J, Compulsory Care recipient, by his welfare guardian T v Attorney-General
[2018] NZHC 1209
•25 May 2018
NOTE: PURSUANT TO S 130 OF THE INTELLECTUAL DISABILITY (COMPULSORY CARE AND REHABILITATION) ACT 2003, ANY REPORT OF THIS PROCEEDING MUST COMPLY WITH SS 11B, 11C AND 11D OF THE FAMILY COURT ACT 1980. IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-Ā-TARA ROHE
CIV-2017-485-25
[2018] NZHC 1209
UNDER The Statutes of Westminster the First 1275, The Bill of Rights Act 1688, The Judicature Amendment Act 1982, The New Zealand Bill of Rights Act 1990, The Criminal Procedure (Mentally Impaired Persons) Act 2003, The Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003 and the Common Law IN THE MATTER
Of an application for Judicial Review, Declarations of Inconsistency, and Public Law Compensation
BETWEEN
J, COMPULSORY CARE RECIPIENT, BY HIS WELFARE GUARDIAN, T
Applicant
AND
THE ATTORNEY-GENERAL
First Defendant
THE DISTRICT COURT AT MANUKAU
Second Defendant
THE FAMILY COURT AT MANUKAU
Third Defendant
THE CARE CO-ORDINATOR
Fourth Defendant
THE CARE MANAGER
Fifth Defendant
Hearing: 3 – 11 July 2017
J, COMPULSORY CARE RECIPIENT, BY HIS WELFARE GUARDIAN, T v THE ATTORNEY-GENERAL [2018] NZHC 1209 [25 May 2018]
Appearances: T J Ellis and G K Edgeler for Applicant
M J McKillop and O J G Upperton for First Defendant M G Coleman and I S Auld for Fourth Defendant
Judgment:
25 May 2018
JUDGMENT OF CULL J
Table of contents
INTRODUCTION..................................................................................................... [1]
The four proceedings................................................................................................. [1]
Structure of the judgment.......................................................................................... [4]
BACKGROUND FACTS AND RELEVANT CHRONOLOGY.................................. [5]
THE RELEVANT DISABILITY LEGISLATION IN NEW ZEALAND.................... [9]
Criminal Justice Act 1985......................................................................................... [11]
CPMIP Act............................................................................................................... [15]
The IDCCR Act........................................................................................................ [20]
PART 1 - THE CPMIP APPEAL.............................................................................. [28]
The conviction and sentence decisions – 2004 to 2006............................................... [30]
Issues on appeal........................................................................................................ [33]
Approach to appeal.................................................................................................. [35]
Parties’ positions...................................................................................................... [39]
Preliminary matters................................................................................................. [41]
Leave to appeal...................................................................................................... [42]
Inadmissibility of medical evidence......................................................................... [49]
(a)Consent......................................................................................................... [54]
(b)Health Assessors’ reports................................................................................ [58]
Dr Sinclair’s report................................................................................................ [58]
Dr Duff ’s report..................................................................................................... [64]
Court-ordered reports of Dr Fernandez, Dr Burgess and Ms Breen........................... [73]
Conclusion on s 33 EAA......................................................................................... [81]
Grounds of appeal.................................................................................................... [84]
Ground 1 – misleading medical evidence................................................................. [84]
(a)Sexual violence risk against children............................................................... [88]
(b)Physical violence risk..................................................................................... [91]
(c)Arson risk...................................................................................................... [94]
Discussion............................................................................................................. [97]
Ground 2 – no s 9 hearing or reasons.................................................................... [104]
Discussion........................................................................................................... [109]
Ground 3 – no s 14 hearing or any record or reasons............................................. [114]
Discussion........................................................................................................... [116]
Ground 4 – no intellectual disability...................................................................... [122]
Discussion........................................................................................................... [123]
Ground 5 – J’s other defences not considered......................................................... [127]
Discussion........................................................................................................... [128]
Ground 6 – undue delay....................................................................................... [131]
Discussion........................................................................................................... [132]
Ground 8 – s 25 CPMIP Act disposition was unlawful............................................ [142]
Discussion........................................................................................................... [143]
Ground 9 –CPMIP Act is discriminatory............................................................... [150]
Discussion........................................................................................................... [151]
Conclusion.............................................................................................................. [153]
PART 2 - FAMILY COURT APPEAL.................................................................... [158]
Approach on appeal............................................................................................... [160]
Eligibility criteria................................................................................................... [162]
Applicable legal principles to the extension of a compulsory care order................. [165]
Considerations for a variation of a compulsory care order...................................... [173]
Fresh evidence on appeal........................................................................................ [175]
Grounds of appeal.................................................................................................. [180]
(a)Did the Judge wrongly conclude J had an intellectual disability?.................... [181]
Ms Breen’s report................................................................................................. [188]
2016 specialist assessors’ reports.......................................................................... [189]
Conclusion.......................................................................................................... [198]
(b)Did the Judge apply the wrong legal test and standard of proof to the extension
of the care order under s 85?................................................................................ [200]
Discussion........................................................................................................... [202]
(c)Did the Judge overlook J’s arbitrary detention contrary to s 22 NZBORA?...... [215]
(d)Did the Judge err in concluding the maximum term of detention was not
cumulatively three years?..................................................................................... [221]
(e)Did the Judge err in law in finding the specialist assessors’ reports and J’s
drawing were admissible?.................................................................................... [225]
(g)Did the Judge err in considering risk assessment trumps the rights of the care
recipient?............................................................................................................ [230]
(h)Did the Judge err in law in not cancelling the deferment order?...................... [235]
(i)Did the Judge err in not placing J at Solway Vision?...................................... [241]
(j)Did the Judge err in his interpretation of RIDCA v VM?................................. [247]
Discussion........................................................................................................... [251]
(k)Was the decision to extend J’s compulsory care order by 18 months
unreasoned?........................................................................................................ [259]
Further observations............................................................................................ [262]
Conclusion.............................................................................................................. [269]
PART 3 – HIGH COURT INQUIRY UNDER SECTION 102 IDCCR ACT........... [271]
Relevant facts......................................................................................................... [273]
The application....................................................................................................... [277]
The legislative procedure....................................................................................... [278]
The issues for inquiry............................................................................................. [284]
Procedural steps..................................................................................................... [286]
Issue 1 – Does J have an intellectual disability?...................................................... [300]
