TROW v NEW ZEALAND POLICE [2021] NZHC 2585

TROW v NEW ZEALAND POLICE [2021] NZHC 2585 [2 September 2021]IN THE HIGH COURT OF NEW ZEALANDNEW PLYMOUTH REGISTRYI TE KŌTI MATUA O AOTEAROANGĀMOTU ROHECRI-2021-443-005/6/7/8/9/10/11[2021] NZHC 2585BETWEEN REI TROWAppellantAND NEW ZEALAND POLICERespondentHearing: 2 September 2021Appearances: J Hudson for the AppellantJ Bourke for the RespondentJudgment: 2 September 2021JUDGMENT OF GRICE J(conviction appeal)Overview[1] This is a conviction appeal against convictions entered against the appellantbetween 2008 and 2016. The grounds for the appeal relate to miscarriages of justiceon the basis that the appellant was unfit to stand trial at the time. The respondent takesa neutral position on the appeal.1[2] The relevant convictions were entered between 2008 and 2016, for thefollowing offences:(a) obscene language;1 This decision was delivered orally on 2 September 2021. The written version is edited forgrammar and flow with the addition of footnote citations for reference, but the substance remainsthe same.(b) shoplifting (four charges);(c) breach of a local liquor ban;(d) breach of community work; and(e) male assaults female.Factual background and procedural history[3] On 8 April 2003, the appellant was charged with aggravated robbery,kidnapping, and wounding with intent to cause grievous bodily harm. Drs Goodwinand Burgess provided forensic reports on the appellant's mental fitness. The appellantwas found unfit to stand trial following a disability hearing in the District Court andwas ordered to be detained in hospital as a special treatment patient. This order wasappealed, and Mr Trow sought to be dealt with under the Intellectual Disability(Compulsory Care and Rehabilitation) Act 2003 (IDCCRA).[4] An appeal was brought against those convictions and the appeal was allowed.The order for detention as a special patient was quashed.2 The Judge also ordered thatthe appellant be cared for as a care recipient for two years under the IDCCRA.3[5] The convictions under appeal in this case took place between 2008 and 2016.No reports or assessments concerning the appellant's fitness were obtained during thattime.[6] On 13 July 2021, the appellant obtained a report from Ms Visser, aConsultant Clinical and Neuropsychologist, which I detail below. This followed afinding in this Court that the s 38 reports that had earlier been directed at the requestof the appellant and the respondent should not have been ordered, as Mr Trow wasneither on bail nor in custody. For reasons outlined in the relevant minute of Gwyn J2 Trow v Police HC Auckland CRI-2004-404-208, 4 April 2005 ["High Court Decision (2005)"] at[14].3 This was ordered pursuant to s 25(b) of the Criminal Procedure (Mentally Impaired Persons) Act2003, whereas the original order was akin to the stricter detainment at hospital under s 24(2)(a) ofthe Act.there was no jurisdiction to order a s 38 report.4 It was noted that without the relevantreports the Court would be in some difficulty in determining the appeal as, while therehad been a s 38 report carried out for the purposes of the earlier offending, there wasno updating report in relation to the present charges, which had occurred between fiveand 12 years later. The Judge identified two questions:5 First, whether in a case such as this of intellectual disability rather thanmental illness, there is any realistic possibility of the person's conditionchanging and improving over time; and second, what value there might be inan updated assessment as to Mr Trow's condition in 2021 when the Court isconsidering an appeal in relation to the 2008-2016 convictions.[7] On 5 August 2021, Churchman J granted an application for leave to appeal outof time and to adduce further evidence in support of the appeal.6 The further evidenceadduced is the report of Ms Sabine Visser dated 13 July 2021. Ms Visser is aConsultant Clinical and Neuropsychologist in private practice with a part-timeposition as a Senior Clinical/Neuropsychologist at the Auckland Regional ForensicPsychiatry Service (Mason Clinic). She is a specialist in forensic psychology.Ms Visser's assessment[8] Ms Visser conducted a review of the previous reports which had been obtainedin relation to Mr Trow. She noted that mental abilities are tested by both clinicalassessment and individualised, standardised intelligence testing. Mental abilities aremeasured by IQ tests. Essentially, typically, an IQ score of 70 or below represents asignificant cognitive deficit. While early and ongoing intervention may improveadaptive skills through childhood and adulthood and in some cases this intervention"may result in significant improvement of intellectual functioning, such that thediagnosis of intellectual disability is no longer appropriate", the improvement infunctioning is generally a result of a stable, generalised new skill acquisition abilityand is contingent on the presence of supports and ongoing interventions.