CHRISTIE v NEW ZEALAND POLICE [2018] NZHC 2149

CHRISTIE v NEW ZEALAND POLICE [2018] NZHC 2149 [21 August 2018]IN THE HIGH COURT OF NEW ZEALANDAUCKLAND REGISTRYI TE KŌTI MATUA O AOTEAROATĀMAKI MAKAURAU ROHECRI-2017-404-327[2018] NZHC 2149BETWEEN LAWRENCE CHRISTIEAppellantAND NEW ZEALAND POLICERespondentHearing: 13 August 2018Appearances: G H Vear for AppellantK Li for RespondentJudgment: 21 August 2018JUDGMENT OF LANG J[on application for leave to appeal against conviction]This judgment was delivered by me on 21 August 2018 at 3.30 pm,pursuant to Rule 11.5 of the High Court Rules.Registrar/Deputy RegistrarDate[1] Mr Christie is 44 years of age, and suffers from an intellectual disability. Hehas numerous criminal convictions, the earliest of which relates to offending in 1995.Ms Vear argues on his behalf that he has been unfit to plead or stand trial throughoutthe period from 1995 until the present day. She therefore applies on Mr Christie'sbehalf for leave to appeal out of time against all convictions on that ground. Shecontends leave should be granted under s 123(1) of the Summary Proceedings Act1957 and s 231(3) of the Criminal Procedure Act 2011.The application for leave to appeal out of time: relevant principles[2] The principles that apply to an application for leave to appeal out of time arewell established. They were enunciated in R v Knight1 and confirmed in R v Lee.2 Inshort, the touchstone is the interests of justice having regard to the relevantcircumstances of the case.[3] This requires the Court to weigh the wider interest of society in the finality oflitigation against the interests of the applicant in question. Other factors that may berelevant to the overall balancing exercise include the strength of the proposed appeal,the practical utility of the remedy sought, the length and reasons for the delay, theimpact on other persons similarly affected and the possible prejudice for theprosecution.3The substantive appeal[4] Unsurprisingly, many of the Court and police files relating to Mr Christie'shistoric offending cannot now be located. It is therefore no longer possible to ascertainwhether he pleaded guilty to, or was convicted following a defended hearing on, thecharges to which the proposed appeal relates.[5] To the extent that the appeal relates to charges to which Mr Christie enteredguilty pleas, the principles are well established. In R v Le Page, the Court of Appealobserved:41 R v Knight [1998] 1 NZLR 583 (CA).2 R v Lee [2006] 3 NZLR 42 (CA).3 R v Knight, above n 1, at [99].4 R v Le Page [2005] 2 NZLR 845 (CA) at [16].[I]t is only in exceptional circumstances that an appeal against conviction willbe entertained following entry of a plea of guilty. An appellant must show thata miscarriage of justice will result if his conviction is not overturned. Wherethe appellant fully appreciated the merits of his position, and made aninformed decision to plead guilty, the conviction cannot be impugned. Theseprinciples find expression in numerous decisions of this Court, of which R vStretch [1982] 1 NZLR 225 and R v Ripia [1985] 1 NZLR 122 are examples.[6] In Cumming v R, the Supreme Court observed that a court is not empoweredto make a formal finding of unfitness to plead or stand trial on a general appeal.5 Acourt may, however, conclude that a defendant has suffered a miscarriage of justicedue to mental illness and likely unfitness at the time of trial.6[7] Before considering the factors relevant to the exercise of the discretion in thepresent case, it is useful to briefly consider the legislative history of the power vestedin the courts to declare a defendant unfit to stand trial.Fitness to stand trial: legislative history[8] In 1969 Parliament amended the Criminal Justice Act 1954 to enable the courtsto find a defendant unfit to stand trial where he or she was mentally disordered andunder a disability. These provisions were subsequently carried through to s 108 of theCriminal Justice Act 1985 (CJA). A defendant could only be found unfit to stand trialunder s 108 of the CJA where the Court was satisfied the defendant suffered from amental disorder.[9] On 1 November 1992, the Mental Health (Compulsory Assessment andTreatment) Act 1992 (the Mental Health Act) introduced a new definition of the term"mental disorder" for the purposes of s 108. That definition remains in place today:7mental disorder, in relation to any person, means an abnormal state of mind(whether of a continuous or an intermittent nature), characterised bydelusions, or by disorders of mood or perception or volition or cognition, ofsuch a degree that it—(a) poses a serious danger to the health or safety of that person or ofothers; or5 Cumming v R [2008] NZSC 39, [2010] 2 NZLR 433 at [13].6 At [13].7 Section 2(1).(b) seriously diminishes the capacity of that person to take care of himselfor herself; —and mentally disordered, in relation to any such person, has a correspondingmeaning.