The examination of witnesses................................................................................ [306]
Prior evidence of intellectual disability.................................................................. [310]
The Family Court specialist assessors’ reports....................................................... [317]
Dr Webb’s assessment and opinion........................................................................ [319]
Dr Webb’s Family Court evidence......................................................................... [327]
Dr Webb’s evidence in this inquiry......................................................................... [336]
The use of psychometric testing for intelligence testing........................................... [340]
Conclusion.......................................................................................................... [353]
Issue 2 – Does J need to be cared for as a care recipient any longer?...................... [356]
Guiding principles............................................................................................... [362]
(a)The community protection interests............................................................... [364]
The risk assessments............................................................................................ [364]
J’s past history..................................................................................................... [366]
The validity of the risk assessment tools................................................................. [371]
Margins of error for risk assessments.................................................................... [387]
Conclusion on risk assessments............................................................................. [392]
Any reduction of risk by rehabilitation?................................................................. [395]
(b)J’s liberty interests....................................................................................... [406]
The relevance of the index offending...................................................................... [406]
The relevance of J’s “index offending”.................................................................. [408]
Lowest level of compulsory care required to achieve community protection.............. [413]
Conclusion.............................................................................................................. [429]
PART 4 – JUDICIAL REVIEW PROCEEDINGS.................................................. [430]
New Zealand’s disability legislation........................................................................ [432]
Arbitrary detention................................................................................................ [438]
The legal principles on arbitrary detention............................................................ [441]
International obligations and decisions................................................................. [445]
Discussion........................................................................................................... [456]
The 2011 variation of J’s order.............................................................................. [464]
Detention disproportionate to offending?............................................................... [474]
How then, does New Zealand compare internationally?.......................................... [476]
Six monthly reviews of compulsory care orders...................................................... [479]
Compulsory care orders are time-limited and individually focused.......................... [481]
District Inspector monitoring and oversight........................................................... [492]
J’s liaison District Inspector................................................................................. [498]
Conclusion.......................................................................................................... [504]
Discrimination........................................................................................................ [506]
The “discriminatory process” under the CPMIP Act and IDCCR Act...................... [510]
New Zealand authorities....................................................................................... [515]
Discussion........................................................................................................... [526]
a)Comparator group....................................................................................... [527]
b)Material disadvantage.................................................................................. [531]
c)Justified discrimination?.............................................................................. [536]
Statute of Westminster.......................................................................................... [538]
Authorities from overseas jurisdictions.................................................................. [541]
United Kingdom................................................................................................... [542]
Canada............................................................................................................... [545]
International conventions..................................................................................... [551]
ICCPR – Civil Political Rights Covenant............................................................... [553]
CRPD – the disability convention.......................................................................... [559]
Discussion........................................................................................................... [568]
Conclusion.......................................................................................................... [572]
Errors of law.......................................................................................................... [574]
Conclusion.......................................................................................................... [576]
Overlapping causes of action.................................................................................. [577]
Cause of action nine – breach of s 9 NZBORA....................................................... [578]
Treatment is not disproportionately severe............................................................. [585]
Conclusion.......................................................................................................... [589]
Cause of action 11 – Breach of s 23(5) NZBORA.................................................... [590]
Conclusion.......................................................................................................... [598]
Cause of action 14 and 13 – Stay of proceedings and compensation........................ [599]
Destruction of the criminal court file..................................................................... [601]
Conclusion.......................................................................................................... [608]
Conclusion on judicial review................................................................................. [609]
SUMMARY OF CONCLUSIONS.......................................................................... [611]
Part 1 – The CPMIP Appeal................................................................................... [611]
Part 2 – Family Court Appeal................................................................................. [615]
Part 3 – High Court inquiry under section 102 IDCCR Act.................................... [617]
Part 4 – Judicial review proceedings...................................................................... [618]
Conclusion on arbitrary detention......................................................................... [619]
Conclusion on discrimination............................................................................... [621]
Conclusion on errors of law.................................................................................. [622]
Conclusion on overlapping causes of action........................................................... [623]
Appendix 1 - Chronology
INTRODUCTION
The four proceedings
[1] J has an intellectual disability and is a care recipient who has been in supervised and/or secure care since 8 February 2006, after being found unfit to stand trial on two criminal charges. J is 34 years old and through his welfare guardian, his mother, challenges the validity of his compulsory care orders by way of four separate proceedings.
[2] The Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003 (IDCCR Act) provides for appropriate compulsory care of individuals who have an intellectual disability and who are convicted of an offence.1 The Criminal Procedure (Mentally Impaired Persons) Act 2003 (CPMIP Act) provides for orders that a defendant be cared for as a care recipient under the IDCCR Act, when a defendant is found unfit to stand trial.2
[3] This judgment addresses the four separate proceedings before this Court, which were heard together.3 They are:
(a)an appeal under ss 16 and 17 of the CPMIP Act, against the findings of J’s involvement in the alleged criminal offending, unfitness and disability and the orders that J be held as a care recipient under the IDCCR Act. This will be referred to as the “CPMIP appeal”, including the application for leave to bring the appeal over 12 years out of time;
(b)an appeal from the Family Court order on 27 February 2017, which extended J’s care order by a period of 18 months and varied it to secure compulsory care order;
(c)a s 102 IDCCR Act inquiry by the High Court into the legality of detaining J as a care recipient; and
1 Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003, s 3.
2 Criminal Procedure (Mentally Impaired Persons) Act 2003, s 24.
3 As directed by Collins J in J v Attorney-General [2017] NZHC 701 at [46]–[48].
(d)an application for judicial review challenging the arbitrary detention of J, the discriminatory nature of the IDCCR Act and breaches of the New Zealand Bill of Rights Act 1990 (NZBORA).
