TROW v NEW ZEALAND POLICE [2021] NZHC 2012

TROW v NEW ZEALAND POLICE [2021] NZHC 2012 [5 August 2021]IN THE HIGH COURT OF NEW ZEALANDNEW PLYMOUTH REGISTRYI TE KŌTI MATUA O AOTEAROANGĀMOTU ROHECRI-2021-443-5,6,7,8,9,10,11[2021] NZHC 2012REI TROWvNEW ZEALAND POLICETeleconference: 5 August 2021Counsel: J Hudson for AppellantJ E Bourke for RespondentJudgment: 5 August 2021JUDGMENT OF CHURCHMAN JIntroduction and background[1] Mr Trow has filed a notice of appeal against convictions entered against himbetween 2008 and 2016, for the following offences:(a) obscene language;(b) shoplifting (four charges);(c) breach of a local liquor ban;(d) breach of community work; and(e) male assaults female.[2] In 2003, Mr Trow faced charges of aggravated robbery, kidnapping, andwounding with intent to cause grievous bodily harm. He was found to be unfit to standtrial, and an order was made that he be detained in hospital as a special patient.However, following an oral ruling from Judge Blackie that Mr Trow appeared to besuffering from an intellectual incapacity rather than from an actual mental illness,Mr Trow appealed the decision that he be detained in hospital as a special patient.[3] On 30 March 2005, Nicholson J made formal orders quashing the decision thathe be detained in hospital as a special patient under the Mental Health (CompulsoryAssessment and Treatment) Act 1992, and instead found that Mr Trow was mentallyimpaired and unfit to stand trial.1[4] Nicholson J also ordered that pursuant to s 25(b) of the Criminal Procedure(Mentally Impaired Persons) Act 2003 (CPMIP), Mr Trow be cared for as a carerecipient under the Intellectual Disability (Compulsory Care and Rehabilitation) Act2003 for a period of two years.[5] Mr Trow's appeal appears to be brought on the grounds that because he wasfound unfit to stand trial in 2005 due to his intellectual impairment, he likely remainsintellectually impaired, including during his spate of offending between 2008 and2016. As a result of this, his position is that there has been a miscarriage of justice forthe convictions entered during the period that he was unfit to stand trial.[6] When Mr Trow's current appeal was filed, on 24 March 2021, Grice J directedthat two reports be obtained under s 38(1)(a) of the CPMIP Act. Following this, anissue arose as to whether this Court actually had jurisdiction to order a report in thecurrent case. Counsel were invited to provide submissions addressing this point.[7] Gwyn J heard these submissions via telephone conference on 31 March 2021and issued a minute on 24 April 2021. In that minute, her Honour held that the Courtdid not have jurisdiction to order an s 38 in respect of Mr Trow, given that he hadserved all sentences previously imposed on him, and was not on custody or on bail.1 See Trow v New Zealand Police HC Auckland CRI-2004-404-208, 30 March 2005.She also considered whether the Court would be assisted by a further s 38 report beingprivately obtained by Mr Trow. Her Honour noted:If no updated report is obtained, the Court will be required to make anassessment of Mr Trow's fitness to plead based on a historical report. If anupdated report is obtained, the Court will be required to make a retrospectiveassessment as to Mr Trow's condition in the period 2008-2016. Plainly bothoptions have disadvantages.[8] However, she also observed that counsel had agreed that it would be useful, inthe first instances, to attempt to obtain an expert view on the preliminary questionwhether an intellectual disability such as Mr Trow's, rather than a mental illness, iscapable of "improvement". Accordingly, Gwyn J adjourned the appeal to allowMr Hudson to make those inquiries.[9] An expert report on that preliminary question was given by Dr Sabine Visser(a consultant clinical and neuropsychologist and special forensic psychologist) on13 July 2021. Dr Visser assessed the psychological reports that had been givenregarding Mr Trow from 1997 onwards, and concluded that, based on this information,his IQ on a 95 per cent confidence level was between 52 at the lowest and 60 at thehighest (although Dr Visser did acknowledge that she did not have all the testinginformation and data from the reports to completely verify this).[10] Dr Visser noted that in most literature, the diagnosis of an intellectual disabilityis accepted as a lifelong condition that cannot be changed, but that it was now acceptedthat adaptive functioning can be affected by teaching and support in a caringenvironment.[11] Her ultimate opinion was that it was "highly unlikely" that Mr Trow wouldhave improved so considerably since 2016 that he no longer fulfilled the criteria ofintellectual disability, particularly given that it appeared unlikely that he had access toa rehabilitative environment from 2005 to 2016, due to his itinerant lifestyle.[12] Mr Trow also seeks leave to appeal out of time and leave to adduce freshevidence. The Crown does not oppose the granting of leave. I therefore grant bothapplications.[13] A hearing by way of teleconference was held to progress the appeal towardsdetermination.Position of the partiesMr Trow[14] After setting the procedural background and noting Dr Visser's decision,Mr Hudson, counsel for Mr Trow, submitted that in terms of next steps, on the basisof Dr Visser's report, he did not consider that there would be any benefit fromobtaining a further assessment for Mr Trow.