Hanzlik v The Queen
[2015] NZHC 2068
•28 August 2015
IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
CRI-2014-463-76 [2015] NZHC 2068
BETWEEN ZDENEK HANZLIK
Appellant
AND
THE QUEEN Respondent
Hearing: 29 April 2015 Appearances:
P Eastwood for the Appellant
A D Hill for the RespondentJudgment:
28 August 2015
JUDGMENT OF WOODHOUSE J
This judgment was delivered by me on 28 August 2015 at 3 pm, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date……………
Solicitors:
Mr P Eastwood, Barrister, Auckland
Mr A D Hill, Office of the Crown Solicitor, Rotorua
HANZLIK v THE QUEEN [2015] NZHC 2068 [28 August 2015]
[1] Mr Hanzlik, has appealed against his conviction on a charge that he failed, without reasonable excuse, to comply with a condition of a sentence of supervision contrary to s 70 of the Sentencing Act 2002 (the Act).
[2] Three broad issues arise:
(a) As a matter of statutory interpretation, did the offence as charged apply to the facts that were established? The charge as amended at the commencement of the hearing, was that Mr Hanzlik —
Failed without reasonable excuse, to take part in a rehabilitative and reintegrative needs assessment as directed by a Probation Officer, in accordance with section 49(1)(i) of the Sentencing Act 2002.
The factual foundation for the charge was that Mr Hanzlik did not agree to undergo a psychological assessment following a direction from a probation officer to do so. The question of interpretation is whether the standard condition specified in s 49(1)(i) entitled the probation officer to give such a direction.
(b)Did the Crown negate beyond reasonable doubt defences of reasonable excuse?
(c) Was there a breach of Mr Hanzlik’s right to a fair hearing, or his right to present a defence, as provided in s 25 of the New Zealand Bill of Rights Act 1990?
Background
The alleged offence
[3] On 17 December 2013 Mr Hanzlik was sentenced to supervision for a period of six months following conviction on two charges of breaching a protection order. In addition to the standard conditions specified in s 49 of the Act, and which
automatically apply pursuant to s 48(a), a special condition was imposed in the following terms:
Attend and complete such counselling/programme to assist in avoiding re- offending as directed by a Probation Officer.
The formal order was contained in a standard form document signed by a Deputy Registrar. Part of the standard form referred to “special conditions under sections 50 and 52” and the special condition just quoted was then inserted. The condition imposed is one able to be imposed under s 50. Section 52 has no relevance.
[4] The formal order also fully recorded the standard conditions, set out in s 49 and it included the following:
Consequences of non-compliance
Failure to comply with the terms of this sentence, without reasonable excuse, may result in your being charged under section 70 of the Sentencing Act
2002 with an offence punishable by a maximum of three months imprisonment or fine not exceeding $1,000.
[5] On 23 January 2014 Mr Hanzlik reported to a probation officer, Mr Allen at Mr Allen’s office. I infer that Mr Hanzlik reported in accordance with a direction earlier given. This is consistent with his response to part of the original order to report to a probation officer not later than 72 hours after imposition of the sentence. He reported to a probation officer within 24 hours. On 23 January Mr Allen directed Mr Hanzlik to report to another office in Rotorua on 30 January 2014 to see a psychologist for a psychological assessment. Mr Hanzlik declined to sign a written instruction to that effect. Mr Allen said in evidence that he explained to Mr Hanzlik his reasons for wanting Mr Hanzlik to undertake the assessment and told Mr Hanzlik “that there will be a sanction or enforcement action taken if he failed to undertake that assessment.”
[6] On 28 January 2014 Mr Hanzlik reported (presumably as instructed) to the Rotorua Service Centre of the Department of Corrections and spoke to a practice leader, Mr Fitzgerald. Mr Fitzgerald spoke to Mr Hanzlik about the scheduled appointment with the psychologist on 30 January. In his evidence-in-chief Mr
Fitzgerald said that he explained to Mr Hanzlik why, in Mr Fitzgerald’s opinion, it
might assist Mr Hanzlik to see the psychologist. Mr Fitzgerald then said:
I also explained to him the consequences of not attending that, that he, if he failed to attend that, he risked facing breach action.
[7] Mr Hanzlik endeavoured to defend himself. In his cross-examination of Mr
Fitzgerald there was the following question and answer:
Q. … On our first meeting you being standing for Mr Allen. At that time you said that Mr Allen said that there is a psychology assessment because it was first person from whom I heard it was you, and I look and you told me but you can refuse, you have got the right to refuse.
