Fan v Police - [2020] NZHC 2696

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…

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 Fan v Police

Details

AGLC: Fan v Police [2020] NZHC 2696
Case: [2020] NZHC 2696
Decision Date: 14 October 2020

CaseChat Overview and Summary

Charles Fan appealed against his conviction for theft and causing loss by deception, arguing that he should have been found unfit to plead and/or acquitted on the grounds of insanity due to his mental health condition. The High Court of New Zealand heard the appeal and considered whether a miscarriage of justice had occurred. The court found that Mr Fan was suffering from a mental disorder at the time of the offending and did not understand that his actions were morally wrong, satisfying the criteria for a defence of insanity. The court also found that Mr Fan was unfit to plead due to his inability to communicate adequately with counsel. Therefore, the appeal was allowed, the convictions were quashed, and no re-trial was ordered. The court granted leave for the extension of time for filing the notice of appeal and admitted the psychiatric report as evidence on the appeal.

Orders