THOMPSON v R [2017] NZCA 390

THOMPSON v R [2017] NZCA 390 [6 September 2017]ORDER PROHIBITING PUBLICATION OF THIS JUDGMENT(INCLUDING THE RESULT) IN NEWS MEDIA OR ON THE INTERNETOR OTHER PUBLICLY AVAILABLE DATABASE UNTIL FINALDISPOSITION OF THE APPELLANT'S OUTSTANDING CHARGES.PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION ORIDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BYS 203 OF THE CRIMINAL PROCEDURE ACT 2011.IN THE COURT OF APPEAL OF NEW ZEALANDCA628/2016[2017] NZCA 390BETWEEN WAIKATO MOEHURORI THOMPSONAppellantAND THE QUEENRespondentHearing: 26 July 2017Court: Winkelmann, Brewer and Peters JJCounsel: S A McKenna and J A Alchin-Boller for AppellantZ R Johnston for RespondentJudgment: 6 September 2017 at 10.30 amJUDGMENT OF THE COURTA The application to adduce further evidence on appeal is granted.B The appeal against conviction is dismissed.C The appeal against sentence is dismissed.D Order made prohibiting publication of the judgment (including the result)in news media or on the internet or other publicly available database untilfinal disposition of the appellant's outstanding charges. Publication in lawreport or law digest permitted.____________________________________________________________________REASONS OF THE COURT(Given by Brewer J)Introduction[1] Mr Thompson was convicted following a trial in the District Court atHamilton, before Judge Cocurullo and a jury, on one charge of sexual violation byrape and one charge of sexual violation by unlawful sexual connection. On14 November 2016, Judge Cocurullo sentenced him to seven years and four months'imprisonment.1[2] On 12 December 2016, Mr Thompson filed a notice of appeal against hisconvictions and sentence. However, he has not pursued the appeal against sentenceand it is dismissed accordingly.[3] The appeal against conviction focuses on Mr Thompson's mental capacity. InAugust 1996 he was involved in a motor-vehicle accident and suffered a serious headinjury. The effects of that head injury are still operative. Mr Thompson's case is thatthey are operative to such an extent that at the time of the trial:(a) he was unfit to stand trial; or(b) his mental capacity was diminished to such an extent that specialprovision should have been made to ensure that questioning by counselwas fair to him and the jury should have been made aware of his headinjury and the effect of it on his ability to answer questions.[4] It is submitted for Mr Thompson that, in either case, there has been amiscarriage of justice.1 R v Thompson [2016] NZDC 22911 at [15].The relevance of mental capacity[5] The Criminal Procedure (Mentally Impaired Persons) Act 2003 (the Act) statesthat a finding of unfitness to stand trial may be made "at any stage after thecommencement of the proceedings and until all the evidence is concluded".2 Thisdoes not, however, prevent a court from overturning a conviction on the basis that anappellant was unfit to stand trial at the time of his or her conviction:3A formal finding, pursuant to the statutory procedures, of unfitness to plead orunfitness to stand trial has significant consequences, and involves aprescriptive regime of inquiry. On a general appeal, this Court is notempowered to make a formal finding to either of those effects. Indeed, aformal finding can be made only between the commencement of criminalproceedings and the conclusion of all the evidence at trial. But that does notprevent this Court from inquiring into, and deciding whether, by reason of amental disorder from which a defendant was suffering at the time of trial, therehas been a miscarriage of justice for the purposes of s 385(1)(c) of the CrimesAct 1961.4[6] The ultimate question on any challenge to a conviction founded on the state ofan appellant's mental health at the time of trial is whether there was a miscarriage ofjustice, as that term is defined in s 232(4) of the Criminal Procedure Act 2011: 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.[7] The Supreme Court has elaborated on the concepts of "real risk" and "unfairtrial".5 A "real risk" that the outcome was affected exists when "there is a reasonablepossibility that a not guilty (or more favourable) verdict might have been delivered ifnothing had gone wrong".6 The appellant does not have to establish "a miscarriage inthe sense that the verdict actually is unsafe" but that there is a real possibility that it isunsafe.72 Criminal Procedure (Mentally Impaired Persons) Act 2003, s 7(1).3 Cumming v R [2008] NZSC 39, [2010] 2 NZLR 433 at [13] (footnote omitted).4 Section 385(1)(c) of the Crimes Act 1961 has been replaced by s 232(2)(c) of the CriminalProcedure Act 2011. There is no reason to suggest that this principle should not continue to apply.5 R v Sungsuwan [2005] NZSC 57, [2006] 1 NZLR 730 at [110] per Tipping J; and R v Condon[2006] NZSC 62, [2007] 1 NZLR 300 at [78].6 R v Sungsuwan, above n 5, at [110].7 At [110].