Structure of the judgment
[4] In this judgment, I propose to deal with general matters common to all four proceedings, followed by an analysis of each of the proceedings, with the chronology and the party’s respective positions relevant to each. The structure I adopt is as follows:
(a)Background facts and relevant chronology;
(b)The relevant disability legislation of New Zealand;
(c)Part 1 – CPMIP appeal;
(d)Part 2 – the Family Court appeal;
(e)Part 3 – s 102 IDCCR Act inquiry application;
(f)Part 4 – the judicial review proceedings; and
(g)Summary of conclusion.
BACKGROUND FACTS AND RELEVANT CHRONOLOGY
[5] The background facts were canvassed by Collins J in a judgment addressing five pre-trial questions of law concerning the validity of the orders made in relation to J, under the CPMIP Act and the IDCCR Act.4 The pre-trial questions of law arose from an application filed by Dr Ellis on behalf of J, for a habeas corpus order. The application was dismissed, on the basis that the multiple arguments raised in the application were not amenable to a habeas corpus hearing and that an application for judicial review was more appropriate.5
4 J, above n 3, at [5]–[8].
5 At [40]; and J v Care Manager [2017] NZHC 15.
[6] In delivering his judgment, Collins J succinctly canvassed the background facts, which I set out below:6
[5] J, who is now 33 years old, was diagnosed with autistic spectrum disorder at an early age. In addition, J has been assessed as having a low IQ. An assessment of J’s IQ, using a Wechsler Adult Intelligence Test (WAI-III) was conducted in 2005 when J was 21 years old and revealed he had a Full-Scale Intelligence Quota of between 58 and 68, functioning below 99.5 [per cent] of similar aged peers. A report from Dr Jensen, a registered clinical psychologist, dated 13 November 2016 states J’s IQ is unlikely to have changed since he was assessed in 2005. Dr Webb, a registered psychologist, also recently assessed J’s IQ using a Wechsler Adult Intelligence Test (WAI-IV) and considered J to have intellectual disabilities.
[6] Reports from health professionals who have assessed J record that he has violent fantasies, engages in impulsive violent behaviour and does not have an understanding that his violent behaviour could cause harm. The earliest recorded example of J’s violent behaviour was in 2000 when he attempted to injure another student by cutting her neck. J’s recorded violent fantasies include a belief he was James Bond and that he was on “missions”. These “missions” included J breaking into a school building in 2004 to cut a teacher’s head off. Health professionals have described their concerns about the risk J poses through pictures he has drawn and descriptions given of the removal of people’s feet or cutting their necks open. Other examples of the risk it is believed J poses and his lack of appreciation of consequences can be found in reports, which describe how he tried to grab the driver of a vehicle in which he was being transported that was travelling at speed because he wanted to experience being in an accident.
[7] In 2004, J was charged with two minor offences, namely being unlawfully in an enclosed yard and wilful damage. He was, at the same time, charged with the more serious offence of being in possession of an offensive weapon. That charge however appears to have been discontinued at an early stage.
[8] On 8 February 2006, Judge R L Kerr made an order in the Manukau District Court that J was not fit to stand trial. This order was made under the CPMIP Act. Concurrently, Judge Kerr ordered J be cared for as a care recipient under the IDCCR Act. The latter order meant that he was deemed to be subject to a compulsory care order under the IDCCR Act.
[7] A detailed chronology of the orders which have been made in respect of J from 8 February 2006 to 28 February 2017, being the period of time over which J has been held as a care recipient receiving supervised care under the IDCCR Act, is contained in appendix 1 to this judgment.
[8] The relevant parts of the chronology are explored in more detail, where relevant, in respect of each of the four proceedings.
6 Footnotes omitted.
THE RELEVANT DISABILITY LEGISLATION IN NEW ZEALAND
[9] Before embarking on an analysis of each of the four proceedings, it is relevant to address the legislation, which governs the matters raised in all four proceedings. The relevant acts are the CPMIP Act and the IDCCR Act. Although the CPMIP Act was enacted in 2003, both the CPMIP and IDCCR Acts came into force on 1 September 2004, approximately three months after the date of J’s offending on 8 June 2004.7
[10] At the time of J’s appearance before the District Court in June 2004, the provisions of the Criminal Justice Act 1985 (CJA) governed the procedure for persons who were “under disability”. After 1 September 2004, both the CPMIP and IDCCR Acts applied and governed the procedural steps, including the ultimate disposition in J’s case, to a secure facility under the IDCCR Act.
Criminal Justice Act 1985
[11] Up to 1 September 2004, Part 7 of the CJA conferred powers on the courts in respect of persons who were charged with imprisonable criminal offending but were “under disability”.8
[12] The meaning of “under disability”, was defined under s 108 of the CJA, as being a person who was “mentally disordered” and was unable:
(a)to plead; or
(b)to understand the nature of purpose of the proceedings; or
(c)to communicate adequately with counsel for the purposes of conducting a defence.
7 Criminal Procedure (Mentally Impaired Persons) Act Commencement Order 2004, cl 2; and Intellectual Disability (Compulsory Care and Rehabilitation) Act Commencement Order 2004, cl 2(2).
8 Part 7 of the Criminal Justice Act 1985 was repealed by the Criminal Procedure (Mentally Impaired Persons) Act 2003, s 48.
[13] Section 111 of the CJA governed the decisions as to whether a person was under disability. A judge was empowered to make such an order, on the evidence of two specialists, who were required to provide reports to the court.
[14] The power of the court to require a psychiatric report was contained under s 121 of the CJA, if a psychiatric report would assist the court in determining if a defendant was under disability.9 It was under this provision, that the District Court in Manukau ordered a formal psychiatric assessment for J, when J appeared in Court on 9 June 2004 on three criminal charges.
CPMIP Act
[15] The CPMIP Act provides a means of triaging defendants charged with criminal offences. Those who are fit to stand trial are subject to the criminal justice system. Those who are unfit to stand trial are subject to care orders under the Mental Health (Compulsory Assessment and Treatment) Act 1992 (MHCAT Act) or the IDCCR Act respectively. Thus, the CPMIP Act works in tandem with the IDCCR Act and the MHCAT Act, where applicable. The CPMIP Act replaced and restated the law as contained in the CJA, making a number of changes to that law.10 Section 3 of the CPMIP Act states its purpose as follows:
3 Purpose
The purpose of this Act is to restate the law formerly set out in Part 7 of the Criminal Justice Act 1985 and to make a number of changes to that law, including changes to—
(a)provide the courts with appropriate options for the detention, assessment, and care of defendants and offenders with an intellectual disability:
(b)provide that a defendant may not be found unfit to stand trial for an offence unless the evidence against the defendant is sufficient to establish that the defendant caused the act or omission that forms the basis of the offence:
(c)provide for a number of related matters.
