Barnes v The Queen - [2005] NZCA 155

IN THE COURT OF APPEAL OF NEW ZEALAND
CA69/05
THE QUEEN
v
NATHAN ERNEST JOHN BARNES
Hearing:15 June 2005

Court:Hammond, Baragwanath and Potter JJ
Counsel:P F Gruar for Appellant

H D M Lawry for Crown

Judgment:16 June 2005

JUDGMENT OF THE COURT

The appeal is allowed to the extent that the orders made under s 34(1)(a)(i) and s 24(2)(a) of the Criminal Procedure (Mentally Impaired Persons) Act 2003 are vacated.
REASONS
(Given by Potter J
Introduction
[1]       Nathan Ernest John Barnes appeals against a sentence imposed on him by the High Court on 26 November 2004. In particular he appeals against the order for his indefinite detention as a Special Patient pursuant to s 24(2)(a) of the Criminal Procedure (Mentally Impaired Persons) Act 2003 (“the Act”).
Convictions
[2]       The appellant was convicted following trial by jury of one count of wounding with reckless disregard under s 188(2) Crimes Act 1961 (Count 2 in the indictment).
[3]       He was found not guilty by reason of insanity on two counts of possession of an offensive weapon under s 202A(4)(b) Crimes Act (Counts 3 and 4 in the indictment).
[4]       He entered a guilty plea to one charge of possession of a knife in a public place under s 202A(4)(a) Crimes Act (Count 5 in the indictment).
[5]       He was acquitted of a charge of wounding with intent to cause grievous bodily harm.
Sentence
[6]       The sentence imposed in the High Court was as follows:
a)On Count 2 a “hybrid” sentence of nine months imprisonment and detention as a Special Patient under s 34(1)(a)(i) of the Act;
b)On Counts 3 and 4 detention as a Special Patient under s 24(2)(a) of the Act.
c)On Count 5 convicted and discharged.

Jurisdiction
[7] At the hearing of the appeal it was agreed by Mr Gruar, counsel for the appellant, and Mr Lawry, counsel for the Crown that:
a)It was not open to the High Court to make an order under s 34(1)(a)(i) because pursuant to s 47(2)(a) of the Act, s 34(1)(a) does not apply to any offence committed before the commencement of the Act. The Act came into force on 1 September 2004. The relevant offending by the appellant occurred on 11 October 2003.
b)It was not open to the High Court to make an order under s 24(2)(a) because the medical certificate furnished in response to the request of the High Court Judge for a report pursuant to ss 23 and 35 of the Act, did not on its face establish that detention of the appellant in accordance with s 24(2)(a) was necessary.

[8] Section 24 of the Act provides:
Detention of defendant found unfit to stand trial or insane as special patient or special care recipient
(1)When the court has sufficient information on the condition of a defendant found unfit to stand trial or acquitted on account of his or her insanity, the court must-
(a)consider all the circumstances of the case; and
(b)consider the evidence of one or more health assessors…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Barnes v The Queen

Details

AGLC: Barnes v The Queen [2005] NZCA 155
Case: [2005] NZCA 155
Decision Date: 16 June 2005

CaseChat Overview and Summary

In the case of Barnes v The Queen, Nathan Ernest John Barnes appealed against a sentence imposed by the High Court on 26 November 2004, specifically the order for his indefinite detention as a Special Patient under section 24(2)(a) of the Criminal Procedure (Mentally Impaired Persons) Act 2003. Barnes was convicted of one count of wounding with reckless disregard and was found not guilty by reason of insanity on two counts of possession of an offensive weapon. He also pleaded guilty to one charge of possession of a knife in a public place. The sentence imposed was a "hybrid" sentence of nine months imprisonment and detention as a Special Patient under section 34(1)(a)(i) of the Act, and detention as a Special Patient under section 24(2)(a) of the Act. Barnes appealed against the detention order, arguing that the High Court lacked jurisdiction to make such an order.

The legal issues before the Court were whether the High Court had the jurisdiction to make an order under section 34(1)(a)(i) and section 24(2)(a) of the Act. It was argued that the relevant offending by Barnes occurred before the Act came into force, and therefore, section 34(1)(a) did not apply. Additionally, it was contended that the medical certificate provided did not establish that detention of Barnes in accordance with section 24(2)(a) was necessary.

The Court found that the High Court did not have the jurisdiction to make an order under section 34(1)(a)(i) as the relevant offending by Barnes occurred before the Act came into force. The Court also found that the High Court did not have the jurisdiction to make an order under section 24(2)(a) because the medical certificate did not establish on its face that detention of Barnes was necessary. The Court held that a high degree of care must be exercised to ensure that the facts of the case are within the strict boundaries defined by the Act, and that the imposition of an order under section 24 could not be viewed as a proportional response to the charges of possession of an offensive weapon.

The Court allowed the appeal to the extent that the orders made under section 34(1)(a)(i) and section 24(2)(a) of the Act were vacated. The Court found that there was no basis for increasing the sentence of nine months imprisonment, which Barnes had already served. The Court also urged that steps be taken to ensure the assessment and appropriate disposition of Barnes under the Mental Health regime.

In conclusion, the Court vacated the orders made under section 34(1)(a)(i) and section 24(2)(a) of the Act and allowed the appeal. The Court found that the High Court lacked jurisdiction to make such orders and that the imposition of an order under section 24 could not be viewed as a proportional response to the charges of possession of an offensive weapon. The Court urged that steps be taken to ensure the assessment and appropriate disposition of Barnes under the Mental Health regime.

Orders