Christie v Police
[2018] NZHC 2149
•21 August 2018
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2017-404-327
[2018] NZHC 2149
BETWEEN LAWRENCE CHRISTIE
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 13 August 2018 Appearances:
G H Vear for Appellant K Li for Respondent
Judgment:
21 August 2018
JUDGMENT OF LANG J
[on application for leave to appeal against conviction]
This judgment was delivered by me on 21 August 2018 at 3.30 pm, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar Date……………
CHRISTIE v NEW ZEALAND POLICE [2018] NZHC 2149 [21 August 2018]
[1] Mr Christie is 44 years of age, and suffers from an intellectual disability. He has numerous criminal convictions, the earliest of which relates to offending in 1995. Ms Vear argues on his behalf that he has been unfit to plead or stand trial throughout the period from 1995 until the present day. She therefore applies on Mr Christie’s behalf for leave to appeal out of time against all convictions on that ground. She contends leave should be granted under s 123(1) of the Summary Proceedings Act 1957 and s 231(3) of the Criminal Procedure Act 2011.
The application for leave to appeal out of time: relevant principles
[2] The principles that apply to an application for leave to appeal out of time are well established. They were enunciated in R v Knight1 and confirmed in R v Lee.2 In short, the touchstone is the interests of justice having regard to the relevant circumstances of the case.
[3] This requires the Court to weigh the wider interest of society in the finality of litigation against the interests of the applicant in question. Other factors that may be relevant to the overall balancing exercise include the strength of the proposed appeal, the practical utility of the remedy sought, the length and reasons for the delay, the impact on other persons similarly affected and the possible prejudice for the prosecution.3
The substantive appeal
[4] Unsurprisingly, many of the Court and police files relating to Mr Christie’s historic offending cannot now be located. It is therefore no longer possible to ascertain whether he pleaded guilty to, or was convicted following a defended hearing on, the charges to which the proposed appeal relates.
[5] To the extent that the appeal relates to charges to which Mr Christie entered guilty pleas, the principles are well established. In R v Le Page, the Court of Appeal observed:4
1 R v Knight [1998] 1 NZLR 583 (CA).
2 R v Lee [2006] 3 NZLR 42 (CA).
3 R v Knight, above n 1, at [99].
4 R v Le Page [2005] 2 NZLR 845 (CA) at [16].
[I]t is only in exceptional circumstances that an appeal against conviction will be entertained following entry of a plea of guilty. An appellant must show that a miscarriage of justice will result if his conviction is not overturned. Where the appellant fully appreciated the merits of his position, and made an informed decision to plead guilty, the conviction cannot be impugned. These principles find expression in numerous decisions of this Court, of which R v Stretch [1982] 1 NZLR 225 and R v Ripia [1985] 1 NZLR 122 are examples.
[6] In Cumming v R, the Supreme Court observed that a court is not empowered to make a formal finding of unfitness to plead or stand trial on a general appeal.5 A court may, however, conclude that a defendant has suffered a miscarriage of justice due to mental illness and likely unfitness at the time of trial.6
[7] Before considering the factors relevant to the exercise of the discretion in the present case, it is useful to briefly consider the legislative history of the power vested in the courts to declare a defendant unfit to stand trial.
Fitness to stand trial: legislative history
[8] In 1969 Parliament amended the Criminal Justice Act 1954 to enable the courts to find a defendant unfit to stand trial where he or she was mentally disordered and under a disability. These provisions were subsequently carried through to s 108 of the Criminal Justice Act 1985 (CJA). A defendant could only be found unfit to stand trial under s 108 of the CJA where the Court was satisfied the defendant suffered from a mental disorder.
[9] On 1 November 1992, the Mental Health (Compulsory Assessment and Treatment) Act 1992 (the Mental Health Act) introduced a new definition of the term “mental disorder” for the purposes of s 108. That definition remains in place today:7
mental disorder, in relation to any person, means an abnormal state of mind (whether of a continuous or an intermittent nature), characterised by delusions, or by disorders of mood or perception or volition or cognition, of such a degree that it—
(a)poses a serious danger to the health or safety of that person or of others; or
5 Cumming v R [2008] NZSC 39, [2010] 2 NZLR 433 at [13].
6 At [13].
7 Section 2(1).
(b)seriously diminishes the capacity of that person to take care of himself or herself; —
and mentally disordered, in relation to any such person, has a corresponding meaning.