9 Criminal Justice Act 1985, s 121(1)(a).
10 For a review of the legislative history of the mental health legislation as well as CPMIP Act and the IDCCR Act, refer to the review by Ellis J in S v Attorney-General [2017] NZHC 2629 at [43]– [99].
[16] The definition of “unfit to stand trial” in relation to an offender relies for its threshold on “mental impairment”, as distinct from “mental disorder” defined in s 2(1) of the MHCAT Act. The definition of “unfit to stand trial” in the CPMIP Act, as defined in relation to a defendant:11
(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.
[17] Although the term “mental impairment” is not defined, as Ellis J observed in S v Attorney-General,12 “it is plainly (on both a literal and purposive interpretative approach) wide enough to encompass intellectual disability”.13
[18] Before a defendant can be found unfit to stand trial, the court must be satisfied on the balance of probabilities that the defendant caused the act or omission that forms the basis of the offence as charged.14 Once the court is satisfied of the defendant’s involvement in the offence, the court must record its finding on the matter15 and then receive the evidence of two health assessors as to whether the defendant is mentally impaired.16
[19] Again, the court must be satisfied on the balance of probabilities from the evidence of the two health assessors that the defendant is mentally impaired.17 The court must record a finding to that effect, after giving each party an opportunity to be heard.18 Once a defendant has been found unfit to stand trial (or acquitted on account of his or her insanity), the court can detain the defendant in a hospital as a special
11 Criminal Procedure (Mentally Impaired Persons) Act 2003, s 4(1).
12 S, above n 10.
13 At [53].
14 Criminal Procedure (Mentally Impaired Persons) Act 2003, ss 3(b) and 9.
15 Section 13.
16 Section 14(1).
17 Section 14(3).
18 Section 14(2).
patient under the MHCAT Act or in a secure facility as a special care recipient under the IDCCR Act.19 Alternatively, where such detention is not necessary, the court must deal with the defendant by:20
(a)ordering the defendant be treated as a patient under the MHCAT Act; or
(b)ordering the defendant be cared for as a care recipient under the IDCCR Act; or
(c)deciding not to make an order if the person is liable to serve a sentence of imprisonment; or
(d)ordering the immediate release of the defendant.
The IDCCR Act
[20] The purposes and principles of the IDCCR Act are set out in s 3 of the Act. Importantly, the legislative aim was to provide courts with appropriate compulsory care and rehabilitation options for offenders who have an intellectual disability and who previously had no other options (unless mentally disordered) than imprisonment for serious offending. The purposes in s 3 are:
(a) to provide courts with appropriate compulsory care and rehabilitation options for persons who have an intellectual disability and who are charged with, or convicted of, an offence; and
(b) to recognise and safeguard the special rights of individuals subject to this Act; and
(c) to provide for the appropriate use of different levels of care for individuals who, while no longer subject to the criminal justice system, remain subject to this Act.
[21] The IDCCR Act also provides principles, which govern the exercise of powers under the Act and they are set out in s 11, as follows:
11 Principles governing exercise of powers under this Act
19 Section 24(2).
20 Section 25(1).
Every court or person who exercises, or proposes to exercise, a power under this Act in respect of a care recipient must be guided by the principle that the care recipient should be treated so as to protect—
(a)the health and safety of the care recipient and of others; and
(b)the rights of the care recipient.
[22]There are three gateways to the IDCCR Act provisions:
(a)by referral from a court during criminal proceedings, through the CPMIP Act procedure;21
(b)by transfer of sentenced prisoners from prison;22 and
(c)by transfer of those who were originally placed under orders under the MHCAT Act.23
[23] Of relevance to all of the four proceedings in this matter, J entered the IDCCR Act provisions by way of an order under s 25(1)(b) of the CPMIP Act, made in the District Court on 8 February 2006.
[24] Once an order is made under s 25(1)(b) of the CPMIP Act, by reason of s 26(2) CPMIP Act, that order is deemed to be an order for the purposes of the IDCCR Act, as illustrated by the orders affecting J.
[25] As will be explored further, the term “intellectual disability” is the threshold test, for the exercise of the provisions under the IDCCR Act. “Intellectual disability” is defined in s 7(1) as meaning a permanent impairment that:
(a) results in significantly sub-average general intelligence; and
(b) results in significant deficits in adaptive functioning, as measured by tests generally used by clinicians, in at least 2 of the skills listed in subsection (4); and
(c) became apparent during the developmental period of the person.
21 Criminal Procedure (Mentally Impaired Persons) Act 2003, ss 24 and 25.
22 Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003, ss 29–46.
23 For example, Mental Health (Compulsory Assessment and Treatment) Act 1992, s 47A.
[26]Importantly, ss 7(3) and (4) refine that further by:
(3) For the purposes of subsection (1)(a), an assessment of a person’s general intelligence is indicative of significantly sub-average general intelligence if it results in an intelligence quotient that is expressed—
(a)as 70 or less; and
(b)with a confidence level of not less than 95%.
(4) The skills referred to in subsection (1)(b) are—
(a)communication:
(b)self-care:
(c)home living:
(d)social skills:
(e)use of community services:
(f)self-direction:
(g)health and safety:
(h)reading, writing, and arithmetic:
(i)leisure and work.
[27]I turn then to consider each of the proceedings.
PART 1 - THE CPMIP APPEAL
[28] On 9 June 2004, J was charged with three offences, including two minor offences of being unlawfully in an enclosed yard24 and intentional damage.25 The third charge was the more serious offence of being in possession of an offensive weapon. That charge was withdrawn at an early stage.