A. I don’t recollect that but I would not say it’s untrue.
[8] Mr Hanzlik gave evidence. He was asked about the written instruction given to him by Mr Allen to attend for the psychological assessment on 30 January. Mr Hanzlik’s answer, and subsequent questions and answers, were as follows:
A. I was aware at that time from Mr Fitzgerald that I have got right to reject it.
Q. And that’s what I was going to ask you next, is that John Fitzgerald told you also two days before that you had to come on the 30th to see the psychologist?
A. Yes. Q. Yes?
A. But no, no I just want to tell you too. I told him but you told me and he said, I should know and just somewhere you know, what is happening what you say on the liberty of those things and I said, I understand that I will be prosecuted or I will be called.
Q. That’s right so you know that if you didn’t go and engage with the
psychologist, you would be breached for your sentence?
A. Actually no I know –
Q. And you were told that?
A. That is not exactly breach, breach was Allen’s. Allen’s was breach and you know. About that things I know that I will be called to that things and I said, “No on the condition I am not accepting things”.
Q. Mr Fitzgerald told you that if you didn’t see the psychologist –
A. Yes.
Q. - you’d get into trouble effectively –
A. Yers, yes – Q. - didn’t he? A. Yes.
Q. Yes. And the reason you didn’t want to see the psychologist is because you don’t think you’ve done anything wrong, you don’t really think you breached the protection order that you were sentenced on in the first place?
A. No, I did not want to commit myself because if I will go and say I will engage with you, it is commit and because during the time as I would say trust (inaudible …) between, I always come and I always spoken or I tried to say. When Allen started to somewhere nudge me that I should implicate or re-examine myself or re-accuse myself or those things, it was for me somewhere, the whole time was there missing what we will do about things what mention Justice Cooper. I try my own, I try Aroha Cooper –
[9] Mr Hanzlik’s references to “Justice Cooper” and to “Aroha Cooper” were references to Judge P Cooper. Judge Cooper imposed the sentence of supervision. It is reasonably clear from the transcript for the present proceeding that there had been a discussion between Judge Cooper and Mr Hanzlik and that Mr Hanzlik attached some importance to what he understood he had been told.
The hearing
[10] On 26 March 2014 Mr Hanzlik was brought from Waikeria Prison to the
District Court at Rotorua for the hearing. He had been remanded in custody on 6
March 2014. It appears from the Judge’s observations on sentencing that he had been remanded in custody because he declined to sign a bail bond. His first appearance was 6 March 2014 and he had, therefore, been in custody from the commencement of the prosecution against him on what is a minor charge. There is no information on the appeal file as to why it was considered necessary that Mr Hanzlik be remanded on bail, as opposed to his being released on his own recognisance.
[11] Before the hearing commenced there was a callover of cases for hearing that morning. Judge C J McGuire briefly explained the callover process to Mr Hanzlik and asked if the matter was ready to be heard. There was the following exchange.
Mr Hanzlik: Firstly I would like to say I don’t know answers. I thought it before be Justice Cooper, I don’t know answers.
The Court: Okay I am not Judge Cooper. I am Judge McGuire. Judge
McGuire.
Mr Hanzlik: McGuire, okay. I am Hanzlik, I cannot see you and papers what was issued by the Collections, I received on the 22nd. Yesterday when I was taken from the Wairakei Prison, those papers did not arrive yet. That is why I am happy to defend myself from the floor as it is.
The Court: Okay, thank you for that indication.
Ms Gordon (for the Crown): I can arrange Sir to give him copies of what was disclosed to him so that he has that.
Mr Hanzlik: But I need glasses.
Ms Gordon: Oh, where are they?
Mr Hanzlik: Chemist. I a have no shoes, I have no sock, I have no glasses. They told me that I would not need it.
[12] When the formal hearing commenced later in the morning, Mr Hanzlik said that the documents that he had received from Ms Gordon were different from the ones that he had received on 22 March in the prison. There was the following exchange:
Mr Hanzlik: The document what I received, I complete different documents what I receive from the 22nd, on the Friday in the prison. Those documents here are actually top covers, I have no received complete documents from the Collections, how I was planning interviews and those documents that I could present you, you will find that from the 18th of December, the documents are fabricated that make me before this Court that is why this order —
The Court: Okay I understand that Mr Hanzlik, you will have ample opportunity to do that. Now is there any difficulty about having Mr Hanzlik sit at a desk behind you — [it is not clear what the Judge was referring to in relation to an ample opportunity and it is clear that Mr Hanzlik was not given copies of the documents he was concerned about]
Ms Gordon: Not from my point of view Sir. If I can just explain [what] I copied this morning for him, is really just the formal statements and the exhibits that I haven’t really – disclosed the entire file that was disclosed to him Sir.