[10] Importantly, however, s 4(e) of the Mental Health Act expressly excludes “intellectual disability” from being a mental disorder for the purposes of Parts 1 and 2 of the Act.8 As a result, the concept of mental disorder under the CJA focussed on psychiatric disorder rather than intellectual disability.9 A defendant who was intellectually disabled, but not mentally disordered, would fall outside the scope of the legislation. This meant that a defendant who would otherwise be found unfit to stand trial was nevertheless precluded from such a finding because the source of his or her lack of competence was an intellectual disability rather than a mental disorder.
[11] The Criminal Procedure (Mentally Impaired Persons) Act 2003 (the CPMIP Act), came into force on 1 September 2004 and repealed s 108 of the CJA. The new Act replaced the term “mentally disordered” with the broader term “mentally impaired”. Although “mentally impaired” is not defined in the CPMIP Act, the courts have held that the term captures both mental disorder and intellectual disability, as well as other forms of mental impairment.10
[12] In Nonu v R, the Court of Appeal described the new regime, and the reasons for it, as follows:11
[25] The CPMIP Act introduced a new regime for determining if a defendant is fit to stand trial. The definition of unfitness to stand trial in s 4 of the CPMIP Act differs from the test previously contained in s 108 of the Criminal Justice Act 1985, which was only engaged if a defendant was found to be mentally disordered under the Mental Health (Compulsory Assessment and Treatment) Act 1992. Parliament's intention when it passed the CPMIP Act was to broaden the qualifying criteria for assessing whether or not a defendant is unfit to stand trial by including persons who are mentally impaired through, for example, an intellectual disability, a personality disorder or a neurological disorder. Parliament wanted to ensure persons with intellectual disabilities, personality and neurological disorders, and other conditions were not forced to stand trial in circumstances where doing so would offend the following principles.
8 Between 1 November 1992 and 31 March 2000, the wording of section 4(e) of the Mental Health (Compulsory Assessment and Treatment) Act 1992 was “intellectual handicap”.
9 T v New Zealand Police HC Wellington CRI-2007-485-37, 17 March 2009 at [86].
10 See R v H [2014] NZHC 1423 at [9].
11 Nonu v R [2017] NZCA 170.
[26] There are three key principles underpinning the fitness to stand trial requirements of the CPMIP Act. First, the requirements promote fairness to a defendant 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 the criminal justice system by only holding defendants accountable if they understand the reasons why they have been prosecuted, convicted and punished. Third, the requirements enhance society's interest in having a reliable criminal justice system by not placing on trial defendants who, through lack of fitness, are unable to advance an available defence.
(footnotes omitted)
The inherent jurisdiction to set aside convictions where the defendant was not fit to plead or stand trial when the convictions were entered
[13] Ms Vear contends the Court should use its inherent jurisdiction to reconsider the issue of Mr Christie’s fitness to plead. She relies on a line of authority in both this Court and the Court of Appeal confirming that the Court has inherent jurisdiction to set aside historic convictions where the evidence demonstrates the defendant was unfit to plead or stand trial when the convictions were entered.
[14] In R v L, the Court of Appeal observed that the requirement that a defendant be fit to stand trial was fundamental to New Zealand’s criminal justice system.12 The right to a fair trial is affirmed in s 25(a) of the New Zealand Bill of Rights Act 1990. The Court said it was “self evident that a trial will not be fair if the accused suffers from a disability which prevents him or her from effectively defending him or herself”.13 The Court accepted, however, that the existence of the Court’s inherent jurisdiction to stay a proceeding on the ground that a defendant was not fit to plead or stand trial needed to be reconciled with the express statutory regime prescribed by the CJA.14 The occasions on which the Court would find it necessary to grant a stay for this reason would therefore necessarily be rare.