[29] The summary of facts records that J went to a neighbouring property with a large axe, which he used to break two windows of a neighbour’s garage and continued to break the front, rear and side windscreens of the neighbour’s work van. J’s mother arrived at the scene and restrained J from causing any further damage. J cut his hand on the broken glass and was required to be taken to hospital. When J was asked for
24 Summary Offences Act 1981, s 29(1)(b) with a maximum penalty of three months’ imprisonment.
25 Section 11(1)(a). The maximum penalty is also three months’ imprisonment.
an explanation, he said he was “James Bond and licensed to kill.” J was aged 20 years at the time. He had previously appeared before the Court.
The conviction and sentence decisions – 2004 to 2006
[30] As detailed below, findings under the CPMIP Act as to the defendant’s involvement in the offence, under s 9, and unfitness to stand trial, under s 14, are treated as convictions for the purpose of any appeal right.26 Dispositions and orders made under ss 24, 25 or 27 of the CPMIP Act are treated as a sentence for the purpose of any appeal.27
[31] The decisions, which are subject to this appeal, cover the date from which J first made an appearance on 9 June 2004 to the ultimate disposition hearing on 8 February 2006. From 9 June 2004 to 8 February 2006, assessments, remands, call- over appearances, a disability hearing and further appearances on J’s behalf were made before a number of District Court Judges. The following is a chronology of key dates:
9 June 2004 J charged with wilful damage, possession of offensive weapon and unlawfully in an enclosed yard.
J remanded on bail and psychiatric report ordered under s 121(2)(a) of the CJA.
8 July 2004 J assessed by psychiatrist Dr P Fernandez for preparation of s 121(2)(a) CJA report. 9 July 2004 J bailed to live at an address directed by RIDCA.28 12 July 2004 Psychological risk assessment report prepared by psychologist Dr M Sinclair. 14 July 2004 District Court orders second opinion under s 121(2)(6)(i) of
the CJA.
31 August 2004 J assessed by Dr T Burgess, a MOSS29 at the Regional Forensic Psychiatry Services, for preparation of a s 121(2)(a) CJA report. 15 September to
2 November 2004
Three further callover appearances on behalf of J. 17 September
2004
J, through his solicitor, notified of police decision to proceed with CPMIP Act procedure.
26 Criminal Procedure (Mentally Impaired Persons) Act 2003, s 16(2).
27 Section 29.
28 Regional Intellectual Disability Care Agency.29 Medical Officer Special Scale.
7 February 2005 Disability hearing under ss 9 and 14 CPMIP Act; findings of involvement and of disability (unfit to plead). J was bailed to reside at Solway Trust (Tuakau) under s 23(2)(a) CPMIP Act and disposition inquiries ordered. 4 March 2005 Specialist assessment completed by T Breen, clinical psychologist. 7 March 2005 to
27 October 2005
Further reassessment report from T Breen received, adjournments with J’s appearance excused and J’s change of counsel occurs. 7 November 2005 Disposition hearing set down for 7 February 2006 and report from Mr Woodcock, registered psychologist, received. 8 February 2006 Disposition hearing under CPMIP Act. Order made under s 25(1)(b) CPMIP Act that J be held in a secure facility as a care recipient, under the IDCCR Act.
[32] In summary, J was remanded from 9 June 2004 to 8 February 2006, initially on bail, to attend the preparation and assessments for the s 121(2)(a) CJA reports. Following the disability hearing on 7 February 2005, in which findings of his involvement in the offending and his unfitness to stand trial were made, J was bailed to reside at the Solway Trust facility. A disposition hearing was then held on 8 February 2006, at which Judge R L Kerr ordered J be cared for as a care recipient under the IDCCR Act pursuant to s 25(1)(b) of the CPMIP Act.30
Issues on appeal
[33] On 27 April 2017, a notice of general appeal was filed on behalf of J, against the District Court findings in respect of the two criminal charges of wilful damage and being unlawfully in a yard. Consistent with the legislation, the appeal is a conviction and sentence appeal, with the ss 9 and 14 CPMIP Act findings equating to convictions and the s 25 CPMIP Act disposition being the equivalent of a sentence.
[34] In the original notice of appeal, the grounds advanced were that “remand on bail for 22 months under house arrest followed by detention in a secure facility for two
30 New Zealand Police v [J] DC Manukau CRN-409-203-4925-26, 8 February 2006 [Disposition decision]. While the Court record notes the disposition hearing occurred on 7 February 2006, the oral decision of Judge Kerr, made on 8 February 2006, records the hearing taking place the same day (8 February 2006). In this judgment, the disposition hearing will be deemed to have taken place on 8 February 2006. The Judge referred to both ss 24 and 25(1)(b) of the CPMIP Act when making the disposition order, as required under s 25(1), but the order was made under s 25(1)(b) as Collins J clarified.
years was both manifestly excessive and disproportionately severe. The appellant was wrongly found to be intellectually disabled.” By the time of the hearing, the grounds of appeal had been amended and the following nine were advanced:
(a)Ground 1 – a prejudicial profile of J was created by health professionals that caused a serious miscarriage of justice.
(b)Ground 2 – no record or reasons were given for the s 9 CPMIP Act hearing or decision, which was unfair.
(c)Ground 3 – no hearing or reasons were given for the s 14 CPMIP Act finding.
(d)Ground 4 – J was wrongly found to have an intellectual disability.
(e)Ground 5 – other defences, such as temporary insanity, for J were not considered.
(f)Ground 6 – undue delay in conducting inquiries was contrary to s 23 CPMIP Act.
(g)Ground 7 – the health professional reports were inadmissible.
(h)Ground 8 – the disposition under s 25 CPMIP Act was unlawful.
(i)Ground 9 – the CPMIP Act process is discriminatory.31
Approach to appeal
[35] The relevant approaches to appeal that applied under the CPMIP Act at the time of the District Court findings are outlined below. Essentially, the question to be determined is whether there was sufficient evidence at the time of the conviction to make the relevant orders.