[10] Importantly, however, s 4(e) of the Mental Health Act expressly excludes"intellectual disability" from being a mental disorder for the purposes of Parts 1 and 2of the Act.8 As a result, the concept of mental disorder under the CJA focussed onpsychiatric disorder rather than intellectual disability.9 A defendant who wasintellectually disabled, but not mentally disordered, would fall outside the scope of thelegislation. This meant that a defendant who would otherwise be found unfit to standtrial was nevertheless precluded from such a finding because the source of his or herlack of competence was an intellectual disability rather than a mental disorder.[11] The Criminal Procedure (Mentally Impaired Persons) Act 2003 (the CPMIPAct), came into force on 1 September 2004 and repealed s 108 of the CJA. The newAct replaced the term "mentally disordered" with the broader term "mentallyimpaired". Although "mentally impaired" is not defined in the CPMIP Act, the courtshave held that the term captures both mental disorder and intellectual disability, aswell as other forms of mental impairment.10[12] In Nonu v R, the Court of Appeal described the new regime, and the reasonsfor it, as follows:11[25] The CPMIP Act introduced a new regime for determining if adefendant is fit to stand trial. The definition of unfitness to stand trial in s 4 ofthe CPMIP Act differs from the test previously contained in s 108 of theCriminal Justice Act 1985, which was only engaged if a defendant was foundto be mentally disordered under the Mental Health (Compulsory Assessmentand Treatment) Act 1992. Parliament's intention when it passed the CPMIPAct was to broaden the qualifying criteria for assessing whether or not adefendant is unfit to stand trial by including persons who are mentallyimpaired through, for example, an intellectual disability, a personality disorderor a neurological disorder. Parliament wanted to ensure persons withintellectual disabilities, personality and neurological disorders, and otherconditions were not forced to stand trial in circumstances where doing sowould offend the following principles.8 Between 1 November 1992 and 31 March 2000, the wording of section 4(e) of the Mental Health(Compulsory Assessment and Treatment) Act 1992 was "intellectual handicap".9 T v New Zealand Police HC Wellington CRI-2007-485-37, 17 March 2009 at [86].10 See R v H [2014] NZHC 1423 at [9].11 Nonu v R [2017] NZCA 170.[26] There are three key principles underpinning the fitness to stand trialrequirements of the CPMIP Act. First, the requirements promote fairness to adefendant by protecting his or her rights to a fair trial and to present a defence.Second, the requirements also promote the integrity and legitimacy of thecriminal justice system by only holding defendants accountable if theyunderstand the reasons why they have been prosecuted, convicted andpunished. Third, the requirements enhance society's interest in having areliable criminal justice system by not placing on trial defendants who,through lack of fitness, are unable to advance an available defence.(footnotes omitted)The inherent jurisdiction to set aside convictions where the defendant was not fitto plead or stand trial when the convictions were entered[13] Ms Vear contends the Court should use its inherent jurisdiction to reconsiderthe issue of Mr Christie's fitness to plead. She relies on a line of authority in both thisCourt and the Court of Appeal confirming that the Court has inherent jurisdiction toset aside historic convictions where the evidence demonstrates the defendant was unfitto plead or stand trial when the convictions were entered.[14] In R v L, the Court of Appeal observed that the requirement that a defendant befit to stand trial was fundamental to New Zealand's criminal justice system.12 Theright to a fair trial is affirmed in s 25(a) of the New Zealand Bill of Rights Act 1990.The Court said it was "self evident that a trial will not be fair if the accused suffersfrom a disability which prevents him or her from effectively defending him orherself".13 The Court accepted, however, that the existence of the Court's inherentjurisdiction to stay a proceeding on the ground that a defendant was not fit to plead orstand trial needed to be reconciled with the express statutory regime prescribed by theCJA.14 The occasions on which the Court would find it necessary to grant a stay forthis reason would therefore necessarily be rare.[15] In Lawler v R, the appellant sought leave to appeal in 2013 against convictionsthat had led to the imposition of a sentence of preventive detention in 1994.15 He alsosought leave to appeal against other convictions entered between 1987 and 1990. Asin the present case, the fact that the appellant was intellectually disabled meant he12 R v L [1998] 2 NZLR 141 (CA) at 144.13 At 144.14 At 146.15 Lawler v R [2013] NZCA 308.could not be considered unfit to stand trial in terms of the CJA. His counsel arguedthat the appellant was nevertheless not fit to stand trial between 1987 and 1994, andfor that reason did not receive a fair trial.