[15] In Lawler v R, the appellant sought leave to appeal in 2013 against convictions that had led to the imposition of a sentence of preventive detention in 1994.15 He also sought leave to appeal against other convictions entered between 1987 and 1990. As in the present case, the fact that the appellant was intellectually disabled meant he
12 R v L [1998] 2 NZLR 141 (CA) at 144.
13 At 144.
14 At 146.
15 Lawler v R [2013] NZCA 308.
could not be considered unfit to stand trial in terms of the CJA. His counsel argued that the appellant was nevertheless not fit to stand trial between 1987 and 1994, and for that reason did not receive a fair trial.
[16] The Court of Appeal noted16 that counsel agreed, relying upon R v L,17 that, where the regime under s 108 did not apply because the defendant suffered from intellectual disability, the High Court could invoke its inherent jurisdiction to grant a stay where a fair trial was not possible. The Court said it was not necessary to express a view on that issue.18 It also said, however, that if the inherent jurisdiction under R v L is applied, it is not necessary for the defendant to have an intellectual disability as defined. Rather, the issue is whether the defendant lacks the capacity described in s 108 of the CJA.19
[17] The appeal in Lawler ultimately failed, however, because the Court had concerns regarding the validity of a psychiatrist’s conclusion that her assessment of the appellant in 2012 provided a proper basis for a decision regarding his fitness to stand trial many years earlier.20 The Court considered it was necessary to have regard to contemporaneous evidence, and that which existed did not provide an evidential basis for interfering with the processes carried out at the time.21 Although leave to appeal was granted, the appeal was dismissed.
[18] There are now several decisions of this Court, however, in which the Court has quashed convictions where it was satisfied the appellant’s intellectual disability prevented him from participating sufficiently in the trial process.
[19] In Leapai v Police, Potter J set aside 14 separate convictions entered between May 2002 and November 2010.22 These related to offending that had occurred between December 2001 and November 2010. Three of the convictions were entered prior to 1 September 2004, when the CJA was still in force.
16 At [11].
17 R v L, above n 12.
18 At [11].
19 Lawler v R, above n 15, at [9].
20 At [55].
21 At [60]-[63].
22 Leapai v New Zealand Police [2012] NZHC 708.
[20] Potter J referred to Australian23 and English24 authorities in which the courts set aside convictions where the offender had pleaded guilty to charges in circumstances where he was clearly unfit to plead or stand trial. Potter J agreed with both the appellant and the Crown that it was appropriate to set aside the convictions given the “unique circumstances of [the] case”, and the fact that the expert clinicians were unanimous that the appellant had never been, and was unlikely ever to be, fit to stand trial.25
[21] In RC v Police, Woolford J followed the approach taken by Potter J in Leapai.26 The appellant in that case was convicted on a charge of indecently assaulting a nine year old girl in 2005. He had subsequently been found unfit to stand trial under the CPMIP Act on three separate occasions after being charged with similar offending. The Crown agreed the conviction for the 2005 offending should be set aside on the ground that the appellant was clearly unfit to stand trial at the time the conviction was entered.
[22] Similarly, in Paraha v Police, Palmer J set aside a conviction for wilful damage entered in 2015 following a guilty plea to offending that had occurred the previous year.27 As in RC v Police, the offender had subsequently been charged with other offending and found unfit to stand trial on those charges under the CPMIP Act. The Crown agreed it was open to the Court to infer a miscarriage of justice had in all likelihood occurred in relation to the earlier offending.
[23] In Wilkinson v Police the appellant had pleaded guilty to a charge of indecently assaulting a 16 year old girl in January 2012.28 He was subsequently charged with similar offending in 2016 but found unfit to stand trial under the CPMIP Act. The psychiatrists who assessed the appellant as being unfit to stand trial in 2016 were then asked to consider whether he was also likely to have been unfit to plead to the charge in 2012. They prepared a joint opinion confirming that in their view the extent and severity of the appellant’s impairments with regard to his understanding of the legal