31 This ground is also common to the Family Court appeal and judicial review.
[36] The approach to an appeal, against a determination that a defendant is involved in an offence (ss 9–13) and unfit to stand trial (s 14), is governed by ss 16 and 17 of the CPMIP Act:32
16Appeal by defendant against finding relating to fitness to stand trial
(1)A defendant about whom a finding under section 14(2)(b) has been made may appeal against one or both of the following findings:
(a)that the evidence against the defendant is sufficient to establish that the defendant caused the act or omission that forms the basis of the offence with which the defendant is charged:
(b)that the defendant is unfit to stand trial or, as the case may be, fit to stand trial.
(2)For the purposes of an appeal under this section,—
(a)the finding appealed against is to be regarded as a conviction; and
(b)the provisions of the Crimes Act 1961 or the Summary Proceedings Act 1957 relating to appeals against conviction, so far as they are applicable and with any necessary modifications, apply to the appeal.
17Matters for appellate court on appeal under section 16
(1)If, on an appeal under section 16, the court is satisfied that the evidence against the defendant is not sufficient to establish that the appellant caused the act or omission that forms the basis of the offence with which the appellant is charged, the court must quash the finding appealed against and direct that the appellant be discharged.
(2)A discharge under subsection (1) does not amount to an acquittal.
(3)In the case of an appeal against a finding relating to the appellant’s fitness to stand trial, the court must (except where the appellant has been discharged under subsection (1)) consider the evidence of 2 health assessors, and confirm or quash the finding relating to the appellant’s mental impairment.
(4)If the court is satisfied that the appellant is mentally impaired, the court must—
(a)give the appellant and the respondent an opportunity to be heard and to present evidence as to whether the appellant is unfit to stand trial; and
32 The versions of the provisions reproduced here are those which applied on 7 February 2005 when the District Court determined J was involved in the offence (s 9 CPMIP Act) and was unfit to stand trial (s 14 CPMIP Act).
(b)confirm or quash the finding relating to the appellant's fitness to stand trial.
(5)If the result of the appeal is that the appellant is fit to stand trial, the court must remit the case to the High Court or the District Court, as the case may require.
[37] The approach to an appeal against a disposition order under s 25 is governed by s 29 of the CPMIP Act:33
29 Appeals against orders under section 24 or section 25 or section 27
(1)If the court makes an order or a decision under section 24 or section 25 or section 27, the defendant and the prosecution have the same right of appeal against the order or decision as the defendant or, as the case requires, the prosecution would have if the order or decision were a sentence.
(2)The provisions of the Crimes Act 1961 or the Summary Proceedings Act 1957 relating to appeals, so far as they are applicable and with any necessary modifications, apply to the appeal.
(3)On such an appeal, the court may—
(a)dismiss the appeal:
(b)vary the order appealed against:
(c)cancel the order or decision appealed against and substitute another order or decision under section 24 or section 25 or section 27.
[38] As ss 16 and 29 of the CPMIP Act specify, this appeal is an appeal against conviction (ss 9 and 14 findings) and sentence (s 25(1)(b) order). As discussed earlier,34 the Summary Proceedings Act appeal process also applies. Section 115(2) and (4) of the Summary Proceedings Act provides that both conviction and sentence appeals are general appeals to the High Court.35
33 The relevant version of the provision reproduced here is that which applied on 8 February 2006 when the District Court ordered J be held as a care recipient under the IDCCR Act (order per s 25(1)(b) of the CPMIP Act).
34 At [43] of this judgment.
35 It is also worth noting that this is in contrast to a sentence appeal brought at the same time under s 385 of the Crimes Act 1961 (prior to the introduction of the Criminal Procedure Act 2011), which was not a general appeal but an appeal against a discretion. See R v Shipton [2007] 2 NZLR 218 (CA) at [138]–[140].
Parties’ positions
[39] Counsel for J, Dr Ellis, submits that as the criminal process was the starting point of J’s formal disability findings, if J was improperly “convicted” or “sentenced” under the CPMIP Act, the need for the substantive argument in the remaining three proceedings diminishes. In other words, using Dr Ellis’ terminology, a successful CPMIP appeal is a “silver bullet” for J, as it invalidates any subsequent order made by the District Court in respect of J.
[40] The Crown, on behalf of the Police, submit that leave to appeal out of time ought to be declined, because apart from delay in bringing this appeal, it is not necessary in the interests of justice to grant J leave to appeal, where he has the ability to challenge his continuing detention through other means. If leave to appeal is granted, the Crown submits the appeal ought to be dismissed as the Court’s findings as to J’s involvement in the offending and unfitness to stand trial were correct. The Court’s disposition of J as a care recipient was lawful and non-discriminatory.
Preliminary matters
[41] Before addressing each of the grounds of appeal as advanced, there are two preliminary issues to be considered, the first of which involves J’s application for leave to appeal and the second which involves ground seven, the admissibility of the medical reports. I will now deal with each of those issues.
Leave to appeal
[42] J seeks leave to appeal the following findings under the CPMIP Act, 11 and a half years out of time. Those findings are:
(a)that J was involved in the offending under ss 9 to 13;
(b)that J was unfit to stand trial under s 14; and
(c)J’s disposition made under s 25(1)(b) of the CPMIP Act.
[43] As the two charges were both summary offences commenced before the Criminal Procedure Act 2011 came into force in July 2013,36 the Summary Proceedings Act 1957 appeal process applies.
[44] Under s 115 of the Summary Proceedings Act, a general right of appeal to the High Court was available. Any such appeal had to be filed within 28 days of sentencing or the date of the relevant decision.37 In this case, it would have been 28 days after the date on which the finding of unfitness was made, or the date of the disposition under s 25 of the CPMIP Act.
[45] The High Court may, on an application, extend the time for filing a notice of appeal.38 In Cleggs Ltd v Department of Internal Affairs, Thorp J articulated the standard required under the Summary Proceedings Act for leave to be granted to extend time:39
(i)That the onus is on the applicant to show special circumstances why the decisions and sentences should not stand;
(ii)That the discretion is given essentially for the purpose of avoiding miscarriages of justice;
(iii)That all the circumstances of the particular case should be considered in deciding whether sufficient grounds have been shown; but
(iv)That one of the matters which must be established is that there is a real likelihood that an appeal would succeed if leave is granted; some of the authorities going to the stage that the likelihood must extend to the point of establishing a probability of success.
