Erwood v Ministry of Social Development HC Wellington CRI 2010-485-24

[2010] NZHC 975

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI 2010-485-24

BETWEEN  ROBERT JOHN ERWOOD Appellant

ANDMINISTRY OF SOCIAL DEVELOPMENT Respondent

Hearing:         18 May 2010

Appearances: R J Erwood in person

K E Salmond for Respondent

Judgment:      22 June 2010

JUDGMENT OF MILLER J

[1]     This is a somewhat unusual appeal against refusal of permanent name suppression.

[2]      Mr Erwood was charged with benefit fraud, in that between 2001 and 2006 he used Work and Income review forms with intent to obtain a pecuniary advantage, in the form of an invalid’s benefit and disability allowance.[1]   The benefit is means- tested, and Mr Erwood failed to disclose income and assets held in a false name.  His deception earned him $71,000 in benefit payments to which he was not entitled.

[1] Crimes Act 1961, ss 228 and 229A.

[3]      These facts were found after a hearing in the District Court in August and September 2009.   However, Mr Erwood was not convicted, for it was common ground between the Ministry of Social Development and Mr Erwood that he was

unfit to stand trial at that time.  The Court accordingly considered whether the actus

ROBERT JOHN ERWOOD V MINISTRY OF SOCIAL DEVELOPMENT HC WN CRI 2010-485-24  22 June

2010

reus of the offence had been committed, and found that it had.[2]    It went on to determine, on the evidence of health assessors, that Mr Erwood was unfit to stand trial.   He was ultimately released after an inquiry into the most suitable means of dealing with him.

[2] Criminal Procedure (Mentally Impaired Persons) Act 2003, ss 9 and 13.

[4]      At the ‘liability’ hearing in the District Court in August and September 2009

Mr  Erwood  appeared   in  person,  but  the  Court  also  appointed  an  amicus, Mr Bamford.  His appointment was terminated in a reserved judgment delivered on 2

November, the Judge stating:

When the prosecution began the Court appointed Mr Bamford as Amicus, because of the Mental Impairment issues and because of the Defendant’s asserted  impecuniosity.    I  consider  the  appointment  of  Mr  Bamford  as Amicus has now fulfilled its purpose.   Whether such an appointment is required for final resolution of this matter is to be considered again.  There appears to be no reason that Mr Erwood cannot retain his own counsel. There remain for determination issues of Suppression of the Defendant’s name, and resolution after consideration of the provisions of CP(MIP)A. The  Defendant  is  now  to  be  remanded  to  11  November  at  Wellington District Court when I am sitting in the Wellington Court.  He is directed to appear at 2pm.  His bail is to continue until then.

[5]      On 14 December the Judge issued a minute following a hearing held to determine what was to happen next.  She recorded that further psychiatric evidence was  to  be  provided.     She  had  found  that  Mr  Erwood  was  able  to  afford representation, but she asked that he provide from the Official Assignee (he by now having been bankrupted in separate proceedings) a statement of his assets and liabilities so she could assess his claim that he could not afford representation.  She also directed that the minute be given to counsel who had been appointed amicus in the bankruptcy proceeding, inviting him to file a memorandum if she had misunderstood Mr Erwood’s ability to fund his own counsel.  It does not appear that any memorandum was filed.  However, the file includes a report of 11 January 2010 from  the  Official  Assignee  indicating  that  Mr  Erwood  has  funds  of  more  than

$500,000.

[6]      The hearing that is the subject of this  appeal  was held on  12 February. Mr Erwood appeared in person, having not instructed counsel.   The duty solicitor

appeared briefly for him but had seen Mr Erwood for only 10 minutes and told the Judge that he was in no position to give Mr Erwood advice.  Mr Erwood accordingly made submissions himself.

[7]      The Judge ordered that he should be released pursuant to s 25(1)(d) Criminal

Procedure (Mentally Impaired Persons) Act, 2003, recording that:

The two reports of health assessors confirmed that although Mr Erwood has a clear diagnosis of a major mental illness, treatment is currently adequate. One of the assessors considered that there were sufficient concerns about his ability to care of himself and his threat of safety to self to bring him within the definition of mental disorder under the Mental Health Compulsory Assessment and Treatment Act, while the other assessor did not.