23 R v AAM, ex parte Attorney-General [2010] QCA 305.
24 R v Walton [2010] EWCA Crim 2255.
25 Leapai v New Zealand Police, above n 22, at [26].
26 RC v New Zealand Police [2014] NZHC 1267.
27 Paraha v New Zealand Police [2017] NZHC 2001.
28 Wilkinson v New Zealand Police [2017] NZHC 1737.
process were such that on balance he probably would have been unfit to stand trial in 2012. This evidence persuaded Churchman J that a miscarriage of justice had occurred in relation to the 2012 charge, and he quashed the conviction.29
Factors suggesting leave should not be granted
[24] Several factors suggest leave should not be granted. The most obvious of these are the age and number of the convictions. Mr Christie sustained 39 convictions between 25 September 1995 and 22 October 2015 as follows:30
1995 - 1 1996 - 4 1997 - 5 1998 - 5 1999 - 1 2000 - 3 2001 - 9 2002 - 1 2003 - 1 2004 - 3 2006 - 4 2015 - 2
[25] There has obviously been very significant delay in lodging the appeal because it relates to convictions entered between 3 and 23 years ago. The bulk of these were entered between 1997 and 2001, when Mr Christie was aged between 22 and 26 years. Mr Christie has not provided any reason for his delay in filing the application for leave to appeal. Ms Vear advises me, however, that his counsel decided to seek leave to appeal on his behalf after they became aware of the circumstances leading to Mr Christie being declared unfit to stand trial in 2016.
[26] An application for leave to appeal against convictions entered such a long time ago also brings into play the principle that there needs to be finality to litigation. Society expects that sentencing decisions made in the distant past will not be disturbed without good cause. Furthermore, Mr Christie completed serving the sentences imposed as a result of the convictions many years ago. He will gain little in practical
29 At [46].
30 Using in each case the date on which Mr Christie was sentenced.
terms from the proposed appeal other than the removal of the convictions from his criminal history.
[27] In addition, the Crown is undoubtedly prejudiced to a significant degree because the police files relating to the charges that led to the convictions are no longer available. The court files are also no longer available. The Crown is therefore prevented from providing the Court with information regarding the circumstances in which the convictions were entered and, in particular, the extent to which Mr Christie received legal advice before he pleaded guilty to the charges.
[28] All these factors suggest leave to appeal out of time should not be granted. As will often be the case, however, the merits of the proposed appeal are also very important.
The merits
[29] I propose to separately consider the merits of the application for leave to appeal in relation to the convictions that were entered whilst the CJA was in force and those that relate to the period after the CPMIP Act came into force on 1 September 2004.
A. Convictions entered prior to 1 September 2004
[30] All but six of Mr Christie’s previous convictions were entered prior to the CPMIP Act coming into force on 1 September 2004. They relate to offending that occurred at regular intervals between 1995 and 2004. Much of this involved acts or threats of violence directed by Mr Christie towards his partner or members of his family. Mr Christie also has convictions sustained during this period for burglary, wilful damage, possession of an offensive weapon and disorderly behaviour.
[31] Ms Li for the Crown submits, correctly, that the issue of whether Mr Christie was fit to plead when these convictions were entered is necessarily fact and context specific. She points out that the proposed appeal relates to numerous charges, and the Court is being asked to determine whether Mr Christie’s intellectual disability prevented him from receiving a fair trial on each. Ms Li submits it is not possible for the Court to undertake that analysis on the evidence presently available. In particular,
she contends the Court does not have sufficient material before it to make an informed decision as to whether Mr Christie was able to participate sufficiently in the trial process on each charge that led to a conviction to prevent a miscarriage of justice from occurring.
[32] I agree with this submission in that I acknowledge there are significant gaps in the factual material before the Court. In particular, there is no way of knowing whether Mr Christie pleaded guilty to the charges on which he was convicted between 1995 and 2004 or the advice he received before doing so.
[33] Ms Vear also acknowledges that the issue of Mr Christie’s fitness to plead prior to 1 September 2004 was correctly decided in terms of the CJA. This means the decisions cannot be regarded as erroneous in either law or fact. That concession would ordinarily preclude an appeal against conviction from succeeding.