[15] Counsel submitted that Mr Trow was intellectually impaired and had remainedso since the 2005 proceedings, and that he continued to maintain his appeal againstconviction on the basis that he was not fit to stand trial throughout the period between2008 and 2016.The Crown[16] Mr Bourke, counsel for the Crown, accepted Dr Visser's finding that, inconjunction with the earlier s 38 reports, it was highly unlikely that Mr Trow wouldhave improved so considerably since 2016 that he no longer fulfilled the criteria ofintellectual disability.[17] Counsel then turned to a discussion of post-conviction issues of fitness, andfirstly noted the case of Britz v R, where the Supreme Court (discussing the case ofSR v R in the Court of Appeal), made the following observations on these types ofappeals:2What 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 mean2 Britz v R [2013] NZSC 38 ata 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] According to counsel, under s 7(1) of CPMIP, a Court in this type of appeal isnot actually making a finding of unfitness (as that may be made only before allevidence in a trial has concluded), and noted the observations of Palmer J on thisissue:3Retrospective assessments are potentially problematic. As the Supreme Courtsaid in Cumming v R, a court is not empowered to make a formal finding ofunfitness to plead or to stand trial on a general appeal. A different statutoryregime applies to that. But a court may conclude that an accused has suffereda miscarriage of justice due to mental illness and likely unfitness at the timeof trial. The statutory regime relevant to unfitness to plead is a recognition byParliament that it is not right to put someone on trial when mental disorderwould make the trial unfair.[19] In that case, the appellant (who was working as a window-washer at anintersection) kicked the rear taillight of a motorist's vehicle, causing it to crack. InJune 2015, he pleaded guilty to a wilful damage charge and was convicted andsentenced, but in 2016, he faced fresh charges (relating to common assault on familymembers) and s 38 reports were ordered. Those reports confirmed that the appellanthad an intellectual disability and that he was unfit to plead, and he was made a specialcare patient for 12 months. The appellant brought an appeal against his wilful damagecharge out of time, on the basis that he was unfit to stand trial.[20] Palmer J found that it was reasonable to infer that that at the time of theappellant's 2015 conviction, they had an intellectual disability and were unfit to standtrial. He therefore set aside the conviction.[21] Counsel also referred to the case of Leapai v Police, where the appellantappealed his entire criminal history between 2001 and 2010.4 He had been found unfitto stand trial in 2008 in relation to dishonesty offending, and was released back intothe community after support services under the Intellectual Disability Act 2003 hadbeen put into place. The appellant again faced charges in 2011, and again was foundunfit to plead as a result of an intellectual disability. Following the filing of the appeal,3 Paraha v Police [2017] NZHC 2001 at [23] (footnotes omitted).4 Leapai v Police [2012] NZHC 708.the appellant was found to have a longstanding and permanent intellectual disabilitythat meant that had he been assessed between 2001 and 2010, he would have beenfound unfit to stand trial. This led to Potter J setting aside all of the appellant'sconvictions.[22] In terms of Mr Trow's case, counsel noted that a number of his files had beendestroyed by police, but that based on the updated report by Dr Visser, a reasonablystrong inference could be drawn that Mr Trow had an intellectual disability betweenNovember 2008 and June 2016 and that he would have been unfit to stand trial.Counsel noted that should the Court be satisfied that a miscarriage of justice hasoccurred, it could set the conviction aside under s 233 of the Criminal Procedure Act2011 (CPA).[23] In particular, counsel noted that one of the factors that led the Court to makeno further orders in both Paraha and Leapai was that the appellants already hadsupport services in place as a result of unfitness findings, whereas it was unclearwhether there were any current supports in place for Mr Trow.Relevant law and analysis[24] Under s 232(4) CPA, a miscarriage of justice is defined as any error,irregularity, or occurrence in or in relation to or affecting the trial that has created areal risk that the outcome of the trial was affected or has resulted in an unfair trial ora trial that was a nullity.