Dr Shaw as to whether there may have been a conflict of interest inthe involvement of Mrs Visser and Dr Pillai, given both were employed atthe Mason Clinic. Dr Barry-Walsh said: It is evident from Dr Pillai's report he was not the responsible clinicianduring Mr Akuhata's admission, and I am aware that the standard practice atthe Mason Clinic is to ensure that there are no issues around dual agency forreport writers. I find there is no conflict of interest in his completingthe further report.[85] There is no substance in this ground of appeal, which we dismiss. In doing so,we reiterate that we have found it convenient to deal with this ground of appeal onthe assumption that Mr Akuhata's ss 11 and 23(1)(b) NZBORA rights were breached.We are not to be taken as accepting that those rights were breached, because that is notour view. In particular, in relation to s 23(1)(b), there is an artificiality in suggestingthat this right was breached when Mr Akuhata, at all material times, had a lawyer whowas advising and assisting him.E: Ground 5: The s 14 CP (MIP) Act hearing was unfair[86] Faire J presided at the s 14 hearing on 26 June 2014 and delivered his judgmenton 3 July 2014.25 In terms of s 14(2) of the CP (MIP) Act, the Judge found Mr Akuhatafit to stand trial. Mr Akuhata appealed against that judgment. The appeal was heardby this Court on 13 October 2014 and dismissed in a judgment delivered on3 December 2014.26[87] Mr Akuhata is not seeking again directly to challenge the correctness ofthe High Court's judgment. Rather, the points advanced in support of this groundchallenge the fairness to Mr Akuhata of the hearing, and in one respect the focus ofthe hearing.[88] We have distilled into three the points advanced by Mr Ellis in support of thisground. The first point is that the successive judges who dealt with the proceeding inthe High Court, and the three judges who dealt with his appeal in this Court, failed toensure that Mr Akuhata "was actively participating" in the s 14 hearing and the appeal.Mr Ellis draws the words we have quoted from the judgment of the English Court ofAppeal in Dixon v R.27[89] The evidence does not support this assertion. First, to assist him in makingthe determination required by s 14, Faire J had eight reports covering in detailMr Akuhata's mental condition. In particular, Dr Pillai's 11 June 2014 reportrecommended that any hearings be broken up into 45 minute hearing periods.Thus, the Judge would have embarked on the hearing very much alive toMr Akuhata's mental impairment.25 R v JPA [2014] NZHC 1534.26 JA (CA402/2014) v R [2014] NZCA 590.27 Dixon v R [2013] EWCA Crim 465; [2013] 3 All ER 242 at [97].[90] Second, although Mr Akuhata was present when the hearing began on 26 June2014, after the morning adjournment Ms Cull applied that he be excused fromthe courtroom. In her affidavit Ms Cull explained:Mr Akuhata was present for part of the s 14 hearing. At the adjournment hetold me he did not want to continue attending the hearing as he was tired anddid not want to listen to the medical evidence. I asked if he was happy forthe hearing to continue in his absence. He said he was. I recall that a personfrom forensics also met with him. In light of that I did not consider the hearingshould be adjourned. I told the Judge I had clear instructions because I did.The "clear instructions" related only to Mr Akuhata not wanting to be presentand hear the evidence, not to his general ability to instruct and communicatewith me that was my focus on his appeal to the Court of Appeal againstthe decision that he was fit to stand trial.[91] There is a section in the judgment of Faire J recording in a typically thoroughway how the Judge went about considering that application, which he granted.28So, the remainder of the s 14 hearing proceeded in Mr Akuhata's absence. It isdifficult to see how Faire J could, after Mr Akuhata left the courtroom, have ensuredthat he "was actively participating" in the hearing.[92] Mr Ellis' second submission is that there was unfairness because Mr Akuhatahad no communication assistance. He referred to s 80 of the Evidence Act whichprovides:80 Communication assistance(1) A defendant in a criminal proceeding is entitled to communicationassistance, in accordance with this section and any regulations madeunder this Act, to—(a) enable the defendant to understand the proceeding;[93] Mr Ellis pointed out that Mrs Visser, in her report of 7 October 2013, notedthat Mr Akuhata "stated that he had a hearing deficit that he related to difficulties inearly childhood". However, we understand the nub of this second submission is thatno proper steps were taken to ensure that Mr Akuhata understood the purpose ofthe s 14 hearing and what was being said in Court. As to ensuring that Mr Akuhata28 R v JPA, above n 25, at [13]–[18].understood the purpose of the hearing, there was this exchange in Mr Ellis'cross-examination of Ms Cull:Q. Well isn't it your job to explain them [the ss 9 and 14 hearings] tohim? Not his job to say I don't understand?A. They were explained to him, Dr Ellis, after they occurred the wholeprocess was explained to – was explained to him prior to the section9 and 14 proceeded and the purpose of them and as