[34] Ms Vear points out, however, that there are several contemporaneous indicators to suggest a miscarriage of justice is likely to have occurred. The first of these is that Mr Christie was sentenced on many of the charges within a short time of the offending having occurred. Many convictions were entered within a few days of the offences having been committed. I accept Ms Vear’s submission that this suggests Mr Christie entered guilty pleas to the charges, and was probably represented by a duty solicitor when he did so. This increases the likelihood that those who were advising him did not spend sufficient time with him to recognise that he may not have fully understood what he was doing when he entered his pleas.
[35] I also accept Ms Vear’s submission that the present case differs in one important respect from many of the others to which I have referred. The assessments that were undertaken between 1994 and 2004 for the purposes of the CJA mean that contemporaneous assessments of Mr Christie’s mental state are available in the present case. The Court is not being asked, as was the case in Lawler, to accept a retrospective psychiatric assessment made many years after the event. I therefore see no impediment in principle to this Court determining, in the exercise of its inherent jurisdiction, whether a miscarriage of justice has occurred because Mr Christie was convicted in circumstances where he was not mentally fit to plead or stand trial.
[36] Between May 1994 and February 2004 four psychiatrists prepared reports to assist the District Court to determine whether Mr Christie was fit to stand trial under the CJA on charges then before the Court. These were prepared on 17 May 1994, 24 November 1995, 17 October 1996 and 12 January 2004 respectively.31
[37] The psychiatric reports prepared between May 1994 and February 2004 were provided to the District Court at intervals during the period covered by the historic offending, and provide a remarkably consistent insight into the extent to which Mr Christie’s intellectual disability was likely to have affected his ability to plead and stand trial during this period.
[38] Each of the psychiatrists concluded Mr Christie suffered from an intellectual disability likely to have been caused by a traumatic brain injury sustained when he was five years of age. Each also concluded, however, that although Mr Christie’s disability was likely to pose considerable problems for him in understanding and responding to the trial process, he was not mentally disordered for the purposes of s 108 of the CJA. Each psychiatrist therefore considered he was fit to stand trial.
[39] The reports confirm Mr Christie has been subject to an intellectual disability since he was five years of age, and this will not improve or resolve over time. He has also suffered from epilepsy, probably caused by or related to the injury to his brain, with seizures being observed from 1993. Fortunately, his epilepsy has responded to regular treatment using medication.
[40]Mr Christie was assessed in December 2003 as having an IQ between 40 and
54. This is consistent with a moderate intellectual disability. A report prepared in January 2004 stated that his IQ is below that of 99 per cent of persons of the same age. Mr Christie’s verbal comprehension was also very poor. His percentile rank under this head was 0.2. These findings are consistent with observations made in the psychiatric reports prepared nearly ten years earlier.
[41] The first psychiatric report, dated 17 May 1994 when Mr Christie was 19 years of age, contains the following observations:
31 In date order, the reports were prepared by Dr Nannestad, Dr MacKay, Dr Seth and Dr Jeory.
I found over the course of the interview that he gave different answers to the same questions. Murray McKenzie [the supervisor of a hostel where Mr Christie had been staying] has noted over the past week that if he is given a leading question he will give the answer he thinks that you want. It is not uncommon for intellectually handicapped people to try and make up for not comprehending the flow of events by simply giving the answer that they think people want. For instance, when I asked him if he heard voices when there is nobody present, at one time he replied yes and another time he replied no.
I think he is suggestible, which is likely to be a problem in the court. If he is asked a line of questions, especially if he is feeling overawed or uncomfortable, he may simply give answers that he thinks will please the questioner and so incriminate himself without regard to the truth.
…
His very simple speech is probably a reflection of his thinking. I doubt that he would have an understanding of the connection between a number of events, and so does not have a normal capacity for forethought and reasoning things out. In particular, I doubt that he would appreciate how his answers that he gives in the court room might incriminate him or otherwise and lead to the final verdict and any sentence.
…
Both his mother and Murray McKenzie doubt that he can follow the court procedure. He has no idea how to get the services of a lawyer and it is obvious that someone else will have to take care of him and arrange this for him.
As above I think he is able to give his version of the facts to his counsel. The added stress of appearing in court might make this more difficult for him, because he seems to me a retiring sort of boy, so I would not predict that he would be able to give his version of facts on his own behalf in the court.