[25] In Nonu v R, the Court of Appeal discussed the requirements of fitness to standtrial under the CPMIP Act:5The CPMIP Act introduced a new regime for determining if a defendant is fitto stand trial. The definition of unfitness to stand trial in s 4 of the CPMIP Actdiffers from the test previously contained in s 108 of the Criminal Justice Act1985, which was only engaged if a defendant was found to be mentallydisordered under the Mental Health (Compulsory Assessment and Treatment)Act 1992. Parliament's intention when it passed the CPMIP Act was tobroaden the qualifying criteria for assessing whether or not a defendant is unfitto stand trial by including persons who are mentally impaired through, forexample, an intellectual disability, a personality disorder or a neurological5 Nonu v R [2017] NZCA 170 at [25]-[26] (footnotes omitted).disorder. Parliament wanted to ensure persons with intellectual disabilities,personality and neurological disorders, and other conditions were not forcedto stand trial in circumstances where doing so would offend the followingprinciples.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.[26] The Court went on to state:6An inquiry into a defendant's fitness to stand trial, however, involves morethan an assessment of whether or not the defendant can participate in his orher trial by simply performing relevant trial functions. A defendant must alsohave the capacity to participate effectively in his or her trial. This involves anassessment of the defendant's intellectual capacity to carry out relevant trialfunctions. The reason for the need to inquire into the defendant's capacity toparticipate effectively in his or her trial is that the principles we have explainedabove are not honoured in cases where, for example, a defendant superficiallyappears to participate in his or her trial but in reality is, because of intellectualdisability, nothing more than a bystander.[27] This case has some similarity to the circumstances in Paraha and Leapai, as itinvolves a retrospective assessment of whether the appellant was unfit at a past date,when they faced criminal charges.[28] A similar situation arose in Wilkinson v Police in 2017.7 In that case, theappellant had pleaded guilty to a charge of indecently assaulting a 16-year-old girl inJanuary 2012 and was subsequently charged with similar offending in 2016 but foundunfit to stand trial under the CPMIP Act. The psychiatrists who assessed the appellantas being unfit to stand trial in 2016 were then asked to consider whether he was alsolikely to have been unfit to plead to the charge in 2012. They prepared a joint opinionconfirming that in their view the extent and severity of the appellant's impairmentswith regard to his understanding of the legal process were such that on balance heprobably would have been unfit to stand trial in 2012. This evidence persuaded the6 At [29] (footnotes omitted).7 Wilkinson v New Zealand Police [2017] NZHC 1737.Court that a miscarriage of justice had occurred in relation to the 2012 charge, and theconviction was quashed.[29] However, as noted in Paraha above, there is certainly some difficulty inapplying a retrospective assessment to a trial that has already occurred, particularlywhen there is a scarcity of evidence. The Court of Appeal also made this point inSR v R, referring to the English case of R v Walls:8Unless there is contemporaneous evidence to suggest that notwithstanding hisplea and the apparent satisfaction of his legal advisers and the judge that hewas fit to tender it, and participate in the trial, it will be very rare indeed for alater reconstruction, even by distinguished psychiatrists who did not examinethe appellant at the time of trial, to persuade the court that notwithstanding theearlier trial process and the safeguards built into it that the appellant was unfitto plead, or close to being unfit or that his decision to deny the offence and notadvance diminished responsibility can properly be explained on this basis.The situation is, of course, different if, as in Erskine, serious questions abouthis fitness to plead were raised in writing or expressly before the judge at trial.[30] Despite this, a potentially distinguishing feature is the fact that, unlikeWilkinson, Paraha and Leapai, the appellant in this case, Mr Trow, had already beenthe subject of an s 38 report and had previously been deemed unfit to stand trial.Arguably, this provides a stronger basis for the Court to consider whether at the timeof his more recent offending between 2008 to 2016, Mr Trow was unfit to stand trial.Dr Visser's report also provides useful evidence for this assessment.[31] As a result, I consider that the appeal should proceed to hearing, given thatthere does seem to be a potential concern that during the time at which Mr Trow wascharged, convicted and sentenced, he was unfit to stand trial, and that concern shouldbe considered by the Court.[32] The proper Court for the hearing to take place is in the High Court atNew Plymouth. Mr Hudson, who is based in Auckland, applied for leave to participatein the hearing by AVL. Subject to the New Plymouth High Court having thetechnology to permit that, I grant that application.8 SR v R [2011] NZCA 409 at [58].Result[33] The applications for leave to appeal out of time and to adduce further evidenceare granted. The Registrar is directed to set this appeal down for hearing in the HighCourt at New Plymouth at the soonest date convenient to counsel. Mr Hudson isgranted leave to appear by way of AVL.Churchman JSolicitors:Crown Solicitor, New Plymouth for Respondentcc: J Hudson, Barrister, Auckland for Appellant