The Court: Okay.
Mr Hanzlik: There is a photo missing (inaudible) …
The Court: That is okay, we will address that in due course Mr Hanzlik but we need to make progress because yours is not the only case I have to hear today, there are about five others, so we need to press on and complete what we are setting out to do. So if you would just like to go and take a seat at one of the desks there.
Mr Hanzlik: I can’t speak it so I tried several times ask for the shading
but I have got no chance to do it so I am as I am.
The Court: That I understandable, now Ms Gordon.
[13] Ms Gordon then referred to a written application that had been filed, pursuant to r 2.14 of the Criminal Procedure Rules 2012, for the amendment of the charge. The relevant part of the original charge was that Mr Hanzlik —
Failed to report for a psychological assessment as directed by a Probation
Officer, in accordance with section 49(1)(i) of the Sentencing Act 2002.
[14] The written application, dated 21 March 2014, was to replace those words with the words recorded above at [2](a). There was a brief exchange between the Judge and Ms Gordon in which the Judge simply noted the amendment as sought. There was no enquiry of Mr Hanzlik in relation to the application or as to whether it had been served on him. Mr Hanzlik was noted in the application as the defendant. In a separate section of the standard form, which refers to “defendant’s lawyer address for service:” there is an entry “C/o — The Prison Manager, Waikeria Prison.”
[15] There were four prosecution witnesses. In addition to Mr Allen and Mr Fitzgerald, noted earlier, there was evidence from Ms Emma Gibb and Ms Emily Hill. Ms Gibb is the probation officer who inducted Mr Hanzlik into the supervision sentence on 18 December 2013. Ms Hill is a registered clinical psychologist employed by the Department of Corrections. She had been scheduled to undertake the psychological assessment. Ms Hill’s engagement with Mr Hanzlik was very brief. Mr Hanzlik in fact attended at the Rotorua Service Centre by 8.30 am on 30
January, as directed. Ms Hill introduced herself to Mr Hanzlik and he told her that he was not willing to engage with her. There were no further dealings between Ms Hill and Mr Hanzlik.
The reasons for conviction and sentence
[16] The Judge’s reasons for finding the charge proved were as follows:
[3] This prosecution derives from the alleged refusal by Mr Hanzlik on
30 January 2014 to be interviewed by the departmental psychologist, Ms Hill. The prosecution witnesses gave evidence of the lead up to this and what actually happened on the 30th. I accept that there was discussion between Mr Hanzlik and Mr Fitzgerald as to whether Mr Hanzlik was absolutely required to attend this meeting to be interviewed by the psychologist. In those absolute terms, I am reasonably content to accept Mr Hanzlik’s evidence that Mr Fitzgerald says that he could not be required to do so, but that he would be the subject of breach action if he did not. Ms Hill had the briefest of encounters with Mr Hanzlik but Mr Hanzlik made it clear that he was not going to be interviewed by her.
[4] Mr Hanzlik’s evidence today was effectively mitigation evidence. On the essential matters, he did not quarrel with the sequence of events as outlined by the prosecution witnesses. His point was that he had had [sic] been, if you like, unjustly described in adverse terms by Mr Allen in his reports and that therefore that rendered him highly suspicious of the integrity of the system that would have him interviewed by a psychologist. Of course that condition of supervision derives from Mr Hanzlik’s convictions on two charges of breach of protection order and as is almost inevitable in cases of this kind when a person having breached their protection order is sentenced to a term of supervision, an additional condition is that they complete such counselling or programme to assist avoiding re-offending as directed by a probation officer, and without going over ground that is as old as the hills, the proposition is that if the Probation Service understand the offender better, then they may be able to put in place mechanisms for the offender to avoid re-offending in the future. After all, supervision is a rehabilitative sentence, it is not a punitive sentence. It is not a sentence to punish people, Mr Hanzlik. It is a sentence to help people. Possibly, on account of language and cultural difficulties, Mr Hanzlik remained highly suspicious that, if you like, he was being set up or that psychological labels were being placed on him that did not fit and that were inappropriate. Mr Allen arranged the appointment with the psychologist frankly to ensure that the opposite occurred so that people did not jump to conclusions about Mr Hanzlik, that any conclusions about the way forward in rehabilitation were carefully thought out in an empirical exercise, commencing with an evaluation by a skilled psychologist. For reasons ultimately best known to Mr Hanzlik, he did not submit to that direction and frankly, by his own evidence, he does not offer a defence, rather he offers an excuse.