simple language Icould – I could use because consensually it's difficult for defendantsto understand what a section 9 is. They think that that means there'sa determination of guilt and that they think that they are not able to, ifthey're found fit, then attack the evidence, that was explained to him.That it was a process for a court to consider whether they weresatisfied on the balance of proba – these are my words now, notthe words I used to him – on the balance of probabilities he wasinvolved and that we would then move to the medical evidence whichwas around whether he was well enough, and that was the word I used,to be able to either plead to the charge or proceed through trial.Q. And at that stage, you didn't think it appropriate to request acommunication assistant to help with his understanding?A. All dealings I had with Mr Akuhata, I had no issue with him, in myview, understanding what I was saying because I would get him torepeat it back to me orally as to what is it that you think I've just said,like I would a young person.[94] Further, both Drs Shaw and Barry-Walsh were specifically asked by Mr Elliswhether they considered Mr Akuhata would have understood the ss 9 and 14 hearings,in particular the language used in Court. Allowing for the limitations of retrospectiveassessment, both doctors considered he would have. Dr Shaw stated:Currently, Mr Akuhata has sufficient cognitive resources and communicationabilities to enable him to understand the nature of his appeal, and possiblestrategies used to build his case. Therefore, it seems sensible to conclude thathe would also have had these abilities prior to his injury. He may havestruggled to understand this information when in the recovery phase followinghis brain injury, but his recovery would have stabilised about 18 months postinjury. After that time, his ability to understand information would likely beabout the same as it is now — sufficient to enable him to participatemeaningfully in court proceedings — albeit perhaps with a little extra effortfrom those assisting him.Dr Barry-Walsh said:Whilst he would have been limited in his abilities and there are problems ina retrospective assessment some five to six years after the legal processoccurred, I consider it likely he would have been able to follow legal processat that time. [95] As to Mr Akuhata understanding what was being said in Court during the s 14hearing, as we have explained, Mr Akuhata asked to be excused from the courtroomfollowing the morning adjournment and that application was granted[96] The third point Mr Ellis advanced was that the focus of the s 14 hearing waswrongly on Mr Akuhata's mental condition post his traumatic head injury, and not onhis pre-injury state. This point was advanced briefly in Mr Ellis' written submissionsand was not elaborated upon at the hearing. Mr Ellis did not explain whyMr Akuhata's mental state and abilities before his head injury were relevant tothe determination the Court needed to make under s 14 of the CP (MIP) Act. In ourview they had no relevance. The question for the Court was whether Mr Akuhata wasunfit to stand trial. The answer depended on the assessments of his then current mentalcondition. That explains the series of updating reports, as Mr Akuhata's mental healthsteadily improved. Although Mr Akuhata's mental condition at the time he killedMs Edwards on 27 July 2012 might be relevant had the case gone to trial (relevant tothe issue of whether Mr Akuhata had the alleged murderous intent), it had norelevance at the s 14 hearing.[97] None of the three points advanced in support of this ground has merit and weaccordingly dismiss this ground.F: Ground 1: Mr Akuhata's guilty plea wrongly entered[98] Although chronologically last, this was Mr Akuhata's primary ground ofappeal. As explained in [6] above, Mr Akuhata seeks to impugn his guilty plea onthe grounds it was induced by a ruling under s 9 of the CP (MIP) Act that was wrongin law, and because Ms Cull had given Mr Akuhata incorrect advice about thenon-availability of certain defences or potential outcomes.[99] We have already held that the High Court's ruling under s 9 ofthe CP (MIP) Act was not wrong in law, so that basis for challenging the guilty pleafalls away. Mr Ellis advanced a number of further points, in support of his submissionthat Mr Akuhata's guilty plea was wrongly entered. Broadly, these points fall intothree categories and we will deal with each in turn.Judicial error or impropriety?[100] First, Mr Ellis argued that it was improper for Asher J to accept Mr Akuhata'sguilty plea, because he had been a member of this Court when it heard andsubsequently dismissed Mr Akuhata's appeal against the High Court's determinationunder s 14 of the CP (MIP) Act.