[9] Mr Trow had been assessed in 1997 by a psychologist as having a full-scale IQestimated at between 80 to 91. A subsequent opinion by Dr Burgess was that this was4 Trow v Police HC New Plymouth CRI-2021-443,5,6,7,8,9,11 23 April 2021 ["Minute of Gwyn J"]at [20].5 At [20].6 Trow v Police [2021] NZHC 2012 at [33].inconsistent with Mr Trow's presentation. He found Mr Trow's functioning was lowerthan this estimation. He concluded Mr Trow suffered from a mild to moderateintellectual disability.[10] In May 2003, Dr Goodwin further reassessed Mr Trow and said that, if tested,he was likely to have a score considerably lower than the estimated IQ of 80 to 91. InNovember 2004, Dr Goodwin reported that Mr Trow was assessed by a psychologistin January 2004 and his full-scale IQ was recorded as being 55 and in the extremelylow range of functioning. Dr Goodwin was of the view that Mr Trow did suffer froman intellectual disability. On the basis of the reports of Dr Goodwin and Dr Burgess,the High Court subsequently ordered that Mr Trow be cared for as a care recipient fortwo years. That order was dated 30 March 2005, but it appears that Mr Trow was nota care recipient and did not receive rehabilitation at that stage.[11] Ms Visser noted the documents she had reviewed indicated that Mr Trow didnot engage in any services over this period. He lived an itinerant lifestyle, as well ashaving substance abuse problems, during that time. Ms Visser noted there had beendifficulty with Mr Trow's communication with probation officers at the interview andan indication from the officer seemed to suggest that Mr Trow did not understand thelegal process.[12] Ms Visser's opinion is that the full-scale IQ reported to be 55 was consistentwith the Goodwin and Burgess reports. She has no data on adaptive functioningtesting in those reports. She noted that Mr Trow's actual IQ was between 52 at thelowest and 60 at the highest. This means that if Mr Trow was tested 10 times; hisactual number (FSIQ) could be anything from 52 to 60. She noted that some variationin scores is accepted due to environmental factors. Ms Visser noted that adaptivefunctioning can change this IQ but that required the individual to have been exposedto an environment that was stable, positive, and focused on teaching adaptivefunctioning. She noted most of the literature indicated that the diagnosis is a lifelongcondition and it cannot be changed. The adaptive changes are not in cognitivefunctioning but relate to how a person uses their cognitive functioning to learn newskills. In this case, while there is no data on Mr Trow learning new skills or practisingthese independently, on the information available to Ms Visser it seems that he hasnever received rehabilitation or lived in a stable environment that offered him theopportunity to acquire adaptive skills. To the contrary it appears that he has lived anitinerant lifestyle with little support and substance abuse problems at least up to 2016.[13] Ms Visser concludes that she is of the opinion that it is "highly unlikely thatMr Trow would have improved so considerably since 2016 that he no longer fulfilledthe criteria of intellectual disability as per the ID (CCR) Act 2003".LawStandard of appeal[14] All the charges, except the male assaults female charge, are determined unders 115 of the Summary Proceedings Act 1957 (SPA),7 and the appeal against the maleassaults female charge is determined under s 232 of the Criminal Procedure Act 2011(CPA).[15] Section 115 of the SPA states:115 Defendant's general right of appeal to High Court(1) Except as expressly provided by this Act or by any other enactment,where a District Court determines any information or complaint,and—(a) Convicts any defendant; or(b) Makes any order, including—(i) An order for the payment for costs; or(ii) An order declining an application for the payment for suchcosts; or(iii) An order for the estreat of a bond,—the person convicted or against whom the order is made may appealto the High Court.(2) In the case of a conviction, the appeal may be against the convictionand the sentence passed on the conviction, or against the convictiononly, or against the sentence only; and, in the case of an order for thepayment of money, the appeal may be against the order and the7 Pursuant to s 397 of the Criminal Procedure Act 2011 (CPA), where the Summary ProceedingsAct 1957 applies to proceedings commenced before the CPA came into effect.amount of the sum ordered to be paid, or only against the amount ofthe sum ordered to be paid.