[46] Recently, in Pepperell v Police, Ellis J considered the overall question of whether it is necessary in the interests of justice to grant leave.40 The Judge noted that there are a variety of considerations relevant to the interests of justice, but the essential factors are the length and reason for the delay and the merits of the proposed appeal.41 In R v Lee, the Court of Appeal stated that a long delay is a major factor weighing against leave and when it is unexplained, it will usually be decisive.42
36 Criminal Procedure Act Commencement Order 2013, cl 2.
37 Summary Proceedings Act 1957, s 116(1).
38 Section 123(1).
39 Cleggs Ltd v Department of Internal Affairs HC Auckland M1032/84, 5 September 1984 at 2.
40 Pepperell v Police [2016] NZHC 2654.
41 At [17].
42 R v Lee [2006] 3 NZLR 42 (CA) at [115].
[47] J relies on the reasoning of the Court of Appeal in Lawler v R, where appeals arose from convictions in 1987, 1990 and 1994 respectively, on the question of whether the appellant was fit to stand trial.43 The hearing took place in 2013 and the Court of Appeal considered that owing to the appellant’s cognitive deficits, he did not realise he was able to appeal until his current counsel advised him of his appeal right. Because the assessment of the merits of the appeals overlapped with the assessment of the applications for the extension of time, the Court proceeded to consider the merits of both in the appeal hearing and granted an extension of time.44.
[48] I propose to follow the course of the Court of Appeal in Lawler and will consider the application for extension of time for appeal together with the assessment of the merits of the appeal.45
Inadmissibility of medical evidence
[49] J claims that the reports of Dr Sinclair, Dr Fernandez, Dr Burgess, Dr Duff and Ms Breen were inadmissible before the District Court, as they were in breach of s 33(3) of the Evidence Amendment Act (No 2) 1980 (EAA). As these health assessor reports were considered by the District Court and formed the basis for the Court’s unfitness finding and ultimate disposition order, this Court must also consider them on appeal.46
[50] Further, as the Crown submits, because this appeal is a rehearing and involves the Court reaching its own view on any questions of fact,47 including hearing new evidence if required,48 the admissibility of the medical evidence should be dealt with as a preliminary matter. J submits that no consent was ever obtained from him, or from anyone on his behalf, to refer to “protected communications” and incorporate
43 Lawler v R [2013] NZCA 308.
44 At [65].
45 Lawler, above n 43.
46 Criminal Procedure (Mentally Impaired Persons) Act 2003, s 17(3) stipulates the Court on appeal must consider the evidence of two health assessors. Further, the Summary Proceedings Act 1957, s 119(2) provides that the evidence taken in the District Court shall be brought before the High Court.
47 Summary of Proceedings Act 1957, s 119(1) and (2).
48 Section 119(3).
them in reports for the Court. Further, no consent was sought or obtained at the time of making the reports.
[51]Section 33 of the EAA, since repealed, but in force until 2007 provided:49
33 Disclosure in criminal proceeding of communication to medical practitioner or clinical psychologist
(1)Subject to subsection (2) of this section, [no … medical practitioner and no clinical psychologist shall] disclose in any criminal proceeding any protected communication made to him by a patient, being the defendant in the proceeding, except with the consent of the patient.
(2)This section shall not apply to any communication made for any criminal purpose.
(3)In subsection (1) of this section, protected communication means a communication made to a … medical practitioner or a clinical psychologist by a patient who believes that the communication is necessary to enable the … medical practitioner or clinical psychologist to examine, treat, or act for the patient for—
(a)Drug dependency; or
(b)Any other condition or behaviour that manifests itself in criminal conduct;—
but does not include any communication made to a … medical practitioner or a clinical psychologist by any person who has been required by any order of a Court, or by any person having lawful authority to make such requirement, to submit himself or herself to the medical practitioner or clinical psychologist for any examination, test, or other purpose.
…
[52] As the authorities demonstrate, the courts have strictly interpreted s 33, as it conferred an absolute privilege in criminal proceedings.50 This distinguished s 33 from the general rule relating to special relationships of confidence, where the Court could exercise a discretion as to admissibility, under s 35 of the EAA. In R v Gulliver, the Court of Appeal cautioned that s 33 should not be expansively read.51
[53] There are two parts to this preliminary ground of appeal. The first is the issue of consent and the second relates to the substance of the health assessors’ reports.
49 Repealed on 1 August 2007 by the Evidence Act 2006, s 215.
50 See, for example, R v Gulliver CA 51/05, 9 June 2005 at [35] and [43].
51 Gulliver, above n 50, at [35] and [43].
(a)Consent
[54] Dr Ellis submits that the reports of the medical assessors were in contravention of s 33(3) of the EAA. He relies on R v D, a judgment of the full court of the Court of Appeal, where a defendant was convicted of a serious sexual offence and qualified for a sentence of preventive detention.52 Two medical reports were commissioned to assist the Judge at sentencing. The Court of Appeal held that the report from the psychiatrist, who was treating the accused at the time, was a protected communication under s 33 of the EAA, because the report was based upon privileged communications with the defendant and the defendant had not consented to the disclosure of those communications. The Court held that consent under s 33 of the EAA required specific and informed consent to the disclosure of a past communication.53 The test was not whether the accused chose to make a protected communication, knowing that it might be disclosed in future. The Court held the report from the treating doctor should not have been admitted as part of the sentencing process.
[55] I consider that there is a key distinction between R v D and J’s case. The District Court commissioned J’s assessment reports from Ms Breen, Dr Fernandez and Dr Burgess, none of whom were “treating” J at the time. Psychiatrists and clinical psychologists, who undertake assessments are doing so on an independent basis, in this case by Court direction under statute, and have an obligation to present J’s previous medical history, referred to as a patient’s longitudinal clinical history,54 as part of their independent report.
[56] In my view, their reports differ from that of the psychiatrist in R v D, who was treating the defendant and had access to privileged communications as a result of engaging with the accused in treatment.