[101] We reject this. This Court had upheld the High Court's ruling that Mr Akuhatawas fit to stand trial. That in no way disqualified Asher J from accepting Mr Akuhata'sguilty plea and convicting him of murder. Indeed, having sat on the s 14 appeal,Asher J was particularly well qualified to accept the plea. He was alive toMr Akuhata's mental impairment. Mr Ellis acknowledges this, although as part of hissubmission that Asher J was disqualified from sitting. Mr Ellis submitted"Justice Asher was fully cognisant of the issues arising from the various healthassessors, going to the heart of the question of whether Jimmy [Akuhata] was fit toplead". We simply do not accept that there is any basis on which Asher J's impartialitycan be challenged. The authorities Mr Ellis referred us to all involved matters where,because of a prior decision or expression of view, a judge(s) was unable to bringan impartial mind to bear on the matter at hand. Here, Asher J's view that Mr Akuhatawas fit to stand trial cannot raise a concern as to his ability subsequently to accept aplea of guilty from Mr Akuhata. Mr Ellis did not articulate how any concern, as toimpartiality or otherwise, could arise in that situation. And our view is that it couldnot.[102] The second argument directed at Asher J was that he had failed to discharge"a juridical duty to verify the plea, despite the Guilty plea, and the amended summaryof facts". The platform for this submission is criticism of Ms Cull for not apprisingthe Judge of the various different versions of events Mr Akuhata had given toMrs Visser, the timeline evidence (we understand this to be a reference to the call madeon Ms Edwards' cell phone in the early hours of 27 July 2012, referred to in [37]above), the spiked drinks evidence (which we refer to at [118]), Ms Edwards'propensity to falling, and the time of death issues. Mr Ellis submitted the Judge shouldhave made full inquiry into the circumstances of the guilty plea being instructed.He should have done that by closely questioning Mr Akuhata as to whether this wasreally, genuinely his plea and represented what he wished to do. When putting this tous, Mr Ellis added that Asher J should have proceeded "like the American Judge onTV". If Mr Akuhata was still maintaining that Ms Edwards' death was an accident,then in Mr Ellis' submission the Judge would have uncovered that. Mr Ellisemphasised that this submission was an attack on the systemic approach ofthe High Court in taking a guilty plea from a mentally impaired person.[103] We do not accept this submission. This Court had upheld the High Court'sdetermination that Mr Akuhata was fit to stand trial. That encompassed being fit toplead. Mr Akuhata was represented by very experienced counsel.29 In thosecircumstances, the Judge had no duty to "verify" the plea Mr Akuhata entered. Indeed,we consider it would have been quite improper of the Judge to delve into the plea inthe manner Mr Ellis suggests. Drawing from the decision of the Appeals Chamber ofthe International Criminal Tribunal for Rwanda in Kambanda v Prosecutor,30 Mr Ellissubmitted the tests should be: Was the guilty plea voluntary, informed, andunequivocal? If those tests are applied here then, for the reasons set out in [104] to[125] below, they are met.Improper pressure from counsel and family?[104] Mr Ellis submits that Mr Akuhata was improperly pressured into pleadingguilty, both by Ms Cull and by his family.[105] It is in respect of this submission that the lack of any evidence fromMr Akuhata is most telling. An allegation of improper pressure of this sort requiresan evidential basis and there is none. There is nothing from Mr Akuhata and there has29 In her affidavit Ms Cull outlined her legal experience. She was admitted to the bar at the end of1985. She had practised for some nine years with the Crown Solicitors in Auckland andChristchurch. She had been in a private law firm for three years and then had practised asa barrister sole, first in Christchurch and then in Kaikohe, for some 22 years. She had prosecutedand defended numerous criminal trials, including murder trials. Her experience included youthadvocacy and appointments as lawyer for a child. The Ombudsman had retained her as aninvestigating officer for South Island prisons. She had acted for many defendants suffering frommental impairments and had conducted several ss 9 and 14 CP (MIP) Act hearings. She had actedfor defendants who had been found fit to plead, although they had also been found to have somemental impairment.30 Kambanda v Prosecutor (Judgment) ICTR Appeals Chamber ICTR 97-23-A, 19 October 2000.been no attempt to obtain evidence from any member of his family. What evidenceand material we do have is all to the contrary effect.[106] First, Ms Cull deposed that Mr Akuhata's wish to plead guilty firmed upthrough five successive meetings with her between 5 February and 17 March 2015.Mr Akuhata first raised with her the possibility of his pleading guilty to murder ata meeting by AVL on 5 February 2015, inquiring what sentence he might then receive.Ms Cull's note of that meeting records:We talk about poss. of guilty plea + how MPI works + whether can get disc.for guilty plea.He wants us to sit down + sort direction out + seriously wants to disc. g. plea.[107] Ms Cull then outlined two further meetings with Mr Akuhata, this time face-to-face, on 19 February and 25 February. At both there was further discussion abouta guilty plea to murder, and the likely minimum non-parole period should he do that.Ms Cull's note of the 25 February meeting records:He is waivering (sic) as to whether to go to trial. Sd perhaps we should dopre-trial + then make a decision. Sd he would have to therefore accept hedeliberately held head under water with intent to kill her or didn't care.