(2A) A person sentenced undersection 28F(4) of the District CourtsAct 1947 to a term of imprisonment or to a fine that does notexceed the maximum term of imprisonment or the maximumfine that may be imposed by a District Court under section 7may appeal to the High Court against the sentence.(3) No appeal against conviction shall be brought until the personconvicted has been sentenced or otherwise dealt with.(4) Every appeal under this section, or under any of sections 115Ato 115DA, is a general appeal[16] Section 232 of the CPA states the following and defines a miscarriage ofjustice:232 First appeal court to determine appeal(1) A first appeal court must determine a first appeal under this subpartin accordance with this section.(2) The first appeal court must allow a first appeal under this subpart ifsatisfied that,—(a) in the case of a jury trial, having regard to the evidence, the jury'sverdict was unreasonable; or(b) in the case of a Judge-alone trial, the Judge erred in his or herassessment of the evidence to such an extent that a miscarriage ofjustice has occurred; or(c) in any case, a miscarriage of justice has occurred for any reason.(3) The first appeal court must dismiss a first appeal under this subpart inany other case.(4) In subsection (2), miscarriage of justice means any error,irregularity, or occurrence in or in relation to or affecting the trialthat—(a) has created a real risk that the outcome of the trial was affected;or(b) has resulted in an unfair trial or a trial that was a nullity.(5) In subsection (4), trial includes a proceeding in which the appellantpleaded guilty.Fitness to stand trial[17] The Supreme Court in Britz v R stated that:8 What both Courts of Appeal were emphasising was simply the practicalproblem of reconstructing later an accused's mental state at trial incircumstances where no one qualified had examined the accused at therelevant time and no one involved in the case at that time (lawyers and thejudge) had perceived there to be a potential difficulty as to fitness to plead orstand trial. That there is a practical difficulty in "later reconstruction" isundeniable. That is not to say the courts generally impose, or the Court ofAppeal in this case imposed, a "high threshold" in these circumstances. Thefact an accused has an intellectual disability, as Mr Britz does, does not meana different test is called for in the post-trial situation. That disability willsimply be another factor to be weighed, as it was weighed by the Court ofAppeal in this case.[18] The Court there, of course, was referring to the difficulty of reconstructing theposition when considering fitness to stand trial following the trial and in the appeal.[19] Under the Criminal Procedure (Mentally Impaired Persons) Act 2003, anappellate court is not making a finding of unfitness, under s 7(1):7 When finding of unfitness to stand trial may be made(1) A court may make a finding under this subpart that a defendant is unfitto stand trial at any stage after the commencement of the proceedingsand until all the evidence is concluded.[20] In Nonu v R, the Court of Appeal made the following observations in relationto convictions for aggravated robbery, having accepted the appellant had anintellectual impairment and was unlikely to have been able to effectively participatein his trial:9[24] Mr Nonu's trial would have been a miscarriage if he was unfit to standtrial because it is a fundamental feature of our criminal justice system that onlythose who pass the threshold of being fit to stand trial are subjected to all thatis entailed in responding to criminal charges.8 Britz v R [2013] NZSC 38 at [6].9 Nonu v R [2017] NZCA 170 at [22] and [24].[21] In Paraha v Police, Palmer J commented on the problems of the retrospectiveassessment of mental fitness by an appellate court. He said:10[23] Retrospective assessments are potentially problematic. As theSupreme Court said in Cumming v R, a court is not empowered to make aformal finding of unfitness to plead or to stand trial on a general appeal. Adifferent statutory regime applies to that. But a court may conclude that anaccused has suffered a miscarriage of justice due to mental illness and likelyunfitness at the time of trial. The statutory regime relevant to unfitness toplead is a recognition by Parliament that it is not right to put someone on trialwhen mental disorder would make the trial unfair.