[8] In contrast, an unfair trial exists where the errors are prejudicial orunacceptably give rise to the appearance of unfairness. The Supreme Court held that"[i]t is not every departure from good practice which renders a trial unfair".8 Instead,the errors or irregularities must depart from good practice in a manner that is "so gross,or so persistent, or so prejudicial, or so irremediable" that the court must quash thedecision.9[9] Overall, the issue for us is whether, on either of the grounds put forward,Mr Thompson's convictions ought to be quashed (and a retrial ordered) on the groundthat a miscarriage of justice occurred because of his mental condition.Unfitness to stand trial[10] Section 4(1) of the Act is relevant to the consideration of whetherMr Thompson was fit to stand trial:unfit to stand trial, in relation to a defendant,—(a) means a defendant who is unable, due to mental impairment, toconduct a defence or to instruct counsel to do so; and(b) includes a defendant who, due to mental impairment, is unable—(i) to plead:(ii) to adequately understand the nature or purpose or possibleconsequences of the proceedings:(iii) to communicate adequately with counsel for the purposes ofconducting a defence.[11] The test is contained in para (a) of the definition; the factors in para (b) mayassist with the determination of that test but are not exhaustive.10[12] In P v Police, Baragwanath J adopted a list of further factors which may assistfrom a series of Australian decisions:11[24] whether the accused was capable of:(a) understanding what it is that he has been charged with;8 R v Condon, above n 5, at [78].9 At [78] citing Randall v The Queen [2002] UKPC 19, [2002] 1 WLR 2237 at [28].10 Solicitor-General v Dougherty [2012] NZCA 405, [2012] 3 NZLR 586 at [4].11 P v Police [2007] 2 NZLR 528 (HC) citing for example R v Ngatayi (1980) 147 CLR 1 at 8.(b) pleading to the charge and exercising his right of challenge;(c) understanding that the proceedings before the [trial court]would be an inquiry as to whether or not he did what he wascharged with;(d) following, in general terms, the course of the proceedingbefore the Court;(e) understanding the substantial effect of any evidence givenagainst him;(f) making a defence to, or answering, the charge;(g) deciding what defence he would rely on;(h) giving instructions to his legal representative (if any); and(i) making his version of the facts known to the Court and to hislegal representative, if any.[13] This Court endorsed these factors in Solicitor-General v Dougherty.12Was Mr Thompson unfit to stand trial?[14] There are three medical reports which are before us. Mr McKenna forMr Thompson submits that these reports raise serious doubt as to Mr Thompson'sfitness to stand trial and as a result there must be a serious concern that a miscarriagehas occurred.Dr Kadhem Majeed's report dated 9 September 201613[15] Dr Majeed is a specialist forensic psychiatrist. His report was ordered by theDistrict Court to determine whether Mr Thompson was unfit to stand trial on furthercharges, subsequent to his trial on the charges which concern us. His conclusion isthat Mr Thompson was fit to stand trial. Dr Majeed framed his analysis around thedefinition in s 4(1) of the Act, finding that Mr Thompson satisfied the legal test:45. Waikato Thompson described the charges that he is currently facingand also referred to the charges that he was recently convicted of. Heunderstands the Guilty and Not Guilty plea and understands theirconsequences in relation to his current new charges. He is represented12 Solicitor-General v Dougherty, above n 10, at [57].13 Dr Majeed's report was prepared after Mr Thompson's trial on the charges relevant to this appealbut before sentencing. We presume the report was before the sentencing Judge, but he does notrefer to it. In any event, it is relevant to the appeal and so we have had regard to it.by legal counsel. He is, in my opinion on balance, able tocommunicate with legal counsel for the purpose of conducting adefence despite the condition of Depression that he presented with andthe loss of memory that he described in relation to the allegedoffending. Waikato Thompson does not seem [to] present withimpairment of his working memory and is, in my opinion, able todiscuss his charges and his defence options with his legal counsel.Waikato Thompson understands the evidence presented in the NZPolice Summary of Facts relating to the new charges that he is facing.In my opinion he understands the nature and purpose and possibleconsequences of the court proceedings.