[108] That meeting was shortly before the Crown's pre-trial application to admitpropensity and hearsay evidence was heard. In relation to that evidence Ms Culldeposed:[Mr Akuhata] was very concerned about the effect of the propensity andhearsay evidence the Crown was seeking to have admitted. He was concernedabout the personal nature of this evidence and its use at trial. His concern wasnot just how it could seriously affect the outcome of the trial, but how itspublic release would affect his children and family.[109] The High Court ruled the Crown's propensity and hearsay evidence admissibleon 3 March 2015. Ms Cull deposed to a further meeting with Mr Akuhata on 6 March.The consequences of the ruling were discussed and Ms Cull, having spoken tothe Crown, advised Mr Akuhata that the Crown would not accept a plea of guilty tomanslaughter. Ms Cull told Mr Akuhata that he could run a defence to the charge onthe basis of "no intent", explaining that whether the jury accepted this would dependon the Crown's evidence and any evidence that Mr Akuhata elected to give.[110] Ms Cull deposed that Mr Akuhata then advised her he did not want to go totrial and wanted to plead guilty. She held no concerns that Mr Akuhata understoodwhat a guilty plea entailed, in terms of the facts he would be accepting. What followedis captured in Ms Cull's contemporaneous note:Sd very serious decision + would organise a further meeting with AD[Mr Aaron Dooney, her junior] + someone from Forensic Team to confirmagain his decision + take written instructions.He was happy with that.[111] That further meeting took place on 17 March with Mr Dooney and Ms Dakers,a nurse from the forensic team who had dealt with Mr Akuhata through the courtprocess and knew him and his history. Ms Cull said she wanted Mr Dakers there toconfirm independently her view that there was no need for any further inquiry as toMr Akuhata's fitness to plead. We assume Ms Cull was concerned that aboutsix months had elapsed since the s 14 hearing before Faire J on 26 June 2014.The outcome of that meeting was the following written instruction by Mr Akuhata:I, Jimmy Akuhata, instruct my lawyers C Cull and A Dooney that I wish toplead Guilty to murder of: Ashlee EdwardsI accept that I held Ashlee Edwards under the water until she died.The Caption Summary as I discussed with C Cull today 17/3/15 is the correctversion and I accept and acknowledge I will be sentenced according to whatthat Caption Summary says.I understand that I will be sentenced to life imprisonment but the argument atsentence will be what minimum term of imprisonment will be. I hope that Iwill get a discount for my guilty plea. I have been told that the Crown will tryto argue it should be 17 years but that Catherine will argue against that.I have had explained the trial process and am sure that I do not want to go totrial. I want to plead guilty. I confirm the above by signing below. I have hadthis read to me. I sign in presence of C Cull, A Dooney, J Dakers:"J. P. Akuhata"____________________________Signed: Jimmy Akuhata (17.3.15)[112] Ms Cull was closely questioned by Mr Ellis about Mr Akuhata's submissionthat he had been pressured into pleading guilty. She said that she was alive to potentialfor pressure, and her contemporaneous notes bear that out. Ms Cull noted Mr Akuhatatelling her "my family says plead guilty, move on, (don't) bring family down". But shewas not budged in her view that there was no undue pressure on Mr Akuhata to pleadguilty.[113] Second, there are the reports obtained by Mr Ellis from Drs Shaw andBarry-Walsh. Mr Ellis asked each doctor to comment on the possibility that unduepressure led Mr Akuhata to plead guilty. Dr Shaw stated:I do not think he would be susceptible to undue pressure to plead guilty, and Iassume that his lawyer would have explained to him the difference betweenmurder and manslaughter (this is an assumption, not a known fact. He cannotremember and I have not spoken to the lawyer involved). He hasdemonstrated the ability to use discretion when giving information andanswering questions e.g. when first arrested by police he declined to comment,and in subsequent interviews he has expressed the wish to not answer somequestions and instead discuss such matters with his lawyer. He currentlydemonstrates an understanding of the difference between murder andmanslaughter.[114] Dr Barry-Walsh said this:As I have noted above it is difficult to do more than speculate about issues thathave occurred so many years prior. I have already opined Mr Akuhata wouldnot meet the test for unfitness to stand trial now. He displayed during myinterview a good understanding of the differences between a guilty plea tomanslaughter and murder and an awareness of the consequences of pleaoptions. As has been commented by both Dr Pillai and Dr Shaw he has showna capacity to be strategically selective in the information he provides.Assuming his deficits were stable I consider he probably would have beenable, with the support of counsel, to make a decision as to plea with no morepressure than would normally be found in such circumstances.