Gill v The Queen
[2020] NZCA 214
•4 June 2020 at 4 pm
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA426/2019 [2020] NZCA 214 |
| BETWEEN | JAMIE MICHAEL GILL |
| AND | THE QUEEN |
| Court: | Brown, Gilbert and Dobson JJ |
Counsel: | T W Luders for Appellant |
Judgment: | 4 June 2020 at 4 pm |
JUDGMENT OF THE COURT
AThe appeal against conviction is dismissed.
BThe appeal against sentence is dismissed.
____________________________________________________________________
REASONS OF THE COURT
(Given by Gilbert J)
Introduction
Following a trial by jury in the District Court at Wellington, Mr Gill was found guilty of escaping police custody and resisting arrest. The circumstances were that at about 11.30 am on 24 August 2018, police were informed that Mr Gill had arranged to pick up a prescription at a pharmacy in Upper Hutt. The police had an outstanding warrant for Mr Gill’s arrest for another matter. Four officers went to the pharmacy with the arrest warrant. One of the officers approached Mr Gill and told him he was under arrest. Mr Gill turned and ran. The officers caught up with him in a nearby underground car park and arrested him with the assistance of a police dog.
Mr Gill was sentenced by Judge Barry to four months’ imprisonment.[1] The Judge imposed three special release conditions to apply for six months from the sentence expiry date:[2]
(a)to attend an assessment for alcohol and drug issues, if and as directed by a probation officer;
(b)to attend and complete any counselling, treatment or programme directed by and to the satisfaction of a probation officer; and
(c)to complete any other treatment programme or counselling as directed by a probation officer.
[1]R v Gill [2019] NZDC 15058.
[2]At [6].
Mr Gill appeals against conviction and sentence.
The sole ground of the conviction appeal is that expert evidence Mr Gill wished to adduce at trial was wrongly excluded. Mr Gill, who was nearly 28 years of age at the time of the offending, suffers from Attention Deficit Hyperactivity Disorder (ADHD). When the incident occurred, he had been without medication for this condition for some time. He was at the pharmacy to pick up a new prescription.
Mr Gill wished to call evidence from Dr Rosemary Edwards, a forensic psychiatrist who has particular expertise in the assessment and treatment of adults with ADHD. The purpose of the evidence was to inform the jury about ADHD in general terms and provide them with a brief overview of Mr Gill’s history of ADHD based on his medical records. Mr Gill says this evidence would have been substantially helpful to the jury, in terms of s 25 of the Evidence Act 2006, in assessing his evidence that he ran from police “as an impulsive response rather than due to an appreciation that he was being arrested”. However, this evidence was ruled inadmissible by Judge Butler in a pre-trial ruling given on 16 July 2019.[3]
[3]R v Gill DC Wellington CRI-2018-096-2790, 16 July 2019 (Pre-trial ruling).
Mr Gill does not challenge his sentence of imprisonment, which he has long since served. His sole complaint concerns the special release conditions. He argues these were not justified.
Conviction appeal
In her brief of evidence, Dr Edwards describes in general terms how persons suffering from ADHD can be affected. She explains that ADHD is an executive function disorder resulting in impulsiveness, impaired attention and drug use susceptibility. However, Dr Edwards notes that ADHD varies between individuals in intensity and specific symptoms. She observes that the condition can be controlled in various ways but is more difficult to manage when a person is fatigued or under stress. Sufferers can develop additional mental health disorders, commonly anxiety and depression, but also substance abuse. Dr Edwards says it is common for those with ADHD to have difficulty listening to, absorbing and understanding all that is said to them. They will often pick up on a few words but not everything that is said.
Mr Gill was not a patient of Dr Edwards and she has never met or examined him. However, she reviewed his medical records and gave a brief summary of these. The records show that Mr Gill was first diagnosed with ADHD when he was approximately 12 years old. It appears that Mr Gill responded well to prescribed medication but there was a history of him taking his medication intermittently. Mr Gill was also said to have had issues with substance abuse and had been referred to residential rehabilitation services in the past. The most current information on his medical file was contained in a letter from Dr Tracey Heads, a consultant forensic psychiatrist who was then treating him, and sent to an unknown doctor in December 2016. This was nearly two years before the events the subject of this appeal. Dr Heads concludes her letter as follows:
Over the past year [Mr Gill] has presented as very stable and I do not consider he requires a referral to community Mental Health Services … I do however recommend he continue on stimulant medication (Ritalin SR 20mg tds …). …
Judge Butler did not consider this evidence would be substantially helpful to the jury in determining Mr Gill’s guilt. However, the Judge considered the information could be relevant to sentence if Mr Gill was found guilty.[4]
[4]At [7].
Six witnesses gave evidence at the trial — the four police officers, Mr Gill and Mr Gill’s partner. All but Mr Gill said they clearly heard Constable Taylor inform Mr Gill that he was under arrest. There was no dispute that Mr Gill immediately turned away from Constable Taylor and ran.
The defence case on the charge of escaping police custody was that Mr Gill did not hear Constable Taylor advise him he was under arrest before he turned and ran. This was said to be because of a combination of circumstances, including mild, mixed hearing loss in one ear and his inability to pay attention due to his ADHD. Mr Luders, counsel for Mr Gill, summarised the defence in his closing address in these terms:
The defence say you can be sure [Mr Gill] did not hear Constable Taylor for several reasons. You heard that [Mr Gill] has mild, mixed hearing loss. Constable Taylor was running at him from the carpark at the other end of the street. The constable yelled out at him at the fence line, a considerable distance from the pharmacy where [Mr Gill] was standing by his car. It was the middle of the day in a retail area. Cars on the road. It is accepted there was not much in terms of foot traffic at the time. [Mr Gill] was not facing the constable when the constable yelled out at him. He was by the passenger side of the vehicle. His right ear, the ear with mild, mixed hearing loss, facing towards the constable. He was not focused on him. He had no reason to be listening intently to his surroundings. His hearing is impaired and his ability to pay attention and focus to sudden occurrences in his surroundings is diminished by his attention deficit disorder.