[16] Although Dr Majeed found that Mr Thompson's reported memory loss was"highly likely to be psychogenic rather than organic in nature", he diagnosedMr Thompson with depression of mild to moderate severity. He noted also thatMr Thompson appeared to experience limited attention and limited concentration buthe concluded that Mr Thompson did not have either a mental disorder14 or a mentalimpairment.15[17] Dr Majeed recommended that some provision could be made at trial to accountfor Mr Thompson's condition:46. Waikato Thompson can be allowed breaks in the events [sic] that heexperiences fatigue and his concentration suffer during the course ofa trial Dr Erin Eggleston's report dated 16 September 2016[18] Dr Eggleston is a registered clinical psychologist. She has significantexperience as a consultant clinical psychologist, as a specialist assessor under theIntellectual Disability (Compulsory Care and Rehabilitation) Act 2003 and as aneuropsychologist to a district health board.[19] Dr Eggleston's report was made to assist the District Court with the sentencingof Mr Thompson. She did not directly consider his fitness to stand trial.14 As that term is defined in s 2 of the Mental Health (Compulsory Assessment and Treatment) Act1992.15 As that term is used in the definition of "unfit to stand trial" in s 4 of the Criminal Procedure(Mentally Impaired Persons) Act.[20] Dr Eggleston found that Mr Thompson had a mild neurocognitive disorder dueto a traumatic brain injury. Specifically, she found that Mr Thompson suffered fromimmediate and delayed verbal memory deficits. Such deficits are relevant to theapplication of memory capacity to everyday life (such as remembering a telephonenumber or names). She said: his IQ pre-injury is in the low average range and largely inconsistent witha diagnosis of Intellectual Disability. His work history also makes IntellectualDisability unlikely but the pattern of deficits at work and losing jobs does fitwith cognitive and language deficits post brain injury.[21] Overall, Dr Eggleston concluded that Mr Thompson did not have anintellectual disability:There is no Intellectual Disability, though there are specific persistingcognitive impairments as a result of the 1996 brain injury that will need to betaken into account in respect of programming. Mr Thompson's immediatememory and therefore his capacity to learn new information is impaired. Thispresents some challenges for psycho-education, individual therapy in grouptherapy, such as would be part of any comprehensive programming focusedon sexual offending.Dr Gil Newburn's report dated 17 May 2017[22] Dr Newburn is a neuropsychiatrist. His report was commissioned byMr Thompson's counsel. Mr Thompson applied for leave to admit Dr Newburn'sreport as evidence on his appeal. The Crown did not oppose this application. It isdirectly relevant to the issues we have to decide and was obviously not available attrial. We admit it as evidence on the appeal.[23] Dr Newburn began as follows:Mr Thompson has been convicted at trial of a series of events. He has beenaware on reflection that slowed information processing influenced the speedof response to questions, which may potentially have altered the Jury'sinterpretation of his veracity. A neuropsychiatric report has therefore beensought to address the possibility of this issue.[24] Dr Newburn made diagnoses of:(a) mild neurocognitive disorder due to traumatic brain injury; and(b) personality disorder due to a general medical condition (traumatic braininjury), mixed type.[25] Dr Newburn agrees with Dr Eggleston about Mr Thompson's memory deficits.Dr Newburn is also of the view that Mr Thompson suffers issues with attentionalfunction and slow information processing.[26] Dr Newburn's opinion is that it is probable that Mr Thompson would:struggle in a trial situation to understand what is asked of him, and to respondappropriately in a timely manner. This will arise as a result of theconsequences of brain damage as set out above. Furthermore, the anxietyengendered by a Court situation will further aggravate his cognitiveimpairments, adding to the above problems.Discussion[27] The information in the medical reports is not in itself sufficient to raiseconcerns as to whether Mr Thompson was "unfit to stand trial" in terms of in s 4(1) ofthe Act. Dr Majeed, who was specifically asked to consider this issue, gave hisopinion that on balance Mr Thompson was fit to stand trial.[28] While some issues as to Mr Thompson's mental function were raised in thereports, there is no evidence to suggest that these caused any difficulty at trial. We notein particular that Mr Thompson's trial counsel has not provided an affidavit on theappeal. Trial counsel's perception is important when assessing a defendant's abilityto understand the proceedings and give instructions, and also can provide helpfulinformation to the court as to whether counsel had any concerns as to the manner inwhich the defendant gave evidence. Mr McKenna, in answer to questions from theCourt, told us that he had considered obtaining a report from trial counsel but did notthink there was any point in doing so.