[17] The Judge then recorded that he found the charge proved beyond reasonable doubt and proceeded to sentencing. There was a brief exchange between the Judge and Ms Gordon relating to the fact that Mr Hanzlik had been in custody on remand for 20 days, the Judge proposed a suspended sentence and Ms Gordon said that was what she was going to suggest. The Judge, without any enquiry of Mr Hanzlik, convicted him and imposed a sentence that he come up for sentence if called upon
within six months. The Judge then explained the nature of the sentence to Mr
Hanzlik.
Statutory provisions
[18] The relevant provisions of the Act are as follows:
48 Conditions of sentence of supervision
An offender who is sentenced to supervision is subject to—
(a) the standard conditions in section 49; and
(b) any special conditions imposed by the court under section 50 or section 52 or both.
49 Standard conditions of supervision
(1) If an offender is sentenced to supervision, the following standard conditions apply:
…
(i) the offender must take part in a rehabilitative and reintegrative needs assessment if and when directed to do so by a probation officer.
50 Special conditions related to programme
A court may impose any special condition or conditions related to a programme if the court is satisfied that—
(a) there is a significant risk of further offending by the offender; and
(b) standard conditions alone would not adequately reduce that risk; and
(c) the offender requires a programme to reduce the likelihood of further offending by the offender through the rehabilitation and reintegration of the offender.
51 Programmes
For the purposes of section 50, programme means any of the following that is not residential in nature:
(a) any psychiatric or other counselling or assessment:
(b) attendance at any medical, psychological, social, therapeutic, cultural, educational, employment-related, rehabilitative, or reintegrative programme:
…
70 Offences related to breach of conditions of supervision
An offender commits an offence, and is liable on … conviction to
imprisonment for a term not exceeding 3 months or to a fine not exceeding
$1,000, who—
(a) fails, without reasonable excuse, to comply with any condition of a sentence of supervision; or
…
Issue 1: Did the offence as charged apply to the facts established?
[19] The issue is outlined in the introduction at [2](a) above. The specific question that arises is whether, leaving aside any question of reasonable excuse, Mr Hanzlik’s refusal to take part in the psychological assessment was a refusal to take part in a rehabilitative and reintegrative needs assessment in terms of the standard condition (i) prescribed in s 49(1).
[20] The essence of Mr Eastwood’s submission for Mr Hanzlik was that a psychological assessment cannot be required pursuant to any of the standard conditions in s 49 and, in particular, pursuant to standard condition (i). The submission was that it could only be required under s 50 or s 52, but that is not what was charged.
[21] The essence of Mr Hill’s submission for the respondent was that a psychological assessment can be required under standard condition (i). He submitted that there is a material difference between an “assessment” and a “programme”. The argument was that a programme can only be implemented if there is a special condition under s 50 or s 52, but if there are special conditions under s 50 or s 52 an assessment is a necessary preliminary step and this can be taken under standard condition (i).
[22] In my judgment, for the reasons that follow, standard condition (i) does not permit a probation officer to direct the offender to undergo a psychological assessment.
[23] For the factual contentions of the Crown to fit the offence charged, a psychological assessment would have to be a type of assessment encompassed in the words “rehabilitative and reintegrative needs assessment”. It is obviously an assessment as to what is required for the offender’s rehabilitation and reintegration, but the Act does not define what is meant by, or included in, a rehabilitative and reintegrative needs assessment. Section 46 of the Act provides that a sentence of supervision can be imposed only if the Court is satisfied that it would reduce the likelihood of further offending “through the rehabilitation and reintegration of the offender”. There is also no definition of “rehabilitation” and “reintegration”, but this section does indicate that a rehabilitative and reintegrative needs assessment is a basic objective of a sentence of supervision. What appears to follow from this is that a rehabilitative and reintegrative needs assessment is one to be undertaken by a probation officer given the primary role of probation officers in the management of sentences of supervision. This conclusion is reinforced by consideration of the other standard conditions set out in s 49, all of which are conditions directly managed by a probation officer.
[24] On the face of it something which is called a rehabilitative and reintegrative needs assessment is different from a psychological assessment. A rehabilitative and reintegrative needs assessment might lead to a psychological assessment, or some other type of specialised assessment, and that could occur if there is another condition of the sentence which permits such an assessment.
