J v THE NEW ZEALAND POLICE [2022] NZHC 223

J v THE NEW ZEALAND POLICE [2022] NZHC 223 [18 February 2022]ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS,OCCUPATION OR IDENTIFYING PARTICULARS OF APPELLANTPURSUANT TO S 200 CRIMINAL PROCEDURE ACT 2011. SEEhttp://www.legislation.govt.nz/act/public/2011/0081/latest/DLM3360346.htmlIN THE HIGH COURT OF NEW ZEALANDNAPIER REGISTRYI TE KŌTI MATUA O AOTEAROAAHURIRI ROHECRI-2021-441-40[2022] NZHC 223BETWEEN Mr JAppellantAND THE NEW ZEALAND POLICERespondentOn the PapersCounsel: E J Forster for the AppellantC R Stuart for the RespondentJudgment: 18 February 2022JUDGMENT OF GWYN J[1] Counsel for the respondent has filed a memorandum dated 21 December 2021,which was put before me as Duty Judge.[2] On 5 December 2018 the appellant, J, pleaded guilty to charges of indecentassault, indecent exposure, and unlawfully getting into a motor vehicle (the 2018offending). He was given a first strike warning. On 22 March 2019 J was sentencedto community detention and intensive supervision.[3] On 26 November 2021, the appellant filed an appeal against conviction on thegrounds of counsel error, being failure to provide advice on a plea of not guilty basedon legal insanity, under s 23 of the Crimes Act 1961 (the appeal).[4] Counsel advises that the genesis of the appeal was a 2021 charge against J ofthreatening to kill members of a Muslim mosque in April 2021. Forensic reports wereobtained addressing his fitness to stand trial and the availability of an insanity defence.J was ultimately found not guilty by reason of insanity.[5] Since the appeal was filed, appellant's counsel has obtained further informationfrom trial counsel who represented the appellant in the 2018 proceeding, an affidavitfrom the appellant's mother with supporting evidence and a further report fromDr Justin Barry-Walsh, a forensic psychiatrist, who has retrospectively assessedwhether the defence of insanity would have been available to J for the 2018 offending.[6] Dr Barry-Walsh's report, dated 15 December 2021 states, in relevant part:It can be stated with clinical certainty that at the time of the offending [J] wassuffering from a disease [of] the mind. He has a psychotic illness and herequired admission immediately afterwards. He was floridly disturbed at thepoint of admission. [J] struggled to give a clear description of his motivationsbut there is evidence he was incorporating at least one of the victims into hisdelusional state.. There are several pathways by which his serious mentalillness may have driven the offending. His elevated mood is likely to havebeen associated with disinhibition and an increase in libido as evidenced bysexually disinhibited behaviour subsequently on the ward. He may have haddelusional beliefs and psychotic experiences that were directing his behaviourand leading him to believe that the victims may have invited his actions.Finally, he was disorganised in his thoughts and thus his capacity to reason asthe moral wrongfulness of his actions was decreased. For these reasons,noting the difficulties because of the elapse of time and that it is a decision forthe Court to make, it would be my view that on balance [J] would have had adefence of insanity for these charges.[7] Counsel for the respondent submits that there is an appreciable risk that at thetime of the appellant's guilty plea to the 2018 offending, a defence of insanity mayhave been available. It is clear from the material available that the possibility of sucha defence was not brought to the attention of the appellant or the Court and that, if ithad been, the necessary assessments under the Criminal Procedure (Mentally ImpairedPersons) Act 2003 (CPMIP Act) would have been engaged.[8] For those reasons the respondent submits there has been a miscarriage ofjustice, the appeal should be allowed and the matter remitted back to the District Courtfor further consideration under the CPMIP Act. Counsel suggest that anotherpsychiatric report may be appropriate to retrospectively assess whether a defence ofinsanity is available for the 2018 charges.Result[9] On the basis of the material before me and counsel's submission I am satisfiedthat a miscarriage of justice has occurred. I allow the appeal. The matter is remittedback to the District Court for further consideration under the CPMIP Act.Gwyn JSolicitors:Crown Solicitor, NapierCopy to:Mr Forster, Hastings