[16] The Court of Appeal noted16 that counsel agreed, relying upon R v L,17 that,where the regime under s 108 did not apply because the defendant suffered fromintellectual disability, the High Court could invoke its inherent jurisdiction to grant astay where a fair trial was not possible. The Court said it was not necessary to expressa view on that issue.18 It also said, however, that if the inherent jurisdiction under R vL is applied, it is not necessary for the defendant to have an intellectual disability asdefined. Rather, the issue is whether the defendant lacks the capacity described in s108 of the CJA.19[17] The appeal in Lawler ultimately failed, however, because the Court hadconcerns regarding the validity of a psychiatrist's conclusion that her assessment ofthe appellant in 2012 provided a proper basis for a decision regarding his fitness tostand trial many years earlier.20 The Court considered it was necessary to have regardto contemporaneous evidence, and that which existed did not provide an evidentialbasis for interfering with the processes carried out at the time.21 Although leave toappeal was granted, the appeal was dismissed.[18] There are now several decisions of this Court, however, in which the Court hasquashed convictions where it was satisfied the appellant's intellectual disabilityprevented him from participating sufficiently in the trial process.[19] In Leapai v Police, Potter J set aside 14 separate convictions entered betweenMay 2002 and November 2010.22 These related to offending that had occurredbetween December 2001 and November 2010. Three of the convictions were enteredprior to 1 September 2004, when the CJA was still in force.16 At [11].17 R v L, above n 12.18 At [11].19 Lawler v R, above n 15, at [9].20 At [55].21 At [60]-[63].22 Leapai v New Zealand Police [2012] NZHC 708.[20] Potter J referred to Australian23 and English24 authorities in which the courtsset aside convictions where the offender had pleaded guilty to charges incircumstances where he was clearly unfit to plead or stand trial. Potter J agreed withboth the appellant and the Crown that it was appropriate to set aside the convictionsgiven the "unique circumstances of [the] case", and the fact that the expert clinicianswere unanimous that the appellant had never been, and was unlikely ever to be, fit tostand trial.25[21] In RC v Police, Woolford J followed the approach taken by Potter J in Leapai.26The appellant in that case was convicted on a charge of indecently assaulting a nineyear old girl in 2005. He had subsequently been found unfit to stand trial under theCPMIP Act on three separate occasions after being charged with similar offending.The Crown agreed the conviction for the 2005 offending should be set aside on theground that the appellant was clearly unfit to stand trial at the time the conviction wasentered.[22] Similarly, in Paraha v Police, Palmer J set aside a conviction for wilful damageentered in 2015 following a guilty plea to offending that had occurred the previousyear.27 As in RC v Police, the offender had subsequently been charged with otheroffending and found unfit to stand trial on those charges under the CPMIP Act. TheCrown agreed it was open to the Court to infer a miscarriage of justice had in alllikelihood occurred in relation to the earlier offending.[23] In Wilkinson v Police the appellant had pleaded guilty to a charge of indecentlyassaulting a 16 year old girl in January 2012.28 He was subsequently charged withsimilar offending in 2016 but found unfit to stand trial under the CPMIP Act. Thepsychiatrists who assessed the appellant as being unfit to stand trial in 2016 were thenasked to consider whether he was also likely to have been unfit to plead to the chargein 2012. They prepared a joint opinion confirming that in their view the extent andseverity of the appellant's impairments with regard to his understanding of the legal23 R v AAM, ex parte Attorney-General [2010] QCA 305.24 R v Walton [2010] EWCA Crim 2255.25 Leapai v New Zealand Police, above n 22, at [26].26 RC v New Zealand Police [2014] NZHC 1267.27 Paraha v New Zealand Police [2017] NZHC 2001.28 Wilkinson v New Zealand Police [2017] NZHC 1737.process were such that on balance he probably would have been unfit to stand trial in2012. This evidence persuaded Churchman J that a miscarriage of justice had occurredin relation to the 2012 charge, and he quashed the conviction.29Factors suggesting leave should not be granted[24] Several factors suggest leave should not be granted. The most obvious of theseare the age and number of the convictions. Mr Christie sustained 39 convictionsbetween 25 September 1995 and 22 October 2015 as follows:301995 - 11996 - 41997 - 51998 - 51999 - 12000 - 32001 - 92002 - 12003 - 12004 - 32006 - 42015 - 2[25] There has obviously been very significant delay in lodging the appeal becauseit relates to convictions entered between 3 and 23 years ago. The bulk of these wereentered between 1997 and 2001, when Mr Christie was aged between 22 and 26 years.Mr Christie has not provided any reason for his delay in filing the application for leaveto appeal. Ms Vear advises me, however, that his counsel decided to seek leave toappeal on his behalf after they became aware of the circumstances leading toMr Christie being declared unfit to stand trial in 2016.