Fan v Police
[2020] NZHC 2696
•14 October 2020
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2020-404-000131
CRI-2020-404-000132 [2020] NZHC 2696
BETWEEN CHARLES FAN
Appellant
AND
NEW ZEALAND POLICE
Respondent
Hearing: 12 October 2020 Appearances:
Scott Walker for the Appellant
Sarah McKenzie for the Respondent (via AVL)
Judgment:
14 October 2020
JUDGMENT OF MOORE J
[Appeal against conviction]
This judgment was delivered by me on 14 October 2020 at 2:00 pm.
Registrar/ Deputy Registrar Date:
FAN v NEW ZEALAND POLICE [2020] NZHC 2696 [14 October 2020]
Introduction
[1] On 8 August 2018 Charles Fan was sentenced by Judge M J Callaghan in the District Court at Queenstown.1
[2] He had earlier pleaded guilty to two charges of theft2 and one charge of causing loss by deception.3 On each charge he was sentenced to 50 hours’ community work and ordered to pay reparation.
[3] Subsequent events now raise serious questions as to Mr Fan’s mental health at the time of the offending and when he entered his pleas of guilty. A psychiatric report has been obtained which concludes not only was Mr Fan probably unfit to plead, but he was probably also insane at the time of the index offending.
[4] Mr Fan brings this appeal on the basis that he should have been found unfit to plead and/or acquitted on the grounds of insanity and, as a consequence, a miscarriage of justice has occurred and the convictions should be set aside.
The facts and the charges
[5] On 25 May 2018 Mr Fan drove his car into the Z Energy Service Station in Queenstown. He placed $88.36 worth of petrol into his car and left without paying.
[6] Approximately a week-and-a-half later, on 3 June 2018, he did the same thing. This time he poured $89.01 worth of petrol into his car before leaving without paying.
[7] When asked to explain this offending he said he had no money. This offending is reflected in the two charges of theft.
[8] Then, on 2 August 2018 Mr Fan entered a therapeutic massage parlour and obtained a 90-minute massage, at the end of which he was asked to pay. He said he did not have any money. He remained at the premises for about 10 minutes chatting with an employee who again asked him to pay. He got up, left and sat outside. Again
1 R v Fan [2018] NZDC 27584.
2 Crimes Act 1961, ss 219 and 223(d); maximum penalty three months’ imprisonment.
3 Sections 240(1)(d) and 241(c); maximum penalty three months’ imprisonment.
he was asked to pay. He responded with foul language. The Police were called and when asked for an explanation, his response was, “Charge it to my daughter”. This offending is captured by the charge of causing loss by deception.4
Personal factors and psychiatric history
[9] Mr Fan is a 33-year-old man of Taiwanese descent. He has lived in New Zealand since he was 10. He normally lives with his family in East Auckland.
[10] Mr Fan has been diagnosed with bipolar effective disorder. Since May 2012 he has been admitted six times to acute inpatient mental health facilities. Prior to the onset of his illness he was a high-functioning individual with a post-graduate qualification in aeronautical engineering.
[11] His acute mental health relapses have been the result of poor insight into his mental health and his need to take medication. Although he has no obvious criminogenic factors or substance abuse disorders, he has a tendency to be verbally aggressive and disorderly when unwell.
[12] At the beginning of 2018 he moved out of his parents’ home, secured a flat and found work in a car dealership. At the time it appears he was functioning well, although on his account he had not taken any of his prescribed medication for a year. Initially it seems things went well. However, his relationship with his employer deteriorated and, whether this was a consequence of his declining mental health or not, he left his job and drove to Queenstown. He arrived there in mid-2018 and lived out of his car. He did not tell his family where he was.
[13] It was from at least this time that his paranoid delusions returned. He began to believe he was the subject of a social experiment similar to the movie, The Truman Show. He believed that his every move was being monitored and filmed. He thought all of those he came into contact were wearing microphones and were part of the experiment and knew him. He believed that the venture was being financed by Bill Gates. It was during this period that the index offending took place.
4 Mr Walker advised the Court that Mr Fan has since made full reparation.
[14] Four months later Mr Fan committed further offences.5 He was charged. The day after the last incident on 23 December 2018 he was admitted to the Southland Inpatient Mental Health Unit. He continued to exhibit similar paranoid delusions.
[15] Following his discharge, he returned to Auckland to live with his family. On intimations of pleas of guilty, the charges were transferred to the Auckland District Court and on 4 July 2019 Judge R J Collins found him not guilty of all charges by reason of insanity.
