W (CA252/2017) v R [2019] NZCA 367

W (CA252/2017) v R [2019] NZCA 367 [20 August 2019]ORDER PROHIBITING PUBLICATION OF NAMES, ADDRESSES,OCCUPATIONS OR IDENTIFYING PARTICULARS OFWITNESSES/VICTIMS/CONNECTED PERSONS PURSUANT TO S 202CRIMINAL PROCEDURE ACT 2011.NOTE: INTERIM ORDER PROHIBITING PUBLICATION OF NAME,ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF THEAPPELLANT REMAINS IN FORCE UNTIL FINAL DETERMINATION OFTHE NAME SUPPRESSION APPLICATION IN CRI 2016-009-687.IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA252/2017[2019] NZCA 367BETWEEN W (CA252/2017)AppellantAND THE QUEENRespondentHearing: 1 August 2019Court: French, Mallon and Moore JJCounsel: A J McKenzie for AppellantA J Ewing for RespondentJudgment: 20 August 2019 at 9.30 amJUDGMENT OF THE COURTThe appeal against conviction is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by French J)Introduction[1] W was convicted at trial of meeting a young person after grooming, twocharges of supplying cannabis to a person aged under 18 years and indecent assault ona young person.[2] The convictions were based on the evidence of a group of teenage boys. Theytestified that W approached them at a shopping mall, befriended them and providedthem with food, clothes, free accommodation and ultimately cannabis. One of themalso alleged that while he was sleeping at W's home, W indecently assaulted him.[3] W now appeals his convictions.[4] Before addressing the merits of the appeal, it is necessary for us to traversethe history of this proceeding and the reasons why we declined an application foran adjournment made at the commencement of the hearing.The procedural history of this appeal[5] The trial took place in November 2016. The notice of appeal was filed inMay 2017. Although W filed the notice himself, he instructed counsel Mr McKenzieto represent him.[6] Then followed judicial directions requiring W to particularise the grounds ofappeal and file affidavit evidence in light of an indication that trial counsel error waslikely to be an issue.1 The directions were not complied with, thwarting the Court'sdirection that the appeal be set down for hearing on the first available date in 2018.2The explanation for the default was W's health problems arising out of head injuriessustained in 1997.[7] In April 2018, Mr McKenzie advised the Court that the main grounds of appealwere that W was unfit to stand trial in 2016 and that there was new evidence notadduced at trial. Mr McKenzie also advised the Court that, in other extant proceedings1 [W] v R CA252/2017, 22 June 2017 (Minute No 1 of Harrison J) and [W] v R CA252/2017, 13 July2017 (Minute No 2 of Harrison J).2 [W] v R CA252/2017, 30 November 2017 (Minute No 4 of Harrison J).in the District Court, a Judge had ordered two reports on W's fitness to stand trialunder s 38 of the Criminal Procedure (Mentally Impaired Persons) Act 2003.3 Theappeal was put on hold pending receipt of those reports.[8] A copy of the first assessor's report dated 20 June 2018 was subsequently filedin this Court. It stated that W was fit to instruct counsel and stand trial but that, becauseof his "executive functioning difficulties", accommodations including the courtroomtemperature being in the low 20s and the taking of frequent breaks were recommendedto allow him to engage in the court process.[9] In light of the report, Mr McKenzie advised this Court on 5 July 2018 that, forthe purposes of the appeal, the contention would be that if such accommodations arenecessary now, that would also have been the position at trial in 2016. He acceptedthat such a contention would need to be supported by expert evidence and had soughtfunding to enable him to commission a report from a neuropsychiatrist Dr Newburnwho had treated W in the past. It was agreed that affidavits from W's trial counsel andW would also be required. The Court directed that W file his affidavit by 28 August2018.4[10] Mr McKenzie also advised the Court that fitness to stand trial was now the onlyground of appeal.[11] The appeal was set down for hearing in April 2019. However the fixture hadto be abandoned because, despite the 28 August 2018 deadline for the filing of W'saffidavit being extended until 18 September 2018,5 the affidavit had still not been filedas at 21 February 2019.6[12] In a minute dated 21 February 2019, this Court ordered that W's affidavit mustbe filed no later than 8 March 2019.7 The minute also stated that there would be no3 The proceedings related to another set of charges against W involving allegations of forgery. Weunderstand those charges were withdrawn in the District Court by the police on 1 August 2019.4 [W] v R CA252/2017, 5 July 2018 (Minute No 3 of French J).5 [W] v R CA252/2017, 28 August 2018 (Minute No 4 of French J).6 [W] v R CA252/2017, 21 February 2018 (Minute No 5 of French J).7 At [5].further adjournments and that the appeal would proceed on the new date even if Whad still not filed his affidavit.8[13] The new date ultimately allocated for the appeal was 1 August 2019.[14] On 16 July 2019, Mr McKenzie filed a memorandum applying foran adjournment and also seeking leave to withdraw as counsel. The justification forboth applications was that fresh eyes were needed to review the file.The memorandum also enclosed a report from Dr Newburn dated 21 February 2019in his capacity as the second assessor appointed by the District Court under s 38 ofthe Criminal Procedure (Mentally Impaired Persons) Act.9 The report was to similareffect as the other assessor's report.[15] This Court declined to grant Mr McKenzie leave to withdraw. It directed thatW's submissions were to be filed no later than 4 pm 30 July 2019.[16] On 31 July 2019, Mr McKenzie filed a further memorandum advising he didnot feel able to file submissions and renewing the application for an adjournment.Mr McKenzie submitted that, rather than proceed with the appeal, the moreappropriate course of action was for us to adjourn the appeal and issue a notice ofnon-compliance under s 338 of the Criminal Procedure Act.