[115] We accept there was pressure on Mr Akuhata from his family to plead guilty.But, because Mr Akuhata mentioned that at the 17 March 2015 meeting, each ofMs Cull, Mr Dooney and Ms Dakers was aware of that. We are confident that, ifMs Cull considered Mr Akuhata had come under undue pressure, she would have actedaccordingly. Before us, she was adamant in her view that that was not the position.This challenge to the plea cannot succeed.Other errors on Ms Cull's part?[116] Mr Ellis submitted Ms Cull had erred in failing to "alert" Asher J to the factthat he should not sit, and in failing to advise the Judge of the various matters set outin [102] above, so the Judge could "verify" Mr Akuhata's guilty plea. For the reasonswe have already given, we do not accept these criticisms.[117] Next, Mr Ellis submitted that Ms Cull had failed to advise Mr Akuhata as tohis available defences and had failed to investigate the effects of Mr Akuhata's drinksbeing "spiked" on the night he killed Ms Edwards. Mr Ellis' written submissionsidentified the available defences as:(a) Mr Akuhata did not cause Ms Edwards' death: she was not dead whenhe left her in the stream.(b) Ms Edwards' death was an accident.(c) Self-defence.(d) Temporary insanity.(e) Automatism.[118] We deal first with Mr Ellis's criticism of Ms Cull in relation to the "spiked"drinks. As Ms Cull explained under cross-examination, this suggestion came fromMr Wiki (Mr Akuhata's cousin) and Ms Dominique Wiri (a neighbour) in the evidencethey gave at the s 14 CP (MIP) Act hearing. Both were recounting what Mr Akuhatahad said to them in the course of his admissions that he had killed Ms Edwards bydrowning her in the stream. Neither had observed Mr Akuhata's drinks being"spiked"; neither had been at the nightclub with Mr Akuhata and Ms Edwards.As Mr Akuhata and Ms Edwards were at the nightclub together, and not in a group, itis inherently unlikely that someone else "spiked" Mr Akuhata's drink or drinks.Mr Akuhata's account to Mr Wiki suggested some "dudes" who had been looking athim and talking about him had "offered [Mr Akuhata] two glasses of Coke, bothspiked". There is also the evidential difficulty that the sample of Mr Akuhata's bloodtested by the ESR contained no traces of alcohol or drugs. Mr Ellis dealt with that bysuggesting the testing did not include various "spiking" type drugs then in current use.We have no evidence as to whether or not that is correct. Our view is that the "spiking"suggestion is totally speculative, and we dismiss it.[119] We return now to the five defences suggested by Mr Ellis. Mr Akuhataadmitted he had caused Ms Edwards' death, and that was the finding of the High Courtat the s 9 CP (MIP) hearing. Nothing in the material before us indicates thatMr Akuhata ever suggested Ms Edwards was still alive when he climbed out ofthe stream. We mentioned in [109] above Ms Cull's advice to Mr Akuhata that hecould defend the murder charge on the basis that he had not intended to killMs Edwards. She obviously considered that only that was a tenable defence, and eventhen Mr Akuhata's admissions stood in the way. We agree with Ms Cull's assessment.[120] We consider temporary insanity and automation were equally untenable.They had no evidentiary grounding.[121] Ms Cull's notes of the 17 March 2015 meeting at which Mr Akuhata instructedher that he wished to plead guilty record Mr Akuhata still talking about Ms Edwards'death being an accident, or that he drowned her while trying to save himself.Although Ms Cull's notes are not easy to decipher, what she noted Mr Akuhata assaying seems to us to be discursive and contradictory. It is as if he was still trying topersuade himself that he had not murdered Ms Edwards. But what is unequivocal isthe written instruction to Ms Cull that he signed at the end of that meeting. Andthe inference is obvious: Mr Akuhata accepted that he had not killed Ms Edwardsaccidentally nor in self-defence.[122] We see no error on Ms Cull's part in relation to the defences suggested byMr Ellis.[123] Next, Mr Ellis submitted Ms Cull had erred in "misguidedly substitutingthe use of the court forensic nurse for a Neuropsychologist, or other qualified healthassessor, in her meeting with Mr Akuhata on 17 March 2015 for the purpose ofobtaining a guilty plea, and thereby obtaining one".[124] We referred in [111] above to Ms Cull's reasons for asking Ms Dakers to attendthat meeting. We consider Ms Cull should be complimented rather than criticised fortaking the precaution of having a nurse from the forensic team present.[125] Mr Ellis asked Drs Shaw and Barry-Walsh for their opinion as to whether itwas appropriate to take guilty plea instructions without a defence psychologist orpsychiatrist present, rather than a forensic nurse. Dr Shaw referred to the difficulty ofoffering an opinion so long after the event but did not feel that having a psychiatrist orpsychologist present would have been necessary. Dr Barry-Walsh stated:It would be unusual in my experience for a defence psychologist orpsychiatrist to be present at the point at which counsel take plea instructions.Based on his presentation to me I believe with or without assistance froma forensic nurse, competent counsel would have been able to obtaininstructions, and recognise any limitations in the instructions received fromMr Akuhata.