Legal Research
Cases
Epere v Police

Epere v Police

Case [2022] NZHC 866 29 April 2022

Miscarriage of Justice

Fitness to Stand Trial

Intellectual Disability

Appeal

Unconscionable Conduct

Judicial Review

Criminal Law

No judgment structure available for this case.

Type to search within this case.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2021-404-175 CRI-2021-404-177 CRI-2021-404-178 CRI-2021-404-179 CRI-2021-404-180 CRI-2021-404-181 CRI-2021-404-182 CRI-2021-404-202 CRI-2021-404-203

[2022] NZHC 866

BETWEEN
RAYMOND WILLIAM EPERE

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 21 March 2021

Counsel:

C G Wright for Appellant

I L M Archibald for Respondent

Judgment:

29 April 2022

JUDGMENT OF BREWER J

This judgment was delivered by me on 29 April 2022 at 11.30 am

Registrar/Deputy Registrar

Solicitors:
Public Defence Service (Auckland) for Appellant Meredith Connell (Auckland) for Respondent

EPERE v POLICE [2022] NZHC 866 [29 April 2022]

Introduction

[1] Mr Raymond Epere applies for leave to appeal his entire criminal history of convictions. Mr Epere has 16 convictions entered in the period between 2001 and 2013. The appeal is brought on the basis that a miscarriage of justice has occurred. Mr Epere is diagnosed as having an intellectual disability. He has had this disability since childhood. It now appears unlikely that he has ever been fit to stand trial or plead in respect of any of his previous charges.

[2] The appeal is filed out of time. Mr Epere therefore seeks an extension of time for filing the notice of appeal. The respondent accepts that leave to appeal should be granted. It also agrees that the appeal against convictions should be allowed.

[3]I will address the application for leave before turning to the substantive appeal.

Background

[4] Between 2001 and 2009, Mr Epere probably pleaded guilty to 10 charges, all for relatively minor offending.1 This included offences such as consuming cannabis, failing to answer bail and unlawfully taking a motor vehicle. There is also one charge of male assaults female.

[5] In 2011, Mr Epere was found unfit to stand trial for the first time. This was in respect of charges of theft, burglary, possession of a weapon, receiving property (under
$500) and failing to answer bail.

[6] Nevertheless, Mr Epere was convicted of further offences in 2012 and 2013. The further offending involved charges of trespassing, disorderly behaviour, breaches of a local liquor ban, failing to answer bail and possession of instruments for the use of cannabis. It appears that the issue of fitness to stand trial was not raised. Mr Epere pleaded guilty to all the charges.

1 Due to a lack of documentation it is not possible to determine conclusively if Mr Epere in fact entered guilty pleas to all charges or was convicted after a defended hearing. However, the small space of time between the offence and sentence date for some of Mr Epere’s convictions indicates that he likely entered guilty pleas. Mr Epere also told one expert that he always pleaded guilty to charges.

[7] In 2020, Mr Epere was found unfit to stand trial for a second time. On this occasion his offending was more serious. It involved a charge of assault with intent to injure.

[8] Following the finding in 2020 that Mr Epere was again unfit to stand trial,…

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 Epere v Police

Details

AGLC: Epere v Police [2022] NZHC 866
Case: [2022] NZHC 866
Decision Date: 29 April 2022

CaseChat Overview and Summary

Raymond William Epere appeals his 16 criminal convictions on the basis that he was intellectually disabled and therefore unfit to stand trial. He seeks an extension of the appeal time and argues that a miscarriage of justice occurred because he was unfit to stand trial. The court grants leave to appeal and allows the appeal. Raymond Epere has an intellectual disability that significantly impairs his cognitive ability. He has difficulty understanding court processes and the consequences of a guilty plea. He has little understanding of the role of the judge, jury, prosecutor, and his own lawyer. He indicated to one expert that he always pleaded guilty because he never tells lies. He stated that he would never tell his lawyer what to do and simply did what he was told. Every expert was of the opinion that Mr Epere would likely be deemed unfit to stand trial. The evidence shows that Mr Epere’s significant intellectual impairment likely occurred during his developmental years. His disability can be considered permanent. There is no evidence to suggest that Mr Epere gained any level of knowledge through his earlier interactions with the court that may have assisted him in later interactions. To the contrary, the expert evidence is that Mr Epere’s capacity to interact with the court is unlikely to have fluctuated significantly over the last decade. The court concludes that it is unlikely that Mr Epere ever “fully appreciated the merits of his position” or “made an informed decision to plead guilty”. The immutable characteristics of his disability are such that he was likely never fit to plead or stand trial at any point in his criminal history. A miscarriage of justice has therefore occurred. The court allows the appeal against all of Mr Epere’s previous convictions and enters verdicts of acquittal.

Orders