As to why Mr Gill ran from the police, counsel explained that this was because of Mr Gill’s fear of the police from an incident that occurred 14 years earlier. His ADHD was said to be a contributing factor:
He ran because he was fearful of police. He told you of previous experience with police, and one in particular, at the impressionable age of 14 he was, as he said, pepper sprayed and got a hiding. These experiences have left a profound impact on Mr Gill and on this occasion he ran out of fear. He was afraid he would be hurt and given what unfolded, you could hardly blame him. Do not forget that he suffers from ADHD. It is a diagnosis characterised by a pattern of inattention and hyperactivity.
I suggest to you, him running is another example of an impulse reaction to sudden circumstances that my client did not fully understand. His evidence has been entirely consistent with the explanation he gave to police when he was spoken to after being read his Bill of Rights where he said, “I’m sorry I ran bro, I was scared. There were all of you. I shouldn’t have done it but I did. I haven’t had my medication.”
Counsel did not suggest Mr Gill’s ADHD condition was relevant to the second charge of resisting arrest. The defence case was that Mr Gill did not resist, rather any difficulty experienced by the police resulted from their lack of coordination. Counsel closed on the following basis:
I suggest to you that the officers were not consistent about how [Mr Gill] reacted because they were not coordinated when they apprehended him. What they perceived as resistance is instead consistent with the officers being uncoordinated. They were at different ends of the same stick, pulling one way while the other pulls from the other.
The defence case was that any subsequent resistance was simply misinterpreted — Mr Gill was not resisting but rather he was writhing in pain, having been bitten by the police dog.
We do not consider Dr Edwards’ evidence would have been substantially helpful in understanding other evidence in the proceeding or in ascertaining any fact of consequence to the determination of the proceeding.[5] We do not see how it could assist the jury to understand Mr Gill’s evidence, all of which was perfectly clear and coherent. There was no need to correct any erroneous beliefs the jury might hold in assessing his evidence which may have led to illegitimate reasoning. The trial issue to which the evidence is said to be relevant was whether Mr Gill heard and understood Constable Taylor’s statement — “[y]ou are under arrest”. Dr Edwards does not suggest that Mr Gill, or anyone else with ADHD, might not be able to understand this short, simple message, assuming they heard it clearly. The high point of Dr Edwards’ evidence on this is her statement that:
[s]ome people with ADHD have difficulty concentrating on a conversation impacting negatively on their social relationships, are unable to sit through a movie, or complete university assignments despite having the natural intelligence to be able to.
It is also common for someone with ADHD to have difficulty listening to, absorbing and understanding, all of what is being said to them and they will often pick up on a few words but not the whole of what is being said or asked. This often leads to people misunderstanding what is being said to or asked of them.
[5]Evidence Act 2006, s 25(1).
In any event, having never met Mr Gill, Dr Edwards would have been unable to assist the jury on his condition at the time of the offending. The best she could do was to quote from medical records prepared by others, the most recent of which was written nearly two years before the events occurred. Given Dr Edwards’ evidence that ADHD varies in intensity and symptoms between individuals, this significantly diminishes any value the evidence might otherwise have had.
In summary, we do not consider Dr Edwards’ evidence would have been substantially helpful to the jury. Accordingly, we agree with Judge Butler that it was not admissible. This being the sole ground of appeal, the appeal against conviction must accordingly be dismissed.
Sentence appeal
After the jury delivered their verdicts, Mr Gill was remanded for sentence the following week. A pre-sentence report addressing appropriate release conditions was ordered. No such report was available at sentencing. Accordingly, Judge Barry requested a probation officer to attend court to make a recommendation about appropriate release conditions. The special conditions quoted at [2] above were those recommended. They were designed to address Mr Gill’s needs, having regard to his ADHD, history of substance abuse and prior offending. Before making the order, the Judge gave Mr Luders an opportunity to comment. He responded:
… I can see Mr Gill shaking his head a bit over that, but I would accept myself that would be appropriate release conditions.
In terms of s 93(3) of the Sentencing Act 2002, a special release condition must not be imposed unless it is designed to reduce the risk of re‑offending, facilitate or promote rehabilitation and reintegration, or provide for the reasonable concerns of victims. Mr Gill submits there was insufficient information before the Court to justify the conclusion that special conditions, particularly the condition to attend a drug and alcohol assessment, programme and treatment, would reduce his risk of re-offending or promote his rehabilitation.
We disagree. Judge Barry had available Mr Gill’s lengthy criminal history, which includes family violence and low-level drug offending. Dr Edwards’ report, which Judge Butler considered could be relevant for sentencing purposes, was also on the file available to Judge Barry at sentencing. As we have noted, this referred to Mr Gill’s issues with substance abuse. It seems to us it was entirely appropriate for Judge Barry to include a post-release condition requiring Mr Gill to attend an assessment for alcohol and drug issues if so directed by a probation officer. The other conditions were also appropriately directed to address Mr Gill’s risk of re-offending and his rehabilitation.
It follows that Mr Gill’s appeal against sentence must be dismissed.
Result
The appeal against conviction is dismissed.
The appeal against sentence is dismissed.
Solicitors:
Public Defence Service, Wellington for Appellant
Crown Law Office, Wellington for Respondent
0
0
0