[26] An application for leave to appeal against convictions entered such a long timeago also brings into play the principle that there needs to be finality to litigation.Society expects that sentencing decisions made in the distant past will not be disturbedwithout good cause. Furthermore, Mr Christie completed serving the sentencesimposed as a result of the convictions many years ago. He will gain little in practical29 At [46].30 Using in each case the date on which Mr Christie was sentenced.terms from the proposed appeal other than the removal of the convictions from hiscriminal history.[27] In addition, the Crown is undoubtedly prejudiced to a significant degreebecause the police files relating to the charges that led to the convictions are no longeravailable. The court files are also no longer available. The Crown is thereforeprevented from providing the Court with information regarding the circumstances inwhich the convictions were entered and, in particular, the extent to which Mr Christiereceived legal advice before he pleaded guilty to the charges.[28] All these factors suggest leave to appeal out of time should not be granted. Aswill often be the case, however, the merits of the proposed appeal are also veryimportant.The merits[29] I propose to separately consider the merits of the application for leave to appealin relation to the convictions that were entered whilst the CJA was in force and thosethat relate to the period after the CPMIP Act came into force on 1 September 2004.A. Convictions entered prior to 1 September 2004[30] All but six of Mr Christie's previous convictions were entered prior to theCPMIP Act coming into force on 1 September 2004. They relate to offending thatoccurred at regular intervals between 1995 and 2004. Much of this involved acts orthreats of violence directed by Mr Christie towards his partner or members of hisfamily. Mr Christie also has convictions sustained during this period for burglary,wilful damage, possession of an offensive weapon and disorderly behaviour.[31] Ms Li for the Crown submits, correctly, that the issue of whether Mr Christiewas fit to plead when these convictions were entered is necessarily fact and contextspecific. She points out that the proposed appeal relates to numerous charges, and theCourt is being asked to determine whether Mr Christie's intellectual disabilityprevented him from receiving a fair trial on each. Ms Li submits it is not possible forthe Court to undertake that analysis on the evidence presently available. In particular,she contends the Court does not have sufficient material before it to make an informeddecision as to whether Mr Christie was able to participate sufficiently in the trialprocess on each charge that led to a conviction to prevent a miscarriage of justice fromoccurring.[32] I agree with this submission in that I acknowledge there are significant gaps inthe factual material before the Court. In particular, there is no way of knowing whetherMr Christie pleaded guilty to the charges on which he was convicted between 1995and 2004 or the advice he received before doing so.[33] Ms Vear also acknowledges that the issue of Mr Christie's fitness to plead priorto 1 September 2004 was correctly decided in terms of the CJA. This means thedecisions cannot be regarded as erroneous in either law or fact. That concession wouldordinarily preclude an appeal against conviction from succeeding.[34] Ms Vear points out, however, that there are several contemporaneous indicatorsto suggest a miscarriage of justice is likely to have occurred. The first of these is thatMr Christie was sentenced on many of the charges within a short time of the offendinghaving occurred. Many convictions were entered within a few days of the offenceshaving been committed. I accept Ms Vear's submission that this suggests Mr Christieentered guilty pleas to the charges, and was probably represented by a duty solicitorwhen he did so. This increases the likelihood that those who were advising him didnot spend sufficient time with him to recognise that he may not have fully understoodwhat he was doing when he entered his pleas.[35] I also accept Ms Vear's submission that the present case differs in oneimportant respect from many of the others to which I have referred. The assessmentsthat were undertaken between 1994 and 2004 for the purposes of the CJA mean thatcontemporaneous assessments of Mr Christie's mental state are available in the presentcase. The Court is not being asked, as was the case in Lawler, to accept a retrospectivepsychiatric assessment made many years after the event. I therefore see noimpediment in principle to this Court determining, in the exercise of its inherentjurisdiction, whether a miscarriage of justice has occurred because Mr Christie wasconvicted in circumstances where he was not mentally fit to plead or stand trial.