I also think that he is suggestible and so questioning in court by defence and prosecution probably would not yield any useful information, and his replies in those circumstances would not necessarily bear any relation to the truth. I think he would be trying to reply in the way that he thought was required of him, rather than being deliberately misleading.
Because his comprehension is limited and slow, I doubt he would be able to follow evidence against him if it was given in the court. Also, I do not think that he would be able to decide himself what defence to offer.
[42]The second report, dated 24 November 1995, contains similar comments:
Clearly his comprehension is quite limited and quite slow. It would be difficult I suspect to follow evidence against him if it was given in Court.
As the case proceeds and Counsel is assigned, it would be my opinion that Counsel would be advised to interview him with a great deal of care and be prepared to go over the same ground very carefully, asking the simplest of questions and, as noted above, avoiding open-ended questions in favour of a choice between simple options. Lawrence is clearly able to follow this and I
would have thought in these circumstances answers given, would be closest to the truth.
In summary then, with regard to disability, I do think that his intellectual handicap will cause some degree of difficulty in the Court case. It is my opinion however, as I understand both the Mental Health Act, and the Criminal Justice Act that I do not believe that he is under disability within the precise meanings of these Acts. This is as helpful as I can be.
[43] The next report, dated 17 October 1996, contains similar observations. Under the heading “Disability”, the writer of the report states:
I felt that Mr Christie was in fact fit to plead, he understood at a rather simplistic level the differences between guilty and not guilty and was able to understand what he had been charged with. He realised what the consequences of a conviction of the alleged charge would be and the basic concept of an oath. He was aware of the purpose of the trial and could identify the different people within the courtroom. Having said this one had to explain things to him very slowly for him to understand but in reality it may turn out that he would have great difficulty in the court to actually follow the procedure and instruct counsel as he tends to understand things at a very basic level and he would be quite suggestible if asked questions that he did not fully comprehend due to his intellectual handicap. It may even be possible that Mr Christie would answer questions inappropriately as he would feel that it was the answer that was required rather than the correct answer. We shall have to see whether or not he actually copes with the process in court.
[44] Seven years later, Mr Christie was charged with threatening to kill, assault with a weapon and contravening a protection order. A report prepared for the purposes of the CJA and dated 13 February 2004 confirmed that Mr Christie remained moderately intellectually disabled, with an IQ between 40 and 54. When assessing his fitness to stand trial, the report writer observed:
3.Re: Legal Disability as defined by Section 108 of the Criminal Justice Act
Although Mr Christie’s presentation is qualified as a moderate intellectual deficiency, special examination related to the issue of legal disability did not confirm that he did have significant difficulties in comprehending his current legal situation. It is true that his understanding is simplistic and that he requires clarification together with a lot of plain explanations. However, Mr Christie managed to explain properly the roles of the particular Court officials, to show that he knew the pleas available to him, that he was able to make a difference between wrong and right, and to discuss possible outcomes of his Court case.
On the basis of that examination, I concluded that Mr Christie’s presentation did not satisfy the description and definition of legal disability as per Section 108 of the Criminal Justice Act.
[45] The passages set out above suggest Mr Christie has always had a basic understanding of the criminal justice process. This includes the available plea options, the roles of participants in the process and the consequences of conviction. They also suggest, however, that it would have been difficult for counsel to have explained the charges to him and to take instructions from him regarding available defences. Furthermore, although Mr Christie can understand matters that are explained to him in clear and simple terms, the psychiatrists have consistently expressed concern regarding his ability to answer questions in court if he gives evidence.
[46] The reports prepared since 1 September 2004 suggest this remains the case. They also give rise to concern regarding the extent to which Mr Christie genuinely understands matters even when they are explained to him in clear and simple terms. By way of example, Mr Christie has numerous convictions for breaching protection orders. At some stage, and probably on numerous occasions, his counsel must have explained to him why he has been charged with that offence. Notwithstanding this advice a psychiatric report prepared on 9 May 2008 suggests the fact that Mr Christie continues to offend in this way is probably related to his intellectual disability because he may not remember or understand the significance of legal conditions.