[25] There is another provision of the Act which permits specific types of assessment such as psychological assessments, and this makes clear that an offender cannot be directed pursuant to the standard condition (i) to undergo a psychological assessment. This is s 51, which defines “Programmes” for the purposes of s 50 in relation to special conditions. Paragraphs (a) and (b) of s 51 make clear that a psychological assessment is something distinct from a rehabilitative and reintegrative needs assessment. Paragraph (a) refers to “any psychiatric or other counselling or assessment”. The italicised words must include a psychological assessment. In relation to the present issue, involving statutory interpretation, a psychological assessment is in a category no different from a psychiatric assessment. In other words, a psychological assessment, like a psychiatric assessment, is a
particular type of “programme” as defined. Such a programme can only be required as part of a sentence of supervision if it is included in an order made under s 50. The order under s 50 in this case is very broad in its terms. It could have permitted a direction from a probation officer for Mr Hanzlik to undertake a psychological assessment. But that is not what was charged.
[26] Paragraph (b) of s 51 also refers, separately, to psychological, rehabilitative and reintegrative programmes (as well as other types of programme). This also indicates that a psychological assessment, being a type of programme, is something distinct from rehabilitative and reintegrative programmes.
[27] Mr Eastwood referred to a decision of this Court in Moore v Department of Corrections.1 This was a decision on an appeal against a condition imposed on a sentence of supervision that the offender attend such medical appointments and undergo treatment as directed by the probation officer. The sole issue on appeal was whether that special condition was appropriate. The issue was materially different from the issue in this case. However, Wylie J made the following observations:
[16] The standard conditions normally attaching to supervision orders are set out in s 49 of the Act. They relate to the requirement for the offender to report to his Probation Officer and to reside at a specified address. Section
49(1)(i) requires the offender to take part in a rehabilitative and reintegrative needs assessment if and when directed to do so. This reflects the guidance given in s 46. There is however no standard condition requiring an offender to attend medical appointments or undergo treatment when and if required.
[17] The standard conditions alone would not require the appellant to get the psychological treatment that could help him address the problems it seems he presently faces.
[28] Although those observations are directed to a different issue, they are consistent with the conclusion I have reached.
[29] The primary allegations of fact of the Crown were that the probation officer had directed Mr Hanzlik to undergo a psychological test, and Mr Hanzlik had refused. Those facts were established. But for the reasons set out above, in my
judgment those facts do not establish the offence as charged.
1 Moore v Department of Corrections HC Auckland CRI-2009-404-000113, 16 June 2009.
[30] The question that remains is whether it would be appropriate to amend the charge and return the matter to the District Court for rehearing. On issue 2 I have concluded that the charge was in any event not established because the defence of reasonable excuse was not negated by the Crown. However, if I am wrong in that conclusion, I am nevertheless satisfied that it would not be appropriate to amend the charge and send it back to the District Court. One reason is that the Crown has already been given one opportunity to amend the charge to fit the factual allegations and, given all of the background circumstances to this prosecution, and the nature of the offence, this is not an occasion for a second amendment with a further hearing. This conclusion is reinforced by conclusions on the third issue directed to the right to a fair hearing and to present a defence.
Issue 2: Was there failure to comply “without reasonable excuse”?
[31] The offence under s 70(a) is a failure to comply with a condition of the sentence “without reasonable excuse”. The onus was on Mr Hanzlik to establish an evidential foundation for a defence of reasonable excuse. If that was done, the onus shifted to the Crown to negate the defence beyond reasonable doubt.
[32] Mr Eastwood submitted that there were two distinct matters giving rise to a defence of reasonable excuse. One was that Mr Hanzlik had been told by Mr Fitzgerald that he could refuse to undertake the psychological assessment. This was established by Mr Fitzgerald’s answer to the question from Mr Hanzlik, recorded above. Because of language difficulties, Mr Hanzlik had difficulty in articulating his arguments and this is the only reasonable excuse defence clearly raised by him in the District Court. This is reasonably apparent from Judge McGuire’s reasons for his decision, also earlier recorded, in which he rejected this defence.