[22] In that case, a window washer kicked a motorist's vehicle causing a crack inthe taillight. Mr Paraha pleaded guilty in June 2015 and was convicted of wilfuldamage and ordered to pay reparation. In 2016, he faced fresh charges, at that times 38 reports were produced, both of which concluded the appellant had an intellectualdisability and he was found unfit to plead. Mr Paraha was made a special carerecipient by the District Court Judge for 12 months.11 An appeal against the 2015conviction was filed. Palmer J held there was a strong inference that could be drawnat the time of the conviction that the appellant was unfit to stand trial, and he set asidethe conviction. No retrial was ordered.12[23] In Leapai v Police, the appellant appealed his criminal history betweenDecember 2001 and November 2010.13 The charges included nuisance, wilfuldamage, possession of an offensive weapon and male assaults female. In 2008,Mr Leapai was found unfit to stand trial in relation to dishonesty offending and wasreleased, given that supported services were in place.14 In 2011 the appellant facedother charges and was again found unfit to plead as a result of an intellectual disability.At the appeal four expert clinicians, who had previously examined the appellant,concluded he had a longstanding and permanent intellectual disability since he was18 years of age, and that if he had been assessed before his other convictions between2001 and 2010, it was "highly likely he would have been found unfit to stand trial".1510 Paraha v Police [2017] NZHC 2001 at [23] (footnotes omitted).11 Under the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003.12 Paraha v Police, above n 10, at [30].13 Leapai v Police [2012] NZHC 708.14 Under the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003.15 Leapai v Police, above n 13, at [15].[24] From the authorities, counsel's submissions and the "unique circumstances",as well as the unanimity of the experts, the Judge set aside the convictions.16 Nofurther order was made as there was an ongoing order that the appellant be cared foras a care recipient.17SubmissionsAppellant[25] In this case counsel for the appellant submits that, given Mr Trow was foundunfit to stand trial in 2005, and had an assessment been completed between 2008 and2011, a similar finding would have been made.[26] He noted the appellant had been previously assessed to have an IQ of 55, in theextremely low range of functioning and noted that in Ms Visser's opinion, it is highlyunlikely his intellectual disability would have improved, especially without asupportive environment. He was therefore unlikely to be fit to stand trial between2008 and 2016, therefore, a miscarriage of justice has taken place.Respondent[27] The respondent takes a neutral position. Mr Bourke noted it would be a matterof judicial assessment for the Court to determine whether there was sufficientinformation to conclude a miscarriage had occurred. However, the respondent doesnot dispute there is an available inference that can be drawn from the evidence ofMs Visser that the appellant had an intellectual disability between November 2008 andJune 2016 and would have been unfit to stand trial.[28] The respondent points to the comparable cases of Paraha v Police andLeapai v Police. The respondent says a distinguishing feature is that in both cases,s 38 reports were prepared shortly after the offending, and the Court was being askedto retrospectively apply findings of fitness. In Leapai, the Court had reports in 2008and 2011 finding the appellant unfit, so could connect the dots that these findings16 Leapai v Police, above n 13, at [26].17 At [27].applied to convictions in the intervening years. Here, the last formal assessment wasin 2004 by Dr Goodwin. However, we have the update from Ms Visser. Whilethe Court is proceeding on the basis of the testing recorded in the 2000 report, in myview the report from Ms Visser joins the dots in relation to the offending with theconvictions under consideration in the present appeal.[29] The respondent also notes that various files relating to Mr Trow's convictionshave been destroyed and so the police do not hold copies.18Analysis[30] While care is needed when making retrospective findings, in this case theevidence before the Court indicates that Mr Trow's IQ is somewhere in the vicinity of55. Ms Visser is of the opinion that it is highly unlikely that Mr Trow's intellectualabilities would have improved considerably since the last comprehensive individualreport was prepared some time ago, and she was of the view it was unlikely that he nolonger fulfilled the criteria for intellectual disability. I have set out her views in somedetail above. Based on her report and analysis, in my view, there is a strong inferencethat Mr Trow was, at the time the convictions for the present offending were entered,suffering a mental impairment and it is strongly likely that he was unfit to stand trial.In those circumstances a miscarriage of justice has occurred, and the convictionsshould be quashed.Remedy/Orders[31] Following the finding of a miscarriage of justice the Court must set aside theconvictions under to s 121(2)(b) of the SPA and, for the male assaults female charge,under s 233 of the CPA. Additionally, under the CPA:(3) The court must also—(a) direct that a judgment of acquittal be entered; or(b) direct that a new trial be held; or(c) exercise the powers under section 234; or18 CRN 0417, CRN 0176, CRN 3523, CRN 3526, CRN 4749, and CRN 0301 were destroyed on 12and 14 February 2017, 19 November 2016, 25 April 2015 and 2 July 2017, respectively.