[47] I consider the reports prepared between 1994 and February 2004 support Ms Vear’s submission that Mr Christie’s intellectual disability is likely to have resulted in him entering guilty pleas without properly understanding the nature of the charges and/or any defences that may have been open to him. That risk is increased by the fact that Mr Christie was convicted and sentenced on many of the charges within a very short time of the offending having occurred.
[48] To the extent that Mr Christie may have been found guilty on any of the charges following a defended hearing, there must be a real risk that his intellectual disability resulted in him telling those who questioned him in court what he believed they wanted to hear rather than the truth as he remembered it. It follows that I consider a miscarriage of justice is likely to have occurred regardless of whether Mr Christie pleaded guilty to the charges or was found guilty following a defended hearing.
[49] These findings effectively answer Ms Li’s submission that the Court cannot grant leave because there is insufficient material available in relation to each of the convictions the Court is being asked to set aside.
[50] The merits of the proposed appeal therefore militate strongly in favour of leave to appeal being granted in relation to the convictions entered prior to 1 September 2004.
B The convictions entered after 1 September 2004
The 2006 charges
[51] The first of Mr Christie’s six convictions entered after 1 September 2004 was for contravening a protection order on 8 March 2006. He was then arrested and charged with threatening to kill and contravening a protection order (x2) five days later, on 13 March 2006. Mr Christie was convicted and sentenced to two years supervision on these charges on 28 April 2006.
[52] By the time Mr Christie faced these charges the CPMIP Act was in force but the offending in 2006 did not trigger the procedures set out in that Act. The speed with which Mr Christie was sentenced on the 2006 charges again suggests he must have entered guilty pleas at an early stage and probably with a minimum of legal advice.
[53] Mr Christie was arrested again on or about 2 April 2008 on charges of contravening a protection order, threatening to kill and assaulting his partner. These charges triggered the procedures set out in the CPMIP Act for the first time. Dr Lowe of Regional Forensic Psychiatry Services concluded in a report dated 9 May 2008 that Mr Christie was not fit to stand trial for the following reasons:
3. Re: Fitness to Stand Trial as per Section 4 of the Criminal
Procedure (Mentally Impaired Person) Act 2003
Based on my interview with Mr Christie I believe that he is not fit to
stand trial. However, I accept that this is debatable since it depends on the threshold for this decision. In the past, Mr Christie was always found fit to stand trial when assessed. However, the legal climate was different and it was not possible for intellectual disability to contribute towards a definition of legal disability. Furthermore, while he was always found fit to stand trial there were concerns raised about his
suggestibility in court and his tendency to give answers based on what he thought people wanted to hear, rather than based on fact.
In my assessment, Mr Christie demonstrated a basic understanding about the nature of the charges against him, the pleas available, consequences of being found guilty and roles of certain people in the court room. However, I was concerned that he did not appreciate the significance of the charges laid against him. There was little reasoning behind his choice of plea and he required much encouragement to discuss this and his court case in any depth. He also became fatigued and gave up easily when asked to explore information in his caption summary: this appeared to be due to difficulties in comprehending the information and manipulating it. I also had concerns about his ability to understand the relevance of evidence brought against him in a Court trial.
In summary, while Mr Christie has a basic understanding of court process I believe he is impaired in his ability to understand and appreciate the complexity of his situation. I am also concerned about his ability to comprehend and manipulate information in a Court room or instruct his counsel because he requires much time, repetition and clarification in order to understand even basic information.
[54] As will be evident from the above passage, Dr Lowe accepted her conclusion was “debatable” because she was not sure how the courts would interpret the threshold for fitness contained in the CPMIP Act. Convictions were not subsequently entered, however, for the charges Mr Christie was facing when the report was prepared. It is therefore possible the Court accepted Mr Christie was not fit to stand trial in May 2008. On the other hand, there is no evidence that the Court made orders under ss 24 or 25 of the CPMIP Act in 2008 as would have been the case if he was found unfit to stand trial. Furthermore, Dr Lowe’s report notes that the complainant, Mr Christie’s partner, had asked the police to drop the charges and they may ultimately have been dismissed for that reason.