[126] None of the challenges to Mr Akuhata's guilty plea has succeeded.Accordingly, this last but primary ground of appeal also fails.G. Ground 8: Totality[127] Taking the totality of the grounds of appeal, Mr Ellis submitted a substantialmiscarriage of justice had occurred, together with major errors of law, down tothe sentencing. As we have not found merit in any of the individual grounds,this submission also fails.Conclusions on the appeal against conviction[128] This undesirably long judgment is the consequence of our having to addresseight grounds of appeal, raising in all some 21 points. Having done so, we state someoverall conclusions.[129] First, the process followed by the High Court for Mr Akuhata underthe CP (MIP) Act cannot be faulted. It was correctly focussed at each of the twosuccessive stages and was thorough.[130] Second, Mr Akuhata's plea of guilty to the charge of murder he faced cannotbe impugned. No criticism can legitimately be levelled at the Judge who took the plea.Nor at counsel (Ms Cull) who represented Mr Akuhata when he entered the plea.[131] Third, Mr Akuhata was, in our view, exceptionally well served by Ms Cull,who acted for him from shortly after his arrest until after he was sentenced. None ofthe many criticisms levelled at Ms Cull in this appeal has been made out.[132] Fourth, Mr Akuhata has also been well served, in this appeal, by Mr Ellis.Mr Ellis has advanced every point that could legitimately be argued.[133] Fifth, Mr Akuhata should now be satisfied that the criminal justice system hasserved him well and that he rightly faces the sentence imposed on him.[134] Sixth, what has happened emerges with tolerable clarity from the mass ofmaterial placed before us. In a fit of jealous rage Mr Akuhata threw or pushedMs Edwards over the parapet of the bridge into the stream below. He then climbeddown or jumped into the stream and held Ms Edwards' head under the water until shewas lifeless. He made his way home, soaking wet and very upset, and admitted whathe had done to his cousin, his friend and his neighbour. He admitted it again to afellow inmate in prison the next day. But he declined to say anything to the police.[135] As Mr Akuhata recovered from the traumatic head injury inflicted on him inprison four months after he murdered Ms Edwards, Mr Akuhata began struggling,increasingly, with the enormity of what he had done and its consequences.[136] He offered various, and conflicting, accounts to the medical professionals whoexamined him over the succeeding two years.[137] Even at the meeting on 17 March 2015, at which he finally instructed Ms Cullthat he wished to plead guilty to murder, Mr Akuhata was still trying to persuadehimself that Ms Edwards' death was an accident, or that he had killed Ms Edwardsdefending himself. Ms Cull's notes record that. But, after pleading guilty, Mr Akuhataknew he had done the right thing. He said as much to the probation officer whoreported to the sentencing judge.[138] Mr Akuhata made a considered decision not to appeal his sentence.[139] Since then, Mr Akuhata has changed his mind. Confronted with the bleakprospect of at least 15 years in prison, he has compared his sentence with thoseimposed on another or other prisoners convicted of manslaughter. This has led himagain to try and convince himself that he killed Ms Edwards accidentally. These thingsemerge from the reports, particularly the commendably forthright report byDr Barry-Walsh.[140] What has happened is encapsulated exactly in the passage from this Court'sjudgment in Merrilees set out in [7] at the start of this judgment.Sentence appeal[141] Mr Akuhata seeks an extension of time to appeal his sentence. His proposedsentence appeal is some two years out of time. As this Court observed in R v Slavich,extension of time applications routinely reduce to two questions. First, why was theappeal filed late? Second, what, if any, merit does the prospective appeal appear tohave?31[142] The notice of appeal gives two answers to the first question. First, the appealwas filed late due to Mr Akuhata's brain injury and possible intellectual disabilitysince birth. There is no evidence, however, of an intellectual disability. Further, themedical consensus by the time of sentencing was that Mr Akuhata had "largelyrecovered" from his traumatic brain injury and that recovery would continue.32[143] Second, Mr Akuhata "had two previous lawyers who advised no appealgrounds". This could justify an extension of time, even at this very late stage, if anyof the appeal points appears to have merit.31 R v Slavich [2008] NZCA 116 at [14]. The Court in Slavich was summarising the effect ofits earlier decisions in R v Knight [1998] 1 NZLR 583 at 587–589, R v Lee [2006] 3 NZLR 42 at72–73 and R v Davis [2007] NZCA 577 at [9]–[13].32 Dr Barry-Walsh's words.[144] In terms of those merits, Mr Ellis had relatively little to say. He explained thathe had focussed on the appeal against conviction, which he had hoped would succeed,rendering any appeal against sentence superfluous. He suggested the Court mightaccept further submissions, or call for a further report, in respect of sentence if itdismissed the appeal against conviction.