(d) exercise the powers under section 235(2); or(e) make any other order it considers justice requires.(4) The court may also exercise the powers under section 236.[32] The appellant submits it is appropriate for the Court to order a judgment ofacquittal be entered for the male assaults female charge, and there is no utility indirecting a further trial or any other order being made.[33] The respondent notes that no further orders were made in the cases of Parahaand Leapai, which appear to be because the appellants in those cases had supports inplace as a result of unfitness findings and under the provisions of the IDCCRA.[34] The appellant had been made a care recipient for two years from30 March 2005,19 but it is unclear although unlikely, that supports were put in place.Mr Hudson, in his submissions, indicated that Mr Trow was presently supported by aretired psychologist but his community supports and networks were not extensive, thathe had funds or an income from the Ministry of Social Development, and that he hadfaced no charges in the intervening period.[35] Mr Bourke indicated that an option would be to order a retrial for the maleassaults female charge and then a s 38 report would be likely be ordered, which wouldfind the appellant unfit, and the matter would then be disposed of under the CriminalProcedure (Mentally Impaired Persons) Act 2003 (CPMIPA). But that would result insupports being put in place as Mr Trow would become a community care recipient.Analysis[36] The central question is whether an acquittal or retrial should be ordered for thecharge of male assaults female.[37] If there were to be a retrial and a s 38 report ordered that found the appellantunfit to stand trial, he would then be subject to the (CPMIPA) regime. Under the Act,enquiries were to be made to determine the most suitable method of dealing with him19 High Court Decision (2005), above n 2, at [14](e).under s 24 or s 25, and that must include a consideration of all the circumstances andan assessment from one or more health assessors (at least one of whom must be apsychiatrist).20 While enquiries are being made, the appellant can be either bailed toan approved address or remanded to a hospital or secure facility.21 Following thoseenquiries, the court may order the defendant's detention at a hospital as a specialpatient or secure facility as a special care recipient.22[38] If the s 38 report does not find Mr Trow unfit to stand trial, there would be aretrial. That would be a retrial on a charge for which he has already been convicted,and the conviction overturned. This seems very unfair in the circumstances.[39] The Courts in Paraha and Leapai did not order retrials. In my view, thecircumstances here are similar, the only difference being that Mr Trow is not underany form of care, as it seems the appellants were in those cases.[40] While, as the respondent says, it may be that Mr Trow would benefit from somesupport, at the same time, in my view, a retrial would compound the unfairness thathas already occurred. In addition, there would be delays and further rounds ofassessment for Mr Trow, as well as the challenges of further court proceedings.[41] However, the most important factor against the ordering of a retrial is thatwhere the appellant has served the sentence imposed following a conviction it is notappropriate that he be required to face the charges again.23 That point weighs heavilyagainst ordering a retrial.[42] As for the acquittal, I do not propose making an order for an acquittal asthe Court is not saying Mr Trow is free from the criminal charges, nor that he is unfitto stand trial,24 but rather that there had been a miscarriage of justice. While it is openfor the Court to make such an order under s 233, it was not ordered in Paraha orLeapai and I do not consider it appropriate here.20 Criminal Procedure (Mentally Impaired Persons) Act 2003, ss 24(1)(b) and 25(2)–(3).21 Section 23(2).22 Section 24(2).23 R v Webster (1996) 13 CRNZ 561 (CA); and R v Kino [1997] 3 NZLR 24 (CA) at 29.24 Criminal Procedure (Mentally Impaired Persons) Act 2003, s 7(1).Conclusion[43] Therefore, in conclusion, I find there has been a miscarriage of justice inrelation to each of Mr Trow's convictions that are listed between 2008 and 2016 andthose convictions should be set aside.Result[44] I order the convictions be set aside and make no further orders. The appeal isallowed._____________________Grice JSolicitors:Crown Solicitor, Ngāmotu | New Plymouth for Respondent.