[8]      The Judge then turned to the question of name suppression.  After referring to the leading authorities, she noted that in this case it was necessary to consider the implications of her findings of a) responsibility under the Criminal Procedure (Mentally Impaired Persons) Act and b) unfitness to stand trial:

It may be that the unfitness to stand trial finding must be accompanied by an inference of vulnerability in the defendant that generally the presumption in favour of open reporting will yield to the particular facts of the case.

[9]      The Judge considered the expert evidence, which was to the effect that name suppression would be best for Mr Erwood from a psychiatric perspective.   One expert, Dr Nezhad, stated that:

After  reviewing  available  file  history,  evaluating  Mr  Erwood  in  person today, and with consideration of the nature of Mr Erwood’s chronic mental illness, it is likely that loss of name suppression with regard to the current charges against him will have significant detrimental effect on his mental health with exacerbation of paranoia and thought disorganisation impacting capacity for basic self care.

[10]     She noted that these opinions had been proffered at a time when treatment had stabilised Mr Erwood’s condition.   He had previously been diagnosed as significantly disorganized and afflicted by impaired judgement.  The most disabling manifestation of illness was his obsession with legal matters, meaning that loss of name suppression might exacerbate his illness.   However, Mr Erwood’s shrewd submissions appeared to exploit his mental illness.

[11]     Mr Erwood had argued that suppression ought follow unless a public interest in publication could be established.  The Judge recognised that that inverted the test. The mere fact of disposition under the Criminal Procedure (Mentally Impaired Persons) Act did not entitle him to suppression.   Rather, the disposition stood somewhere between a conviction and an acquittal.  Even in the case of an acquittal the open justice principle favours reporting.   It was necessary for Mr Erwood to point to circumstances that justified a departure.

[12]     The Judge was alive to the risk that his mental illness would be exacerbated by refusing suppression, but she considered that such effect was more likely to flow from  participation  in  such  proceedings  than  from  publicity  about  them.    His treatment providers might need to exercise additional care and support for a time. The offending was serious.  The mental illness meant there was no clear reason for the public to know about his character, but he might also expect a degree of public tolerance because of his illness.   On balance, none of the relevant considerations strongly supported a suppression order, so the open justice principle must prevail.

[13]     Mr Erwood appealed.  Before the hearing he asked this Court to restore the appointment of amicus.   Ronald Young J refused to do so by minute of 23 April, pointing out that amicus is appointed to assist the Court not to represent Mr Erwood, that  the  Court  did  not  need  the  assistance  of  amicus  in  this  matter,  and  that Mr Erwood could hire his own counsel.  Before the hearing of his appeal Mr Erwood complained that he is still under treatment, and still vulnerable.   He did file submissions, however, for the purpose of having Ronald Young J’s direction reversed.   He maintained that he was unable to file submissions and unable to instruct counsel.  He also sought permission not to appear, in the apparent hope that the hearing would be confined to the question of reappointing amicus.   That was refused, the Registrar advising him at my direction that he should appear because the hearing may proceed on the merits.

[14]     Mr  Erwood  accordingly  appeared.    He  first  pursued  the  appointment  of amicus.   It rapidly became apparent that Mr Erwood really wanted Court-funded counsel to argue his case.  He understood the proper role of amicus, however, so he argued that the appeal raises difficult questions on which the Court would be assisted

by amicus, especially when he is simply incapable of representing himself.  For the latter proposition he pointed to the District Court finding that he is not fit to stand trial, arguing that it necessarily follows he is not able to argue his own appeal either.

[15]     I agree that the appeal raises unusual issues.  Further, I do not attach weight to the District Court finding that Mr Erwood is able to appoint and pay counsel.  I agree that he has the intellectual and financial resources to do so, albeit that he might need the Official Assignee’s consent, but I am prepared to treat his refusal as a manifestation of the mental illness that undoubtedly afflicts him, seemingly manifesting itself in an obsession with legal issues.

[16]     The decision to appoint amicus or not is entirely discretionary.  The question is not whether amicus must be appointed but whether, the Court having chosen not to do so, any injustice was done to Mr Erwood through inadequate self-representation. Notwithstanding what I have just said, I do not accept that the Court requires amicus to assist it, still less that amicus should represent Mr Erwood.  Name suppression is familiar territory, and there is a very full record.  Having reflected on submissions made at the hearing and filed before and after it, I am unable to see that any injustice may be done by having Mr Erwood represent himself.   I decline to revisit Ronald Young J’s refusal to appoint amicus.