[145] The answer to that suggestion is no. The attempt to appeal against sentence isalready two years out of time and we decline to delay consideration further.[146] As it stands, there are two points to the proposed sentence appeal. First, havingnoted Mr Akuhata's mental difficulties, Ellis J did not allow any discount to reflectthose difficulties. While it would have been preferable for the Judge to have declinedto do that expressly, explaining her reasons, she was entitled not to give a discount.Although Ms Cull had submitted to Ellis J that Mr Akuhata's mental difficulties wouldmake prison tougher for Mr Akuhata, she could not point to medical evidencesupporting that. As noted, in [142] above, the medical consensus was that Mr Akuhatahad "largely recovered" from his traumatic brain injury and that recovery wouldcontinue. His pre-injury mild mental impairment was not atypical of many otherprisoners. Accordingly, this point would not succeed.[147] Second, it is submitted Ellis J should have called for a report under s 27 ofthe Sentencing Act 2002. The relevant part of that section provides:27 Offender may request court to hear person on personal, family,whanau, community, and cultural background of offender(1) If an offender appears before a court for sentencing, the offender mayrequest the court to hear any person or persons called by the offenderto speak on—(a) the personal, family, whanau, community, and culturalbackground of the offender:(b) the way in which that background may have related tothe commission of the offence:(c) any processes that have been tried to resolve, or that areavailable to resolve, issues relating to the offence, involvingthe offender and his or her family, whanau, or community andthe victim or victims of the offence:(d) how support from the family, whanau, or community may beavailable to help prevent further offending by the offender:(e) how the offender's background, or family, whanau, orcommunity support may be relevant in respect of possiblesentences.[148] At sentencing, Ms Cull did not request Ellis J, pursuant to s 27(1), to hear fromany person or persons. When Ms Cull represented Mr Akuhata at his sentencing, shehad been practising from Kaikohe in Northland for some 14 years. She would havebeen only too aware of the social deprivation among Northland Māori and itsconsequences in terms of criminal offending. As we have noted, Mr Akuhata isa Māori man of Ngā Puhi descent. We think it significant that Mr Ellis did not, incross-examining Ms Cull before us, put it to her that she had erred in not utilising s 27for Mr Akuhata's sentencing.[149] However — and perhaps somewhat inconsistently — Mr Ellis did submit thatEllis J could and should have used her power under s 27(5) to suggest to Ms Cull thatit may assist the Court to hear from a person or persons under s 27. Section 27(5)provides:(5) If an offender does not make a request under this section, the courtmay suggest to the offender that it may be of assistance to the court tohear a person or persons called by the offender on any of the mattersspecified in subsection (1).[150] In his dissent on this s 27 issue, Whata J has referred to this Court's commentson s 27 in Zhang v R.33 He could also have mentioned his own, earlier, judgment inSolicitor-General v Heta,34 which provided context to s 27 and drew attention to itsutility. Heta was referred to, with obvious approval, in Zhang.35[151] We accept that a failure to engage s 27 could provide a proper basis toreconsider sentence, in an appropriate case. But the appellant must provide enough33 Zhang v R [2019] NZCA 507.34 Solicitor-General v Heta [2018] NZHC 2453, [2019] 2 NZLR 241.35 Zhang, above n 33, at [159].information to satisfy the Court that the failure to engage the s 27 process has resultedin the overlooking of matters that may have impacted on sentence. Our main difficultywith Mr Ellis' submission is that he did not seek this Court's leave to file furthercultural/background material pursuant to s 27 for the hearing of this appeal. We mustthus deal with Mr Ellis' criticism of the sentencing judge for not exercising her s 27(5)power without knowing what material the exercise of that power might have produced.[152] Mr Ellis acknowledged during the hearing that "perhaps he should have"obtained a cultural report for the purposes of the appeal. If the conviction appeal wasunsuccessful, he suggested the Court could adjourn the sentence appeal so that a s 27report could be obtained. But Mr Ellis did not, even in a general way, indicate whatpersonal or cultural information he believed had been overlooked: information thatwould have materially impacted on the sentencing outcome.[153] None of the many medical reports to the High Court, nor the pre-sentencereport, contains any suggestion that Mr Akuhata's criminal offending had its genesisin social deprivation or in any other matter that might have come to the fore in materialadduced under s 27. The medical reports do mention problems with illicit drugs,including methamphetamine, and with alcohol.