[36] Between May 1994 and February 2004 four psychiatrists prepared reports toassist the District Court to determine whether Mr Christie was fit to stand trial underthe CJA on charges then before the Court. These were prepared on 17 May 1994,24 November 1995, 17 October 1996 and 12 January 2004 respectively.31[37] The psychiatric reports prepared between May 1994 and February 2004 wereprovided to the District Court at intervals during the period covered by the historicoffending, and provide a remarkably consistent insight into the extent to which MrChristie's intellectual disability was likely to have affected his ability to plead andstand trial during this period.[38] Each of the psychiatrists concluded Mr Christie suffered from an intellectualdisability likely to have been caused by a traumatic brain injury sustained when hewas five years of age. Each also concluded, however, that although Mr Christie'sdisability was likely to pose considerable problems for him in understanding andresponding to the trial process, he was not mentally disordered for the purposes ofs 108 of the CJA. Each psychiatrist therefore considered he was fit to stand trial.[39] The reports confirm Mr Christie has been subject to an intellectual disabilitysince he was five years of age, and this will not improve or resolve over time. He hasalso suffered from epilepsy, probably caused by or related to the injury to his brain,with seizures being observed from 1993. Fortunately, his epilepsy has responded toregular treatment using medication.[40] Mr Christie was assessed in December 2003 as having an IQ between 40 and54. This is consistent with a moderate intellectual disability. A report prepared inJanuary 2004 stated that his IQ is below that of 99 per cent of persons of the same age.Mr Christie's verbal comprehension was also very poor. His percentile rank under thishead was 0.2. These findings are consistent with observations made in the psychiatricreports prepared nearly ten years earlier.[41] The first psychiatric report, dated 17 May 1994 when Mr Christie was 19 yearsof age, contains the following observations:31 In date order, the reports were prepared by Dr Nannestad, Dr MacKay, Dr Seth and Dr Jeory.I found over the course of the interview that he gave different answers to thesame questions. Murray McKenzie [the supervisor of a hostel where MrChristie had been staying] has noted over the past week that if he is given aleading question he will give the answer he thinks that you want. It is notuncommon for intellectually handicapped people to try and make up for notcomprehending the flow of events by simply giving the answer that they thinkpeople want. For instance, when I asked him if he heard voices when there isnobody present, at one time he replied yes and another time he replied no.I think he is suggestible, which is likely to be a problem in the court. If he isasked a line of questions, especially if he is feeling overawed oruncomfortable, he may simply give answers that he thinks will please thequestioner and so incriminate himself without regard to the truth.His very simple speech is probably a reflection of his thinking. I doubt thathe would have an understanding of the connection between a number ofevents, and so does not have a normal capacity for forethought and reasoningthings out. In particular, I doubt that he would appreciate how his answersthat he gives in the court room might incriminate him or otherwise and lead tothe final verdict and any sentence.Both his mother and Murray McKenzie doubt that he can follow the courtprocedure. He has no idea how to get the services of a lawyer and it is obviousthat someone else will have to take care of him and arrange this for him.As above I think he is able to give his version of the facts to his counsel. Theadded stress of appearing in court might make this more difficult for him,because he seems to me a retiring sort of boy, so I would not predict that hewould be able to give his version of facts on his own behalf in the court.I also think that he is suggestible and so questioning in court by defence andprosecution probably would not yield any useful information, and his repliesin those circumstances would not necessarily bear any relation to the truth. Ithink he would be trying to reply in the way that he thought was required ofhim, rather than being deliberately misleading.Because his comprehension is limited and slow, I doubt he would be able tofollow evidence against him if it was given in the court. Also, I do not thinkthat he would be able to decide himself what defence to offer.