[17]     Further, it does not necessarily follow from the finding of unfitness to stand trial that Mr Erwood is incapable of arguing his own appeal, for two reasons.  First and most importantly, he is in fact capable.  Like the District Court Judge, I found him shrewd and alert to the issues.  He demonstrated knowledge of Court protocol and processes.   He pointed to relevant considerations, while courteously declining (citing incapacity) an invitation to expand on the merits.  (I required him to address the merits after reserving the question whether amicus would be appointed, recognising that a further hearing would be required if an appointment was made.) He did a better job than many lay appellants, his repeated protestations of incapacity notwithstanding.  I observe that one of the health assessors, Dr Wettasinghe, stated:

Mr Erwood has survived without medication 2-3 decades of being unwell, and he presents without signs of gross self neglect.   He has successfully navigated through a series of legal encounters and seems to know what he is doing and he is good at soliciting support.   The capacity to take care of

himself could also be viewed in terms of having insight into his disability and compliance with treatment, and Mr Erwood now acknowledges having schizophrenia and reports largely being compliant with the recommended treatment over the last year

while Dr Barry-Walsh concluded that he has an abnormal state of mind but noted that:

Mr Erwood has been able to pursue litigation and also to accumulate a considerable sum of money.  The relationship between Mr Erwood’s mental illness and his litigation is not entirely clear.  It is likely that his persecutory thinking contributes to his zeal towards litigation although I would also observe  that  litigation  is  a  process  in  itself  which  can  generate  and exaggerate apparent mental disorder or disturbance.

[18]     There is a good deal of force in Dr Wettasinghe’s comment that Mr Erwood is good at soliciting support.  A number of the reports were provided at his request. (Indeed, Dr Wettasinghe made a minor change to his report, indicating that he did not  rule  out  Mr  Erwood  needing  a  legal  guardian,  at  Mr  Erwood’s  request.) Mr Erwood plainly has an astute knowledge of the legal issues confronting him.

[19]     Second, it is not correct that Mr Erwood is presumed incapable for present purposes.    He argued  that  a  finding that  an  accused  is  not  fit  to  stand  trial  is synonymous with a finding of incapacity for purposes of a suppression order arising out of the same proceeding.  The two are closely connected, of course, but a finding of unfitness does not establish that he is unable to argue the present application.

[20]     Unfitness to stand trial is a matter of procedural fairness, a recognition that it would be unfair to prosecute a person for an imprisonable offence where that person is unable from mental impairment to conduct a defence or instruct a lawyer to do so.[3]

The Criminal Procedure (Mentally Impaired Persons) Act 2003 applies to criminal proceedings, which would normally include interlocutory or other applications connected with such proceedings.[4]    Name suppression results from an application connected with the proceeding.   But the Court’s finding of unfitness is concerned only with trial matters, such as the ability to plead and conduct a defence.  That is so

because the underlying risk of unfairness arises when an accused is in jeopardy of conviction  and  imprisonment.    In  other  words,  the  question  is  not  whether  the accused is mentally impaired, but whether his impairment is such that he should not face trial for an imprisonable offence.

[3] Warren Brookbanks and Sandy Simpson Psychiatry and the Law (Wellington per Lexis Nexis, 2007) at 157. 

[4] Criminal Procedure (Mentally Impaired Persons) Act 2003, s 5.  “Proceeding” is defined in this way in the Evidence Act 2006.

[21]     A  finding  of  unfitness  does  not  purport  to  be  a  general  finding  for  all purposes connected with the proceeding.  As a factual matter the finding necessarily carries with it a conclusion that the accused is mentally impaired, but that is not the same thing as saying that he is unfit for purposes other than trial.  Indeed, it has been held that there are distinctions between ability to plead and ability to make decisions

during a trial.[5]

[5] R v Roberts (No.2) HC Auckland CRI 2005-092-14492, 22 November 2006;   R v De’Wes HC Gisborne CRI 2006-016-3323, 5 November 2008.

[22]     Consistent with that, the Court must afford the accused natural justice when assessing whether the accused is mentally impaired and whether he committed the actus reus of the offence charged.[6]   The legislation requires that he appear unless the Court is satisfied that he is too mentally impaired to come to Court.[7]   He has a right of appeal from such findings, and also from any orders that the Court may make.