[55] Regardless of the outcome of the charges, I consider Dr Lowe’s findings are broadly consistent with those contained in the earlier reports between 1994 and 2004. I consider that on the balance of probabilities Mr Christie is likely to have been unfit to stand trial in 2006 for the same reasons outlined in the earlier reports and those given by Dr Lowe in her report.
[56] I therefore consider a miscarriage of justice is likely to have occurred in relation to the convictions Mr Christie sustained in 2006.
The 2015 charges
[57] On 3 September 2015 Mr Christie was sentenced to two months imprisonment on a further charge of breaching a protection order on 12 August 2015. Following his release from prison Mr Christie was arrested again for breaching his prison release conditions on 11 September 2015. On 22 October 2015, he was directed to come up for sentence if called upon to do so on that charge.
[58] The procedures under the CPMIP Act were not triggered by these charges. Given the short space of time between arrest and sentence it is also likely that he pleaded guilty to both charges at an early stage and with the assistance of a duty solicitor.
[59] In or about May 2016 Mr Christie was arrested again and promptly pleaded guilty to charges of contravening a protection order and wilful damage. The complainant in relation to these charges was again his partner. On this occasion the procedures under the CPMIP Act were triggered, and Mr Christie was subsequently found unfit to plead or stand trial. His guilty pleas were vacated and in January 2017 he was the subject of an order making him a care recipient under the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003. He then received care and rehabilitation in a supervised community setting for the next twelve months before the order was discharged.
[60] Before the 2016 charges were ultimately resolved, the District Court received no fewer than five reports prepared by psychiatrists and psychologists who examined Mr Christie for purposes relating to the findings and orders to be made under the CPMIP Act. The observations made in these reports are again consistent in all material respects with those made in the reports prepared between 1994 and 2008. They confirm the ongoing impact Mr Christie’s intellectual disability continues to have on both his everyday life and his tendency to offend. An assessment carried out in August 2016 revealed that Mr Christie’s IQ remains at 43, and is below that of 99.9 per cent of his peers.
[61] A report dated 16 November 2016 prepared by Dr Clare Brindley, a registered clinical psychologist, records that Mr Christie has a basic understanding of the trial
process and the roles of the participants in that process. He also understood the consequences of being found guilty or not guilty of the charges. However, and in keeping with the earlier reports, Dr Brindley considers that Mr Christie remains suggestible, in that he is likely to say what he thinks others expect or want to hear. She believed this may impact on his capacity to participate meaningfully in the proceedings then before the Court.
[62] Dr Brindley’s conclusion regarding Mr Christie’s ability to instruct counsel is as follows:
(c) Ability to instruct counsel for the purpose of mounting a defence
56.Mr Christie was aware of how to contact his lawyer and knew her first name, and said he had spoken to his counsel, but said he was not sure how he might construct his defence. Mr Christie has an impairment that means he has profound difficulty paying attention to information and attending to questions posed. He also finds real difficulty in his ability to respond verbally. Due to his deficits, he also experiences real difficulties in recollecting / recalling information from short-term and longer-term memory. Mr Christie’s cognitive impairments would limit his capacity to follow and recall information provided by counsel, and follow evidence presented in court so as to assist counsel with his defence.
[63] These observations mirror those that have been made consistently by health professionals since 1994. They persuade me that a miscarriage of justice is also likely to have occurred in relation to the 2015 charges. Mr Christie’s fitness to stand trial on those charges ought to have been determined in the same way as his fitness to stand trial on the 2016 charges.
Result
[64] I accept without reservation that there are factors suggesting leave to appeal should not be granted. These include the age and number of the convictions to which the application relates, the prejudice to the Crown and the principle that there needs to be finality in litigation. I am satisfied, however, that the material contained in the psychiatric reports prepared between 1994 and 2016 confirm it is unlikely that Mr Christie has been fit to plead for the whole of that period. That factor outweighs the factors suggesting leave should not be granted because a miscarriage of justice will result if the convictions are permitted to stand.
[65] The application for leave to appeal out of time is therefore granted. The appeal is allowed and the convictions on all charges are set aside.
Lang J
Solicitors:
Public Defence Service, Auckland Kayes Fletcher Walker, Manukau
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