[16] A psychiatric report has been obtained for Mr Fan in respect of the present charges. In summary, it concludes that given his chronic psychiatric illness and the particular features of his offending, he was probably both unfit to plead and was insane at the time of the offending.
Application to extend time for filing appeal
[17] It is against that background that Mr Walker, for Mr Fan, applies for an extension of time for the filing his notice of appeal.6 That application was not opposed. Given the circumstances I am satisfied it is appropriate to grant leave.
Legal principles on appeal
[18] This is a first appeal against conviction.7 It is brought on the basis that a miscarriage of justice has occurred.
[19] I may only allow Mr Fan’s appeal if I am satisfied that a miscarriage of justice occurred or if, for any other reason, a miscarriage of justice has occurred.8
[20] A miscarriage of justice means any error, irregularity or occurrence in relation to or affecting the trial that has created a real risk that the outcome of the trial was
5 On 1 December 2018, disorderly behaviour; 1 December 2018, possession of an offensive weapon; 23 December 2018, disorderly behaviour and theft under $500.
6 Criminal Procedure Act 2011, s 231(3).
7 Section 229.
8 Section 232(2)(c).
affected or has resulted in an unfair trial or a trial that was a nullity.9 A trial includes a proceeding in which the appellant pleaded guilty.10
[21] The meaning of “real risk” was discussed by the Supreme Court in Sungsuwan v R.11 This formulation was approved in the context of the Criminal Procedure Act 2011 (“the CPA”) in the Court of Appeal decision in Wiley v R.12 The real risk the outcome of the trial was affected arises when:
“… there is a reasonable possibility that a not guilty (or more favourable) verdict might have been delivered if nothing had gone wrong.”
[22] The Court of Appeal observed in R v Le Page that it is only in exceptional circumstances that an appeal against conviction will be entertained after a guilty plea.13 The appellant must show that a miscarriage of justice will occur if the conviction is not overturned. There the Court stated that a miscarriage of justice following a guilty plea will be indicated in at least three broad situations, of which one is where the appellant did not appreciate the nature of, or did not intend to plead guilty to, a particular charge.14
Application to admit fresh evidence – Dr Cavney’s report
[23] Mr Fan seeks leave to adduce fresh evidence in the form of the psychiatric report. This comprehensive 12-page report, dated 21 June 2020, was prepared by Dr J Cavney, a consultant forensic psychiatrist employed at the Mason Clinic, Waitemata District Health Board.15
9 Criminal Procedure Act 2011, s 232(4).
10 Section 232(5).
11 Sungsuwan v R [2005] NSC 57, [2006] 1 NZLR 730 at [110], per Tipping J.
12 Wiley v R [2006] NZCA 28.
13 R v Le Page [2005] 2 NZLR 845 at [16].
14 At [17].
15 Although Dr Cavney is employed by the Mason Clinic, he prepared the report in his private capacity. He is not Mr Fan’s responsible clinician.
[24] The principles to be applied in determining fresh evidence applications are well settled. For such evidence to be admitted on appeal it must be:16
(a)fresh (that is the evidence could not, with reasonable diligence, have been produced at trial);
(b)credible; and
(c)cogent (that is the evidence is such that, in combination with the other evidence at trial, it might reasonably have led to a finding of not guilty if called at the trial).
[25] The general principle is that if the evidence is both credible and fresh it should generally be admitted unless the Court is satisfied that if admitted it would have no effect on the safety of the conviction. If the Court considers there is a risk of a miscarriage of justice if the evidence is excluded, it should be admitted notwithstanding that it may not be fresh.
[26] Ms McKenzie, for the Police, submits that the evidence cannot be said to be fresh. I assume this is because Mr Fan’s psychiatric presentation would, with reasonable diligence, have been discovered and psychiatric evidence obtained on both the question of fitness to plead as well as insanity. However, in the course of his appearances in the Queenstown District Court, Mr Fan was assisted by duty solicitors. I have seen reports from them which would suggest there was nothing which alerted them to his chronic mental illness or how that might have influenced his offending. In those circumstances it is entirely conceivable that his illness and its effect on his facility to offend, was missed. Even with reasonable diligence it may well have been overlooked. For those reasons I am inclined to the view that the psychiatric evidence is fresh.
[27] Certainly, and unsurprisingly, no challenge is made to its credibility and cogency.
16 Lundy v R [2013] UKPC 28; [2014] 2 NZLR 273.
[28] In any event, even if I am wrong on the question of the freshness of the evidence, as the authorities emphasise, it may still be admitted if to do otherwise would result in a miscarriage of justice. For the reasons which follow I am satisfied that a miscarriage of justice would occur if this evidence was not admitted on the appeal.