[33] A second reasonable excuse argument was clearly identified by Mr Eastwood on the appeal. This defence, put into my words, is that Mr Hanzlik considered he had reasonable grounds for refusing to undergo a psychological assessment directed by a probation officer because there had already been improper, unqualified and wrong pre-judgment within the Corrections Department, that Mr Hanzlik had psychological problems. This was referred to by the Judge at [4] in the passage
earlier cited. As the Judge put it, these preliminary assessments of which Mr Hanzlik complained “rendered him highly suspicious of the integrity of the system that would have him interviewed by a psychologist.” But it appears not to have been apparent to the Judge that it was being advanced as a defence of reasonable excuse. That is understandable given the way in which the relevant matters were raised by Mr Hanzlik, compounded by his real difficulties in expressing himself in English and in understanding what was being said to him.
[34] On the first defence the Judge’s analysis was confined to what is recorded at [3] of his decision. It is not clear from this whether the Judge considered that the onus was on Mr Hanzlik to establish that he had a reasonable excuse, or whether he proceeded on the basis that the Crown had to establish beyond reasonable doubt that Mr Hanzlik did not have a reasonable excuse. In my judgment it is clear that an evidential foundation for the defence was established. That is a conclusion consistent with the Judge’s conclusion, although he did not express it in those terms. I am also satisfied that the Crown did not negate the defence beyond reasonable doubt. The issue certainly was not clear cut from Mr Hanzlik’s perspective, but of course uncertainty would fall well short of what was required for the Crown to meet the onus on it.
[35] The Judge proceeded on the basis that, although Mr Hanzlik had been told by Mr Fitzgerald that he was not required to undertake the assessment, he had been told “he would be the subject of breach action if he did not”. In my opinion that conclusion did not mean the Crown had met the onus on it. The Judge said, at the end of [4] of his decision, that Mr Hanzlik did not offer a defence but an excuse. With respect to the Judge, an excuse is precisely what would provide a defence, provided it was a reasonable excuse.
[36] This was not a case where Mr Hanzlik subjectively concluded that he was entitled to refuse. On the basis of the evidence, it was established that he had been told that he had a right to refuse. It was also established that he was told by Mr Fitzgerald that he risked facing breach action. And there was Mr Hanzlik’s acknowledgement in cross-examination that he was told by Mr Fitzgerald that if he did not see the psychologist he would get into trouble. But in my judgment the
evidence, coupled with Mr Hanzlik’s language difficulties, was not enough for the Crown to negate the defence beyond reasonable doubt. Mr Hanzlik got what amounts to conflicting advice. It is reasonably possible that he was, at the least, confused. Whether the excuse was reasonable requires consideration as to whether it was objectively reasonable; it does not turn on Mr Hanzlik’s subjective belief that it may have been reasonable. Mr Hanzlik was not asserting a subjective belief as to what may or may or may not have been reasonable. He certainly had his own reasons for not wanting to undergo the psychological assessment, and I come to those next. But on an objective assessment of reasonableness, taking account of all of the circumstances, which include Mr Hanzlik’s language difficulties, there is a reasonable doubt. In my judgment this defence was not negated beyond reasonable doubt.
[37] The second argument about a reasonable excuse was also established, although the argument was clearly articulated only on the appeal. What Mr Hanzlik was struggling to make clear at the hearing in the District Court, but without success, is the content of what amounted to purported psychological assessments which preceded the direction to attend for the psychological assessment on 30 January. These were amongst the disclosure documents which Mr Hanzlik had received while on remand in prison, but which were not available to him when he got to the Court for the hearing, and copies of which were not subsequently made available to him. Having referred to this at callover, Mr Hanzlik referred to it again at the beginning of the formal hearing. This is in his first statement recorded above at [12]. At the end of that first statement Mr Hanzlik is recorded as saying: “… the documents are fabricated that make me before this Court. That is why this order — ”. That was as far as he got.
[38] Mr Hanzlik, in his questioning of some of the witnesses, endeavoured to draw this out, but without success, and without making the relevance clear to the Judge. I will refer to one example only. This occurred in Mr Hanzlik’s cross- examination of the first Crown witness, Ms Gibb. Mr Hanzlik’s first question was “I want to ask you Ms Gibb if you can take your jacket down”. This understandably concerned the Judge. There was an exchange between the Judge and Mr Hanzlik which covers three pages of the transcript. In this exchange Mr Hanzlik was unable
to explain what he was seeking to demonstrate. This only emerges from some direct questions he was finally persuaded by the Judge to ask and when those questions are related to an opinion recorded in one of the Corrections Department documents disclosed to Mr Hanzlik, but which he did not have with him. It is apparent that Mr Hanzlik knew that Ms Gibb had a tattoo which would be seen if she removed her jacket. All of this related to a probation officer’s opinion that Mr Hanzlik was narcissist. Mr Hanzlik did ask Ms Gibb whether she understood what was meant by the word “narcissism”. Ms Gordon then, quite properly, intervened and advised the Judge that Ms Gordon understood that Ms Gibb was not the person who had described Mr Hanzlik as narcissistic; that it was another probation officer. Ms Gibb said that she did not know anything about an opinion that Mr Hanzlik is narcissistic. That is where that issue ended.