[42] The second report, dated 24 November 1995, contains similar comments:Clearly his comprehension is quite limited and quite slow. It would bedifficult I suspect to follow evidence against him if it was given in Court.As the case proceeds and Counsel is assigned, it would be my opinion thatCounsel would be advised to interview him with a great deal of care and beprepared to go over the same ground very carefully, asking the simplest ofquestions and, as noted above, avoiding open-ended questions in favour of achoice between simple options. Lawrence is clearly able to follow this and Iwould have thought in these circumstances answers given, would be closestto the truth.In summary then, with regard to disability, I do think that his intellectualhandicap will cause some degree of difficulty in the Court case. It is myopinion however, as I understand both the Mental Health Act, and the CriminalJustice Act that I do not believe that he is under disability within the precisemeanings of these Acts. This is as helpful as I can be.[43] The next report, dated 17 October 1996, contains similar observations. Underthe heading "Disability", the writer of the report states:I felt that Mr Christie was in fact fit to plead, he understood at a rathersimplistic level the differences between guilty and not guilty and was able tounderstand what he had been charged with. He realised what theconsequences of a conviction of the alleged charge would be and the basicconcept of an oath. He was aware of the purpose of the trial and could identifythe different people within the courtroom. Having said this one had to explainthings to him very slowly for him to understand but in reality it may turn outthat he would have great difficulty in the court to actually follow the procedureand instruct counsel as he tends to understand things at a very basic level andhe would be quite suggestible if asked questions that he did not fullycomprehend due to his intellectual handicap. It may even be possible that MrChristie would answer questions inappropriately as he would feel that it wasthe answer that was required rather than the correct answer. We shall have tosee whether or not he actually copes with the process in court.[44] Seven years later, Mr Christie was charged with threatening to kill, assault witha weapon and contravening a protection order. A report prepared for the purposes ofthe CJA and dated 13 February 2004 confirmed that Mr Christie remained moderatelyintellectually disabled, with an IQ between 40 and 54. When assessing his fitness tostand trial, the report writer observed:3. Re: Legal Disability as defined by Section 108 of the Criminal JusticeActAlthough Mr Christie's presentation is qualified as a moderateintellectual deficiency, special examination related to the issue of legaldisability did not confirm that he did have significant difficulties incomprehending his current legal situation. It is true that hisunderstanding is simplistic and that he requires clarification togetherwith a lot of plain explanations. However, Mr Christie managed toexplain properly the roles of the particular Court officials, to show thathe knew the pleas available to him, that he was able to make adifference between wrong and right, and to discuss possible outcomesof his Court case.On the basis of that examination, I concluded that Mr Christie'spresentation did not satisfy the description and definition of legaldisability as per Section 108 of the Criminal Justice Act.[45] The passages set out above suggest Mr Christie has always had a basicunderstanding of the criminal justice process. This includes the available plea options,the roles of participants in the process and the consequences of conviction. They alsosuggest, however, that it would have been difficult for counsel to have explained thecharges to him and to take instructions from him regarding available defences.Furthermore, although Mr Christie can understand matters that are explained to himin clear and simple terms, the psychiatrists have consistently expressed concernregarding his ability to answer questions in court if he gives evidence.[46] The reports prepared since 1 September 2004 suggest this remains the case.They also give rise to concern regarding the extent to which Mr Christie genuinelyunderstands matters even when they are explained to him in clear and simple terms.By way of example, Mr Christie has numerous convictions for breaching protectionorders. At some stage, and probably on numerous occasions, his counsel must haveexplained to him why he has been charged with that offence. Notwithstanding thisadvice a psychiatric report prepared on 9 May 2008 suggests the fact that Mr Christiecontinues to offend in this way is probably related to his intellectual disability becausehe may not remember or understand the significance of legal conditions.[47] I consider the reports prepared between 1994 and February 2004 support MsVear's submission that Mr Christie's intellectual disability is likely to have resulted inhim entering guilty pleas without properly understanding the nature of the chargesand/or any defences that may have been open to him. That risk is increased by the factthat Mr Christie was convicted and sentenced on many of the charges within a veryshort time of the offending having occurred.