Grounds of appeal
[29] Mr Walker submitted that there are three grounds supporting his claim that justice has miscarried in this case:
(a)Mr Fan was unfit to plead at the time he entered his pleas;
(b)he was insane at the time he committed the offences and, accordingly, should have been acquitted on the grounds of insanity; and
(c)if, after proper investigation Mr Fan had been found legally sane and fit to plead, there are still significant factors to support a discharge without conviction under s 106 of the Sentencing Act 2002.
Discussion
[30] I now turn to each of the grounds which Mr Walker submits demonstrate that a miscarriage of justice will occur if the conviction is not overturned.
(a)Was Mr Fan legally insane at the time of the offending?
[31] In order to be acquitted on the grounds of insanity Mr Fan carries the burden on the balance of probabilities to satisfy the Court that at the time of the offending he had a disease of the mind to such an extent that he did not understand the act was morally wrong having regard to the commonly accepted standards of right and wrong.17
[32] It is uncontroversial that an evolving diagnosis of schizophrenia or “schizo- affective disorder of the bipolar sub-type” meets the statutory definition of disease of
17 Crimes Act 1961, s 23(2)(b).
the mind. It also appears that there is no contest between the parties that at the time of the index offending Mr Fan was suffering from this form of mental illness.
[33] As noted, since at least 2012, Mr Fan has suffered from schizophrenia and has been the subject of numerous inpatient admissions to psychiatric units. Notably, his last admission was shortly after his arrest on the second lot of offences, committed in December 2018.
[34] Furthermore, there is no serious contradiction to his consistent account that at the time of this offending he believed that he was the main character and something of a celebrity in a social experiment similar to The Truman Show.
[35] While I accept Ms McKenzie’s observation that his prosaic explanation that he had no money to pay for the petrol appears somewhat inconsistent with The Truman Show narrative, this needs to be balanced against his apparently bizarre suggestion, when challenged about not paying for the massage, to “Charge it to my daughter”.18
[36] It is also plain that at the time of his arrest the Police were concerned about some of Mr Fan’s explanations which led to a request that he be professionally examined. In particular, his request to the Police that he be shown the “list of folk to kill” supports the inference that at the time of the offending he was labouring under a disease of the mind. The Police were obviously alarmed enough to request that Mr Fan be professionally examined. A very brief clinical assessment report from 3 August 2018 states that he did not display any symptoms of a mental disorder, but that is at odds with the fact Mr Fan also spoke to the assessor about “a list of folk to kill”.
[37] This is also consistent with Dr Cavney’s conclusions. In respect of the index offending, he reported to Dr Cavney that he did not believe he had committed any offence. The service station attendants should have known who he was and were deliberately being obstructive in insisting that he pay and were provoking him to “try and cause a scene to get more advertising for their businesses” through the livestreaming of movie.
18 Dr Cavney records Mr Fan has no children.
[38] For these reasons I am easily satisfied that at the relevant time Mr Fan was labouring under a disease of the mind.
[39] The next question is whether, at the relevant time, he did not believe his acts were morally wrong.
[40] To a considerable extent the evidence on this point has already been discussed. Given Mr Fan’s distorted reality and psychotic delusions at the time, Dr Cavney concluded that although Mr Fan was cognisant of what he was doing, that is obtaining petrol and massage services without paying for them, he believed he was justified in this conduct. This was rationalised in his mind through his psychotic delusions that he was the centrepiece of a social experiment and that his expenses were being reimbursed. Dr Cavney’s opinion is that these considerations would have strongly support a defence of not guilty by reason of insanity. I agree.
[41] I also regard it as highly relevant to this issue that Judge Collins acquitted Mr Fan on the grounds of insanity for offending committed just a few months later. I have not seen a copy of the Judge’s decision, but I have viewed a psychiatric report from Dr Cavney that was obtained on 4 June 2019. That set of offending included going to a restaurant and ordering the most expensive dishes on the belief that they would be paid for by Bill Gates. Dr Cavney concluded that he did not know he was stealing. He stated to Dr Cavney that this was similar to past experiences where he believed he was on The Truman Show.
[42] Finally, I record the responsible approach adopted by the Crown. Ms McKenzie submitted that if the point was reached where the information satisfied the Court there was a realistic prospect of Mr Fan successfully defending the charges on the basis of insanity his guilty pleas and subsequent convictions represent a miscarriage of justice and the appeal should be allowed.
[43] Thus there is a sufficient principled, evidence-based foundation to support the conclusion Mr Fan was insane at the time of the index offending. I am satisfied a miscarriage of justice occurred and the appeal should be allowed on this ground alone.
