Burrows v Police - [2019] NZHC 1198

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE

CRI-2019-485-17

[2019] NZHC 1198

BETWEEN
WAYNE JOHN BURROWS

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 29 May 2019

Counsel:

Mr W J Burrows in person K J Draper for Respondent

Judgment:

29 May 2019

JUDGMENT OF CHURCHMAN J

Introduction

[1] The appellant, Mr Wayne Burrows, faces two charges of criminal harassment.1 He appeals against Judge Butler’s decision of 12 February 2019, pursuant to s 9 of the Criminal Procedure (Mentally Impaired Persons) Act 2003 (the CPMIP Act), finding that there was sufficient evidence against him to establish that he caused the acts forming the basis of the harassment charges.2

Background

[2] On 27 March 2017, Mr Burrows appeared before the Wellington District Court and the Judge ordered a report pursuant to ss 38(1)(a) and (b) of the CPMIP Act. The purpose of that report was to advise the Court as to Mr Burrows’ fitness to plead and/or whether he might have a defence of insanity available to him.

1 Harassment Act 1997, ss 8(1)(b) and (2); maximum penalty two years’ imprisonment.
2 New Zealand Police v Burrows DC Wellington CRI-2017-085-000734, 18 February 2019.

BURROWS v NEW ZEALAND POLICE [2019] NZHC 1198 [29 May 2019]

[3] The s 38 report was completed by Dr Barry-Walsh on 5 May 2017. While he concluded that Mr Burrows did not have an available defence of insanity and that he was fit to stand trial, Dr Barry-Walsh did, however, note the existence of some underlying mental health issues and that it was possible that Mr Burrows’ mental state might yet deteriorate to a point where his fitness might be affected.

[4] At a case review hearing on 27 July 2017, Mr Burrows’ attendance was excused. At this time, the Court Mental Health Liaison Officer advised of concerns about a possible deterioration in Mr Burrows’ mental health. The presiding Judge ordered an updated report pursuant to s 38 of the CPMIP Act.

[5] Dr Barry-Walsh provided this updated report on 21 September 2017, again concluding that Mr Burrows did not have a defence of insanity and was fit to stand trial. Two adjournments were subsequently granted in order for defence counsel to consider their position in light of the updated reports.

[6] On 26 October 2017, Judge Mill gave a decision that the procedure pursuant to s 9 of the CPMIP Act was triggered, noting that Mr Burrows was likely to be self- represented. The hearing was scheduled to occur on 23 November 2017.

[7] The substantive s 9 hearing did not occur on 23 November 2017 as Mr Burrows indicated that he required the complainant and other witnesses to be present for the purposes of cross-examination. Judge Hobbs heard argument on this point and issued a reserved judgment on 8 December 2017 declining Mr Burrows’ application for viva voce evidence to be called.

[8] Mr Burrows’ appeal of this decision was heard on 9 May 2018, Ellis…

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 Burrows v Police

Details

AGLC: Burrows v Police [2019] NZHC 1198
Case: [2019] NZHC 1198
Decision Date: 29 May 2019

CaseChat Overview and Summary

The High Court of New Zealand heard an appeal by Wayne John Burrows against a decision of the Wellington District Court that found sufficient evidence against him to establish that he caused the acts forming the basis of two criminal harassment charges. The appellant argued that the District Court erred in its determination under s 9 of the Criminal Procedure (Mentally Impaired Persons) Act 2003, as it did not find, on the balance of probabilities, that he had committed any act constituting an offence under the Harassment Act 1997. The court needed to determine whether the District Court erred in its application of s 9 of the CPMIP Act and if so, whether such error amounted to a miscarriage of justice.

The court held that the District Court had correctly applied s 9 of the CPMIP Act and that the appellant's argument mischaracterised the legal issue. The court was required to be satisfied on the balance of probabilities that the appellant committed the specified acts, not that those acts were criminal or that he had the requisite mens rea. The court found that the District Court had correctly been satisfied, on the balance of probabilities, that the appellant had committed the acts in question. The court further found that even if the appellant was correct that the District Court had mischaracterised the legal issue, it did not result in a miscarriage of justice.

The appeal was dismissed.

Orders