These  rights  contemplate  that  the  accused  may  have  sufficient  competence  to exercise his rights although he is ultimately found unable to conduct a defence and hence unfit to stand trial.  If Mr Erwood’s submissions were correct, the procedural rights would be meaningless in any case in which the accused was found unfit, for he would be deemed incapable of exercising those rights.

[6] Sections 10-14.

[7] Section 15.

[23]     Finally,  although  it  is  connected  to  the  trial  and  can  have  adverse consequences for an accused, a decision to refuse suppression is not a sentence.  It is a consequence of the open justice principle, which allows an accused to be named even where he was acquitted.

[24]     For  these  reasons,  I am  satisfied  that  Mr  Erwood  was  able  to  represent himself adequately on this appeal.  Even if he were not, it would not be necessary to appoint amicus, for reasons outlined earlier.

[25]     Turning to the merits, two issues arise immediately.  The first is what weight is to be attached to the Court’s finding that the actus reus was committed.  It is of course not tantamount to a conviction, following which name suppression is rarely granted.  The second is the significance of Mr Erwood’s mental illness, including the effect that loss of suppression may have on his condition.

[26]     So  far  as  the  first  issue  is  concerned,  a  finding that  the  actus  reus  was committed but the accused is unfit to stand trial is plainly not tantamount to a conviction.  Neither is it the equivalent of an acquittal, in relation to which the Court recognises a public interest in knowing the accused’s name.[8]    The legislation has a protective purpose.  Had Parliament considered that name suppression ought follow a finding of incapacity as a matter of course, however, the legislation would have provided for it.  The omission of any such provisions suggests that suppression ought to be approached in the usual way.   Considerations such as the seriousness of the

behaviour and the public interest in knowing the identity of the person are relevant, although  the  public  interest  in  knowing the  character  of  offenders  is  somewhat attenuated when they are mentally impaired.[9]

[8] Lewis v Wilson & Horton Ltd [2000] 3 NZLR 546 at [42].

[9] Lewis v Wilson & Horton Ltd [2000] 3 NZLR 546 at [42].

[27]     Suppression may be appropriate when publication will affect the person’s recovery or rehabilitation.[10]   That is the question of greatest concern in this case.  A number of letters or reports were relied on in the District Court.   They were supplemented in this Court by letters from psychiatrists at a clinic where he is presently  being  treated.[11]    Mr  Erwood  may  experience  cognitive  difficulties including thought disorganisation, executive dysfunction and memory impairment, and his legal difficulties may exacerbate his symptoms.   One assessor, Dr Barry- Walsh, considered on balance, that there is a reasonable basis for believing he is at risk of self-harm or self-neglect generally.   The most negative assessment of his condition is that of Dr Nezhad (paragraph [9] above.)  The other reports are more guarded, but the experts clearly agree that publication is likely to have some detrimental effect on his treatment.

[10] R v B CA4/05, 21 April 2005;   R v Brown-Howarth HC Whangarei CRI 2006-088-2445, 10 December 2007. 

[11] Letters from Dr Choi (6 May 2010) and Dr Romans (17 and 28 May).

[28]     All of these issues were raised in the District Court, and the Judge did not overlook them.  I am not persuaded that she erred in her evaluation.  Mr Erwood is certainly most anxious to avoid publicity, and publicity is likely to fuel his sense of persecution.  I accept that it will be detrimental to his treatment.  But I do not accept that the effect of publicity is any worse than the experience of having the actus reus proved or his fitness to stand trial assessed, processes which he appears to have survived without change to his condition.  He appears to have functioned for many years, largely without treatment, which he is now receiving and which has stabilised his chronic condition.  And the detrimental effect of publicity on his welfare is but one consideration, to be weighed against the public interest in open justice.

[29]     The appeal is dismissed.   The media may publish Mr Erwood’s name and details of the charges and the evidence led.

[30]     Mr Erwood was especially concerned that suppression should extend not just to his name but also to the entire file.  I have dismissed the appeal, but recognising that the file contains psychiatric or psychological assessments, I directed in a minute issued after the hearing that the file not be searched without leave of a Judge.  That direction remains in effect.

Miller J

Solicitors:

Crown Solicitor’s Office, Wellington for Respondent