[44] However, for completeness I turn to consider the other grounds of appeal relied on by Mr Walker.
(b)Was Mr Fan fit to plead?
[45] The statutory test is set out in the Criminal Procedure (Mentally Impaired Persons) Act 2003 (“the CP (MIP) Act”). Unfit to stand trial is defined at s 4 as:
“(a) means a defendant who is unable, due to mental impairment, to conduct a defence or to instruct counsel to do so; and
(b)includes a defendant who, due to mental impairment, is unable—
(i)to plead;
(ii) to adequately understand the nature or purpose or possible consequences of the proceedings;
(iii) to communicate adequately with counsel for the purposes of conducting a defence.”
[46] Section 7 of the CP (MIP) Act explains when a finding of unfitness may be made, that is at any stage from the commencement of the proceedings until all the evidence is concluded. It follows that the procedures under the CP (MIP) Act cannot be invoked after a plea of guilty.19 However, that is not an impediment to assessing whether there has been a miscarriage of justice.
[47] Plainly Mr Fan was suffering from a mental impairment. Much of the factual foundation for that conclusion has already been discussed.
[48] It was not immediately apparent to the duty solicitors who dealt with Mr Fan but the reasons for that have been noted.
[49] It seems, however, that there were warning signs. One example was picked up by the sentencing Judge who, in expressing his puzzlement, observed:20
“What does not sit easily with me is the fact that you knew that you were facing sentence on these charges and a short time before them you go and commit what can only be an offence of almost non-necessary obtaining by
19 Cumming v R [2008] NZSC 39; [2010] 2 NZLR 433 at [13].
20 At [5].
deception. It is not as if you needed this service or anything else that was provided; you just went and did it for your own gratification. …”
[50]There are also Mr Fan’s bizarre post-arrest comments to the Police.
[51] Of course, these features do not necessarily mean that Mr Fan was unfit to plead but they do give cause for concern in that regard.
[52] I agree with Dr Cavney that in addition to this information, had the Court been alerted to Mr Fan’s mental history it would typically have resulted in a formal psychiatric assessment. Dr Cavney also made the point that Mr Fan did not make his history known to counsel. This, he opines, indicates Mr Fan’s lack of insight into the fact he was unwell. This has been a recurrent feature of his acute relapses. And so, I find myself in agreement with Dr Cavney when he concluded that when considered in combination, these points suggest that Mr Fan was, at the least, unable to communicate adequately with counsel for the purpose of conducting a defence or to make his version of events known to the Court and to counsel.21
[53]That meets the definition of unfit to stand trial.
[54] For that reason, I am also satisfied that if this appeal was not allowed a miscarriage of justice would occur.
(c)Would Mr Fan’s mental issues have led to a discharge?
[55] Mr Walker submitted that even if Mr Fan had been found fit to stand trial and not insane at the time he offended, his mental health issues were clearly mitigated both in terms of the gravity of the offending and the consequences of conviction. Mr Walker noted the requirement for sentencing Courts to give significant credit on account of health issues.22 He thus submitted that the consequence of the convictions on Mr Fan’s employment and further aggravation of his mental health would be such that the Court would have been likely to grant a discharge without conviction.
21 P v Police [2007] 2 NZLR 528 at [43].
22 Sentencing Act 2002, ss 9(2)(e) and 9(4)(a); Carruthers v Police [2018] NZHC 187 at [20] citing
Shailer v R [2017] NZCA 38 at [45]-[48]; Krishna v Police [2014] NZHC 3337 at [39].
[56] While the offending itself was relatively minor and explicable (absent a finding of insanity or unfitness) I cannot accept that it was probable Mr Fan would have been discharged under s 106. Nor do I accept that the consequences of a conviction for Mr Fan would be out of all proportion to the gravity of the offending. The grounds advanced by Mr Walker are insufficient to meet the required threshold in my view. First, Mr Fan is not employed and there is no evidence before me to indicate that he intends to return to the workforce. Secondly, there is no evidence to support the proposition that these convictions would exacerbate his mental health.
[57]For these reasons I am not satisfied that this ground is made out.
[58] However, by reason of my earlier findings, I am nonetheless satisfied that the appeal should be allowed.
Result
[59]Leave to extend the time for filing the notice of appeal is granted.
[60] Dr Cavney’s psychiatric report of 21 June 2020 is admitted as evidence on the appeal.
[61]The appeal is allowed.
[62]The convictions are quashed and no order for a re-trial is made.
Moore J
Solicitors:
Mr Walker, Auckland Crown Solicitor, Invercargill
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