[48] To the extent that Mr Christie may have been found guilty on any of the chargesfollowing a defended hearing, there must be a real risk that his intellectual disabilityresulted in him telling those who questioned him in court what he believed they wantedto hear rather than the truth as he remembered it. It follows that I consider amiscarriage of justice is likely to have occurred regardless of whether Mr Christiepleaded guilty to the charges or was found guilty following a defended hearing.[49] These findings effectively answer Ms Li's submission that the Court cannotgrant leave because there is insufficient material available in relation to each of theconvictions the Court is being asked to set aside.[50] The merits of the proposed appeal therefore militate strongly in favour of leaveto appeal being granted in relation to the convictions entered prior to 1 September2004.B The convictions entered after 1 September 2004The 2006 charges[51] The first of Mr Christie's six convictions entered after 1 September 2004 wasfor contravening a protection order on 8 March 2006. He was then arrested andcharged with threatening to kill and contravening a protection order (x2) five dayslater, on 13 March 2006. Mr Christie was convicted and sentenced to two yearssupervision on these charges on 28 April 2006.[52] By the time Mr Christie faced these charges the CPMIP Act was in force butthe offending in 2006 did not trigger the procedures set out in that Act. The speed withwhich Mr Christie was sentenced on the 2006 charges again suggests he must haveentered guilty pleas at an early stage and probably with a minimum of legal advice.[53] Mr Christie was arrested again on or about 2 April 2008 on charges ofcontravening a protection order, threatening to kill and assaulting his partner. Thesecharges triggered the procedures set out in the CPMIP Act for the first time. Dr Loweof Regional Forensic Psychiatry Services concluded in a report dated 9 May 2008 thatMr Christie was not fit to stand trial for the following reasons:3. Re: Fitness to Stand Trial as per Section 4 of the CriminalProcedure (Mentally Impaired Person) Act 2003Based on my interview with Mr Christie I believe that he is not fit tostand trial. However, I accept that this is debatable since it dependson the threshold for this decision. In the past, Mr Christie was alwaysfound fit to stand trial when assessed. However, the legal climate wasdifferent and it was not possible for intellectual disability to contributetowards a definition of legal disability. Furthermore, while he wasalways found fit to stand trial there were concerns raised about hissuggestibility in court and his tendency to give answers based on whathe thought people wanted to hear, rather than based on fact.In my assessment, Mr Christie demonstrated a basic understandingabout the nature of the charges against him, the pleas available,consequences of being found guilty and roles of certain people in thecourt room. However, I was concerned that he did not appreciate thesignificance of the charges laid against him. There was littlereasoning behind his choice of plea and he required muchencouragement to discuss this and his court case in any depth. He alsobecame fatigued and gave up easily when asked to exploreinformation in his caption summary: this appeared to be due todifficulties in comprehending the information and manipulating it. Ialso had concerns about his ability to understand the relevance ofevidence brought against him in a Court trial.In summary, while Mr Christie has a basic understanding of courtprocess I believe he is impaired in his ability to understand andappreciate the complexity of his situation. I am also concerned abouthis ability to comprehend and manipulate information in a Court roomor instruct his counsel because he requires much time, repetition andclarification in order to understand even basic information.[54] As will be evident from the above passage, Dr Lowe accepted her conclusionwas "debatable" because she was not sure how the courts would interpret the thresholdfor fitness contained in the CPMIP Act. Convictions were not subsequently entered,however, for the charges Mr Christie was facing when the report was prepared. It istherefore possible the Court accepted Mr Christie was not fit to stand trial in May2008. On the other hand, there is no evidence that the Court made orders under ss 24or 25 of the CPMIP Act in 2008 as would have been the case if he was found unfit tostand trial. Furthermore, Dr Lowe's report notes that the complainant, Mr Christie'spartner, had asked the police to drop the charges and they may ultimately have beendismissed for that reason.[55] Regardless of the outcome of the charges, I consider Dr Lowe's findings arebroadly consistent with those contained in the earlier reports between 1994 and 2004.I consider that on the balance of probabilities Mr Christie is likely to have been unfitto stand trial in 2006 for the same reasons outlined in the earlier reports and thosegiven by Dr Lowe in her report.