[39] It is clear, including from Ms Gordon’s intervention, that there was a report from a probation officer, preceding the direction to attend for assessment on
30 January, in which the probation officer recorded his opinion that Mr Hanzlik is “narcissistic”. There were other preliminary reports with other opinions, not only about what may be called Mr Hanzlik’s psychological profile, but also about his mental stability.
[40] The nature of these opinions is recorded in reports from two psychologists about Mr Hanzlik which were provided after the event. These reports, from qualified people, also make clear that the opinions from probation officers, and others, were not only wrong, but should not have been expressed. In other words, Mr Hanzlik’s concern at the time about the integrity of the system requiring him to undergo a psychological assessment was, on the basis of these opinions, well founded.
[41] The basis for these conclusions is most simply indicated by quoting from the two reports. The first was from Mr Hans Laven, a registered psychologist consulted by Mr Hanzlik of his own volition. The report is dated 4 July 2014. Mr Laven’s conclusion includes the following:
There was no evidence in my assessment of personality disorder or
psychopathology. I did not find any evidence of “narcissistic personality
disorder” as suggested by a probation officer who may not have been qualified to speculate in that way. I did not find any evidence of significant risk that Mr Hanzlik would attempt to harm others in any way …
Mr Hanzlik informed me that an “assessment” had been prepared by a police psychologist who had not met him, this assessment had claimed he was at significant risk of losing control and becoming dangerous and violent, and these claims subsequently had been allowed to influence various official decisions. My assessment, based on extensive contact, found absolutely no evidence to support such claims.
[42] The second report from a psychologist is a report from Felicity Leach to the Family Court at Rotorua. It is dated 24 December 2014. Given the purpose of the report I will not go into any detail other than matters relating directly to Mr Hanzlik on the issues of concern on this appeal. This includes some observations of Ms Leach relating to Mr Hanzlik’s comprehension of questions and, more broadly, his understanding of English.
[87] My interviews with Mr Hanzlik indicate that he frequently only partially comprehended questions. When communicating he appeared at times to be translating directly from his mother tongue. Meaning is lost or distorted when one attempts direct translation from one language to another.
[88] Mr Hanzlik’s convoluted and lengthy explanations and writings are not gibberish or an indication of a thought disorder. They are indicative of his difficulty with the English language and his tendency to be stubborn and oppositional when placed in a situation in which he feels confused or disempowered.
…
[94] My perusal of the notes taken by the probation officers who saw Mr Hanzlik was of interest. On 30 December 2013 it appeared as if Mr Hanzlik thought he had found a willing audience and the probation officer let him to talk [sic] … Referring to what Mr Hanzlik told him about his experiences in Europe, the probation officer reported, “Sid [Mr Hanzlik] has paranoia / delusions …
[95] … The probation officer reported that although it was difficult to keep Mr Hanzlik on track he was “getting lots of information” about Mr Hanzlik’s belief system and mental health issues.
[96] I consider that probation officers are not qualified to comment on or make psychological and psychiatric diagnoses. It is of interest that after many hours of reading documents and interviewing the parties, I consider that Mr Hanzlik’s concern … to be rational.
…
[98] There is no provision for me to provide further discussion about the probation notes in respect of Mr Hanzlik between December 2013 and
February 2014. However, I consider that they are inappropriate and presumptuous.
…
[101] Psychologist Emily Hill of the Department of Corrections wrote a memo on 29 January 2014. She reported that there were concerns about Mr Hanzlik’s presentation and that there was evidence on file to indicate that his personality style was narcissistic. She reported that there was evidence of hostility and negative attitudes to those in authority and specifically females. Ms Hill contended that Mr Hanzlik appeared to lack insight into his violence, his offence, his interpersonal style and possible difficulties with his mental health. Ms Hill suggested that Mr Hanzlik be encouraged to engage with the District Health Board for an assessment of his mental health. Ms Hill does not report the source of her information about Mr Hanzlik’s mental health problems.