[29] It is also relevant that while Mr Thompson filed an affidavit in support of theapplication to the Court for Dr Newburn's report to be admitted on appeal, he did notdescribe any difficulties he perceived in his ability to conduct his defence or instructcounsel to do so.[30] Mr Thompson did give evidence at trial. We have read the notes of evidence.There is nothing to suggest in the record of that evidence that he was unfit to standtrial. As we come to, the contrary is true. This ground of appeal does not succeed.Did Mr Thompson's mental health nevertheless result in a miscarriage of justice?[31] Mr McKenna submits that even if Mr Thompson was fit to stand trial, becauseof the mental-health conditions identified by the three health professionals, MrThompson's performance as a witness might well have caused the jury to unfairlydoubt his veracity. The submission is that the jury should have been informed by anexpert witness of the nature of Mr Thompson's mental-health difficulties and how theymight impact his performance as a witness. For example, Mr Thompson's impairedability to process information would have resulted in delayed answers to questions —the jury would likely have interpreted these delays as signs of prevarication. Further,allowance should have been made for Mr Thompson to enable him to best participatein the trial. For example, there should have been more frequent breaks.[32] We do not accept this submission. First, there is no evidence thatMr Thompson's mental health contributed to any error, irregularity or occurrence thatcreated a real risk that the outcome of the trial was affected, or which resulted in anunfair trial. As we have observed, Mr Thompson does not claim to have been at anydisadvantage in giving his evidence or otherwise participating in the trial. None of thehealth professionals record any such claim from him. In these circumstances the Courtis simply asked to speculate that there were difficulties based on the experts' reports.[33] Second, as we have noted, there is no affidavit from trial counsel. We wouldhave expected there to be such an affidavit if trial counsel had noticed any difficultiesfor her client during the course of the trial or in her client's behaviour when givingevidence.[34] Finally, the notes of evidence do not show any apparent difficulty on the partof Mr Thompson. The allegations against him were confined to one incident. Insummary, that on one occasion he offended sexually against the complainant in thecab of his truck. Mr Thompson's evidence-in-chief showed good recall of the journeyin question and his defence (that intercourse was consensual) was clear. He had a goodgrasp of the issues. His cross-examination occupies 62 pages of the notes of evidence.Mr Thompson did not resile from his description of events. He maintained his viewthat, although he had had sexual intercourse with the complainant, it was consensual.He responded in a detailed and appropriate way to questioning. We note there was anovernight adjournment approximately halfway through the cross-examination, whichwould partly have answered Dr Majeed's recommendation that breaks be taken.[35] In summary, taken together the reports of the health professionals do notestablish that Mr Thompson, due to his mental health conditions, would not be ascompetent a witness as others. To use Dr Newburn's description, he might struggle ina trial situation to understand what is asked of him and to respond appropriately in atimely manner. But that is not enough for us to conclude that in this case there was amiscarriage of justice, as that term is defined in s 232(4) of the Criminal ProcedureAct. Counsel for Mr Thompson did not identify anything in the trial record to suggestthat Mr Thompson experienced difficulty at trial, or that if he did, that it wassignificant enough to affect the conduct of his defence. Mr Thompson did not say hehad difficulty in understanding and answering questions. His trial counsel did notprovide evidence of any difficulty. In the absence of evidence that there was any actualdifficulty, and in light of the generally reassuring opinions of the experts called uponto assess Mr Thompson, we conclude that there was no real risk that the outcome ofthe trial was affected or that there was an unfair trial.Result[36] The application for leave to adduce further evidence on appeal is granted.[37] The appeal against conviction is dismissed.[38] The appeal against sentence is dismissed.[39] Mr Thompson has outstanding criminal charges. For fair trial reasons we makean order prohibiting publication of this judgment (including the result) in news mediaor on the internet or other publicly available database until final disposition of MrThompson's outstanding charges. Publication in a law report or law digest ispermitted.Solicitors:Grantham Law, Hamilton for AppellantCrown Law Office, Wellington for Respondent