[154] This Court now has three further medical reports prepared for this appeal.In the report of Dr Barry-Walsh there is a detailed account of Mr Akuhata'sbackground from the time he was a young child, up to the time he murderedMs Edwards. This background includes Mr Akuhata describing his home and familylife as "good", and denying any exposure to domestic violence or abuse, except whenan uncle came to stay and there were fights between the uncle and the uncle'sgirlfriend. The background also records that both Mr Akuhata's parents worked, hisfather as a truck driver and his mother as a caregiver. There is reference also toMr Akuhata's education: he was happy at school despite having learning difficulties.He denied any bullying. He then went on to a regional training centre and had variousjobs, although he observed that he had problems keeping a job.[155] It is also apparent that Mr Akuhata has had the support of his family,particularly his mother, throughout his lengthy journey through the criminal justicesystem in respect of the charge of murdering Ms Edwards. Dr Barry-Walsh's reportrecords at some length information provided to him by Mr Akuhata's mother.[156] In referring to the medical reports, we are not to be taken as suggesting theysubstitute adequately for material under s 27. Rather, they may explain why neithercounsel nor the Court at sentencing considered resort to s 27 might assist.[157] But the overriding point about Mr Akuhata's sentence is that it is not manifestlyexcessive. Life imprisonment was mandatory, so only the minimum non-parole periodof 15 years could be challenged. We do not consider it can be, because it appropriatelyreflected the discount that was properly available to Mr Akuhata for his guilty plea.[158] All these points combine to compel the conclusion that the proposed appealagainst sentence is without merit. Accordingly, we refuse the application for anextension of time to appeal sentence.WHATA J[159] I agree with Wild and Katz JJ in all respects, save that I would have affordedMr Akuhata an opportunity to file evidence dealing with the s 27 matters prior toresolving his application for leave to appeal sentence out of time. Section 27 enablesan offender to present background information to the sentencing judge. A sentencingjudge may also suggest to an offender that information on the matters specified atsubs (1) may be of assistance to the court. The potential utility of s 27 was recentlyhighlighted by the full Court of Appeal in Zhang in this way:36[159] First, ingrained, systemic poverty resulting from loss of land,language, culture, rangatiratanga, mana and dignity are matters that may beregarded in a proper case to have impaired choice and diminished moralculpability. Where these constraints are shown to contribute causatively tooffending (whether associated with addiction or not), they will requireconsideration in sentencing.36 Above at n 33, at [159]–[162].[160] Secondly, distinct rehabilitative and reintegration considerationsapplicable to Māori that make use of the power in s 25 of the Sentencing Actto adjourn sentencing to enable rehabilitative programmes to be undertakenare particularly relevant. .[161] Thirdly these are matters where the right to address the court onpersonal, family, whānau, community and cultural background and supportunder s 27 of the Sentencing Act is clearly relevant.[162] Fourthly, social, cultural or economic deprivation that has ademonstrative nexus with the offending may be presented in mitigationregardless of the specific ethnicity of the offender. Likewise, the toolsavailable in ss 25 and 27 are there for use by any relevant offender.(emphasis added)[160] The full Court's reference to an offender's "right" to address the courtemphasises the importance of the s 27 process to the sentencing. For my part then,the failure to engage s 27 may provide a proper basis for reconsideration of sentenceby this Court on appeal. It also evident that Ms Cull did not request Ellis J pursuantto s 27(1), to hear from any person or persons and Ellis J did not suggest that it wouldassist her to hear from such persons. It seems to me then that there is a real issue tobe considered on appeal, namely whether the sentencing process was procedurally andsubstantively unfair to Mr Akuhata because of the apparent omission to engage s 27.[161] I acknowledge that, unhelpfully, we do not know what material the exercise ofpower might have produced. I also acknowledge that the information available tothe Court suggests that the omission may not be material to the result for the reasonsexpressed by Wild and Katz JJ at [157]. And it counts strongly against Mr Akuhatathat he has not already identified the s 27 information he says was and is relevant tohis sentence. But given the procedural as well as substantive significance of the s 27process to sentencing, as affirmed by the full Court in Zhang, the added burden tothe Crown and to the Court of affording Mr Akuhata the opportunity to identifythe relevant s 27 matters is in my view justified.Result[162] The application for an extension of time to appeal against conviction is granted.[163] The appeal against conviction is dismissed.[164] The application for an extension of time to appeal against sentence is refused.Solicitors:Crown Law Office, Wellington for Respondent