[43] In the light of all of this evidence, and these expert opinions of psychologists, I am satisfied that Mr Hanzlik did have a defence of reasonable excuse on this alternative basis. Quite clearly it was not negated by the Crown because it was not addressed by the Crown. The fact that the nature of the defence was not clearly articulated in the District Court does not, in all the circumstances of this case, and again including matters to be considered in respect of the third issue, justify a conclusion other than that the appeal against conviction should be allowed.
Issue 3: Was there breach of s 25 of the New Zealand Bill of Rights Act 1990?
[44] Section 25 prescribes minimum standards of criminal procedure. The thrust of the submissions for Mr Hanzlik on this appeal were concerned with the right to a fair trial under s 25(a), however, the submissions and the evidence extend to the right, in s 25(e) to present a defence.
[45] Given the conclusions already reached, it is unnecessary to consider this issue in detail. It is nevertheless appropriate to consider the issue because of its bearing on the question whether, given the primary conclusions on issues 1 and 2, the matter should be referred back to the District Court for a rehearing.
[46] This is not a case involving a contention that the Judge deprived the appellant of his right to a fair hearing. The course of the trial, and the way in which the Judge dealt with matters, arose substantially from the fact that Mr Hanzlik chose to defend himself coupled with the obvious difficulties he experienced in that regard. All of
this arose in a busy List Court. But whether there has been breach of the right to a fair hearing, or breach of other rights concerned with minimum standards of criminal procedure, does not necessarily require identification of acts by the tribunal causative of breach. A combination of circumstances, including matters relating to the defendant, or to which the defendant may have contributed, may produce a result contrary to what s 25 is designed to achieve. This was such a case.
[47] Mr Hanzlik’s right to present a defence was, in the circumstances, materially hampered by the fact that he had been in custody and arrived at Court without the documents that had been disclosed to him and which had a bearing on the second reasonable excuse defence. An effort was made to accommodate this at the beginning of the hearing but, as earlier recorded, in the end Mr Hanzlik did not have the relevant documents. These preliminary aspects, which occurred before Mr Hanzlik got to Court, nevertheless adversely affected his right to present a defence in Court. This was compounded by the circumstances in which he arrived at the Court, also as earlier recorded. In terms of broad justice, there is also a question — and perhaps a more fundamental one — as to why he was remanded in custody in the first place. The fact that Mr Hanzlik apparently refused to sign a bail bond should not have resulted in his being in custody on a charge of this nature, and remaining in custody for almost three weeks.
[48] Mr Hanzlik clearly had difficulties in presenting his defence. This did not arise through factors which meant that he was the author of his own misfortune. It arose, primarily, from the clear difficulty he had in communicating clearly in English, in understanding what was said, and in conducting a coherent line of cross- examination. The Judge was alert to the difficulties. At callover, immediately following the discussion recorded above at [11], the Judge asked if there was a duty solicitor in Court. Mr Hanzlik said he was representing himself, and Ms Gordon said she had made enquiries and understood that Mr Hall, who I assume was the duty solicitor, had offered to go and see Mr Hanzlik. There is no further record as to what happened in that regard other than the fact that the hearing proceeded with Mr Hanzlik representing himself and with the consequences I have referred to. The record available to me does not indicate that any formal advice was given to Mr Hanzlik as to the desirability of engaging a lawyer and the risks in not doing so.
[49] There were aspects of the hearing indicating that some matters were dealt with in a fairly summary way. For example, there does not appear to have been any enquiry of Mr Hanzlik in respect of the Crown’s application to amend the charge. This was a point given emphasis by Mr Eastwood on the appeal. In the scheme of things, that may not be of much consequence, particularly as the result was not to Mr Hanzlik’s disadvantage given the conclusion on issue 1. But he was entitled to be heard on the application. He was also entitled to be heard on the question of conviction as well as sentence.
[50] It is clear from the transcript that the Judge, notwithstanding the pressures of the List Court, extended considerable latitude to Mr Hanzlik in his attempt at conduct of a defence. This included what amounted to fairly lengthy submissions from Mr Hanzlik in the course of what should have been cross-examination by him. Nevertheless, because of the range of other circumstances which I have referred to, it does seem to me that the fundamental requirements of a fair hearing and a right to present a defence, which requires the substance and not simply the form of an attempted presentation of a defence, were not met. This conclusion does not lead to some additional form of relief on the appeal. As earlier indicated, it is a conclusion that underpins the decision that this is not a matter that should be referred back to the District Court for a rehearing.
Result
[51] The appeal is allowed, the conviction is quashed, and the charge is dismissed.
Woodhouse J
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