[17] When the matter was called on 1 August 2019, Mr McKenzie made furthersubmissions in support of the application for an adjournment. In addition tothe matters he had raised previously, he advanced two further grounds. First, that Wnow wanted to raise new grounds of appeal which would require evidence andinvestigation. And secondly that last night W had provided him with what Winstructed was a medical certificate certifying that he was unfit to mount an appeal.Mr McKenzie had not had sufficient time to vouch for the authenticity of the documentbut we said we were prepared to look at it.8 At [7].9 There has never been any explanation for the delay in obtaining and filing this report.[18] The document was not a medical certificate. It was headed "statement byDr Gil Newburn" and contained twelve short paragraphs. They were typed, witha handwritten notation to the effect that the statement had been prepared by W himselfbased on his understanding of the doctor's opinion which had been shared over timeand which was accurate.[19] We were satisfied that neither this document nor the professed desire toinvestigate new grounds of appeal on the eve of the hearing justified an adjournmentof an appeal which had been in train for over two years and which had beencharacterised by constant delays on the part of W. There was nothing in any of themedical reports which had been supplied to indicate that he was incapable ofunderstanding the clear directions given by this Court and incapable of complyingwith them in the generous time that had been allowed.10[20] The appeal therefore proceeded at our direction on the basis that the sole issuewas whether W was unfit to stand trial in November 2016, resulting in a miscarriageof justice. W's trial counsel (Mr McCormick) who had provided an affidavit wascross-examined by Mr McKenzie.11 Mr McKenzie then presented oral submissions insupport of the appeal and replied to the Crown submissions. W did not attend thehearing.[21] For completeness, we record that since the hearing, W has requested the Courtto stay release of this decision and advised that he will file an affidavit once he feelsable to do so. We are not prepared to countenance any further delay and there is noreason to withhold release of this decision.Was W fit to stand trial in November 2016?[22] The medical reports confirm that W has well established difficulties arising outof head injuries sustained in 1997. Those difficulties are difficulties regulating hisbody temperature and issues with emotion regulation, information processing,attention span and concentration. They are difficulties which are capable of qualifying10 Report of Ms Stephanie Snelson (Canterbury District Health Board) 20 June 2018; and Report ofDr Gil Newburn (Neuropsychiatric Services) 21 February 2019.11 A waiver of privilege having been filed in December 2018.as "mental impairment" within the meaning of s 4 of the Criminal Procedure (MentallyImpaired Persons) Act.[23] The difficulties in W's functioning were identified in the period following theaccident in 1997 and reassessed in the period between 2010 and 2013, in part for thepurposes of proceedings under the Accident Compensation Act 2001. We thereforeaccept they are long standing and must have existed in 2016.[24] However, the existence of mental impairment does not of itself meana defendant is unfit to stand trial or instruct counsel. And indeed in this casethe medical evidence suggests otherwise.[25] As already mentioned, the 2018 and 2019 reports while confirming that W isfit to stand trial also recommended consideration of certain steps being taken to helpminimise the effects of his executive functioning difficulties and allow him to engagein the Court process. The recommended measures were:(a) W needs to be responsible for taking his medication.(b) The ambient temperature should be managed and kept within the rangeof 16–21 degrees Celsius, ideally in the middle of this range.(c) Frequent breaks should be taken to allow W time to discuss and processnew information with his lawyer.(d) External stimuli such as noise and number of people present should beminimised.[26] Mr McKenzie acknowledged that neither the trial Judge nor trial counselMr McCormick had raised any concerns about W's ability to participate in the trial atthe time. However, he submitted that W's needs were so complex that laypeoplewould be likely to miss them and attribute any unusual behaviour to a bad personality.Mr McKenzie said that the medical reports support the proposition that therecommended accommodations were necessary for W to receive a fair trial and thatwithout them W would have been disadvantaged. In short, W's difficulties can bemanaged but the fact is that they were not.[27] We do not accept those submissions. Mr McCormick is an experiencedcriminal lawyer. His evidence was that W engaged fully in the preparation for trialand also in the hearing itself. Prior to the trial, Mr McCormick had lengthyconsultations with W discussing the prosecution evidence and formulating the defenceresponse and trial strategy. W gave him clear and detailed instructions. Further, Wparticipated during the trial in a way that demonstrated understanding of what wasbeing said. Far from being unable to follow the evidence as it unfolded, W even passedhim notes during the cross-examination with suggested questions. At no time didMr McCormick detect any deterioration in W's functioning. And at no time did W evercomplain to him about the temperature in the courtroom or that he was havingdifficulty following the process.[28] Mr McCormick's evidence confirmed what is also stated in the medical reports— that W is an intelligent and articulate man. We note too that the Crown case hefaced at trial was straightforward. As Ms Ewing pointed out, there was no expertevidence and the sole question was whether what the young men alleged had happeneddid in fact happen.[29] It follows from all of the above that we do not accept there has been anymiscarriage of justice or a risk of a miscarriage of justice. The appeal is accordinglydismissed. We would add that, in our assessment, W has been well served by bothMr McCormick and Mr McKenzie.Outcome[30] The appeal against conviction is dismissed.Solicitors:Crown Law Office, Wellington for Respondent