[56] I therefore consider a miscarriage of justice is likely to have occurred inrelation to the convictions Mr Christie sustained in 2006.The 2015 charges[57] On 3 September 2015 Mr Christie was sentenced to two months imprisonmenton a further charge of breaching a protection order on 12 August 2015. Following hisrelease from prison Mr Christie was arrested again for breaching his prison releaseconditions on 11 September 2015. On 22 October 2015, he was directed to come upfor sentence if called upon to do so on that charge.[58] The procedures under the CPMIP Act were not triggered by these charges.Given the short space of time between arrest and sentence it is also likely that hepleaded guilty to both charges at an early stage and with the assistance of a dutysolicitor.[59] In or about May 2016 Mr Christie was arrested again and promptly pleadedguilty to charges of contravening a protection order and wilful damage. Thecomplainant in relation to these charges was again his partner. On this occasion theprocedures under the CPMIP Act were triggered, and Mr Christie was subsequentlyfound unfit to plead or stand trial. His guilty pleas were vacated and in January 2017he was the subject of an order making him a care recipient under the IntellectualDisability (Compulsory Care and Rehabilitation) Act 2003. He then received care andrehabilitation in a supervised community setting for the next twelve months before theorder was discharged.[60] Before the 2016 charges were ultimately resolved, the District Court receivedno fewer than five reports prepared by psychiatrists and psychologists who examinedMr Christie for purposes relating to the findings and orders to be made under theCPMIP Act. The observations made in these reports are again consistent in all materialrespects with those made in the reports prepared between 1994 and 2008. Theyconfirm the ongoing impact Mr Christie's intellectual disability continues to have onboth his everyday life and his tendency to offend. An assessment carried out in August2016 revealed that Mr Christie's IQ remains at 43, and is below that of 99.9 per centof his peers.[61] A report dated 16 November 2016 prepared by Dr Clare Brindley, a registeredclinical psychologist, records that Mr Christie has a basic understanding of the trialprocess and the roles of the participants in that process. He also understood theconsequences of being found guilty or not guilty of the charges. However, and inkeeping with the earlier reports, Dr Brindley considers that Mr Christie remainssuggestible, in that he is likely to say what he thinks others expect or want to hear.She believed this may impact on his capacity to participate meaningfully in theproceedings then before the Court.[62] Dr Brindley's conclusion regarding Mr Christie's ability to instruct counsel isas follows:(c) Ability to instruct counsel for the purpose of mounting a defence56. Mr Christie was aware of how to contact his lawyer and knew her firstname, and said he had spoken to his counsel, but said he was not surehow he might construct his defence. Mr Christie has an impairmentthat means he has profound difficulty paying attention to informationand attending to questions posed. He also finds real difficulty in hisability to respond verbally. Due to his deficits, he also experiencesreal difficulties in recollecting / recalling information from short-termand longer-term memory. Mr Christie's cognitive impairments wouldlimit his capacity to follow and recall information provided bycounsel, and follow evidence presented in court so as to assist counselwith his defence.[63] These observations mirror those that have been made consistently by healthprofessionals since 1994. They persuade me that a miscarriage of justice is also likelyto have occurred in relation to the 2015 charges. Mr Christie's fitness to stand trial onthose charges ought to have been determined in the same way as his fitness to standtrial on the 2016 charges.Result[64] I accept without reservation that there are factors suggesting leave to appealshould not be granted. These include the age and number of the convictions to whichthe application relates, the prejudice to the Crown and the principle that there needs tobe finality in litigation. I am satisfied, however, that the material contained in thepsychiatric reports prepared between 1994 and 2016 confirm it is unlikely that MrChristie has been fit to plead for the whole of that period. That factor outweighs thefactors suggesting leave should not be granted because a miscarriage of justice willresult if the convictions are permitted to stand.[65] The application for leave to appeal out of time is therefore granted. The appealis allowed and the convictions on all charges are set aside.Lang JSolicitors:Public Defence Service, AucklandKayes Fletcher Walker, Manukau