[57] I address this point in further detail below, in considering each of the health assessors’ reports.55
52 R v D [2003] 1 NZLR 41 (CA).
53 At [45].
54 At [373] of this judgment.
55 At [73]–[80] of this judgment.
(b) Health Assessors’ reports Dr Sinclair’s report
[58] Dr Sinclair is a registered psychologist, who completed a psychological risk assessment on J. He completed a report dated 12 July 2004, after J was referred to him by RIDCA for an assessment of risk issues. Dr Sinclair recorded that at the time of the assessment, J was resident in the Solway Residence at Tuakau, facing three criminal charges and that he was to attend the Mason Clinic for a s 121 CJA report. He was to reappear in Court on 14 July 2004.
[59] The sources of information upon which Dr Sinclair relies, include a cognitive assessment from November 2002, a Dual Disability Services report from January 2004,56 a behaviour management plan from August 2003 and a preliminary discharge note from Tiaho Mai Mental Health Services in June 2004. Dr Sinclair also obtained J’s psychiatric/mental health history from a previous diagnosis by Dr Marks, a psychiatric assessment by Dr Werry, ongoing programming by Arohanui psychological staff, a review from Dual Disability Services and an inpatient assessment at Tiaho Mai.
[60] In addition, Dr Sinclair had interviews with J’s caregivers, including his mother, and the principal of Arohanui Special School. Dr Sinclair made professional behavioural observations in the report and gave examples from his interview with J. He summarised key points about J’s autism/intellectual disability, including his cognitive abilities, communication, emotional function and empathy. The report concluded with a risk formulation and Dr Sinclair’s recommendations, including that a permanent residential placement be found for J, despite his mother’s wish to have him home. The management of J’s risk at home by his mother alone, was assessed as difficult.
[61] As one would expect with a clinical assessment, the medical history described is contained in previous clinical reports and does not form part of J’s “treatment”. The behaviour management plan addresses clinically observed risks but unlike the
56 Objection is taken to the qualifications of the author of the Dual Disability Services report, Mr Bezuidenhout, by J’s counsel.
“protected communications” to the treating psychiatrist in R v D, the information relied on by Dr Sinclair came from previous assessments, diagnoses and reviews. The behaviour management plans, ongoing programming and reviews form part of the clinical management of J at specific institutions.
[62] The circumstances surrounding the use of Dr Sinclair’s report also militate away against the maintenance of privilege in the report for these reasons:
(a)The report was provided to Tanya Breen, a consultant clinical psychologist, who was directed to comment on Dr Sinclair’s report for the purposes of the District Court, when determining the appropriate disposition for J.
(b)From the correspondence between the Crown solicitor and J’s then counsel, it appears that J’s counsel wished to rely on Dr Sinclair’s report at the hearing and the Crown solicitor sought disclosure of the report.
(c)In a brief of evidence from the Compulsory Care Coordinator, Mr Tenari, it appears that J’s mother and a support person from Justice Action Group, Mr Burgering, wanted a second opinion on where J would be best placed and sought Dr Sinclair’s assessment to determine this.
[63] I accept the Crown’s submission that it is difficult to maintain privilege in Dr Sinclair’s report, when it was made available to the Court; was subject to comment from Tanya Breen; was completed with the cooperation of J’s mother and J’s caregivers; and was relied on by J’s counsel. These circumstances strongly indicate that any privilege or protection under s 33 even if it had existed, had been waived.
Dr Duff ’s report
[64] Dr Duff is a consultant psychiatrist with the Intellectual Disabilities Offender Liaison Service (IDOLS), being part of a team from the Mason Clinic. Dr Duff reviewed J and his medication on a regular basis between March and May 2005. Dr Duff undertook her consultations in the presence of J’s mother and met with Tanya
Breen in conjunction with the other members of the IDOLS team from the Mason Clinic. Dr Duff wrote two letters to the presiding Judge at the Manukau District Court on 16 and 30 May 2005 respectively, addressing the options of disposition under the IDCCR Act, particularly in relation to any potential hospital level orders and possible transition to the High Care Unit in the Mason Clinic.
[65] Dr Ellis submits that Dr Duff’s letters to the District Court Judge contain information obtained from her “treatment role” and such information derived from a clinical file, “to the detriment of a patient should not be given to the Judge by treating physicians without consent”. Dr Ellis submits J’s consent is not recorded. Dr Ellis also expresses concern that a “bundle of reports from Dr Duff”, including her earlier reports to J’s GP and weekly clinical reviews, appear to have been placed on the District Court file.
[66] Dr Duff wrote two letters to the District Court dated 16 and 30 May 2005 respectively. No other documents were included with those letters on the Court file. The Crown has explained that any suggestion that other documents may have also been sent to the District Court, arose unfortunately as a result of the way in which the documents were discovered to J’s counsel. The documents were disclosed in a way that may have given rise to an impression that those documents were part of Dr Duff’s letters. The error was amended in the agreed bundle filed for this hearing, showing the letters as stand-alone documents.
[67] On a perusal of Dr Duff’s letters to the presiding District Court Judge, I have found no reference to attachments, as one would expect, if clinical records were being attached to a clinician’s letter.
[68] Dr Ellis is correct that Dr Duff’s letter to the Judge discloses that J suffers from severe autism and that any change to his routine increases the risk of assaultive behaviour towards staff. However, this is information that was already before the Court, in the disability hearing of 7 February 2005 before Judge Epati, in which he made the finding of J’s involvement in the offending and his unfitness to stand trial. Dr Duff was the clinician with an overview of J’s care, following J’s remand on bail.
[69] I accept the Crown’s submission, that in her letters, Dr Duff does not produce any confidential communications between her and J or between J and any other clinician. The letters inform the Court of potential issues arising, if disposition orders were to be made in a particular form. For example, her 16 May 2005 letter requests the Court to authorise Auckland Regional Intellectual Disability Services (RIDS) staff to make arrangements for J’s transport to Wellington. In her 30 May letter, Dr Duff asks the Court to defer making an order for one day, to enable Auckland RIDS to make arrangements for J’s transport to Wellington.
[70] I do not accept this is an instance of disclosure of a protected communication by a treating clinician but rather, advice to the Court on a disposition order, about the nature of the available facilities in Auckland and the transportation issues which would be authorised as a result.
[71] Although consent is not specifically addressed in Dr Duff’s letters, I note again that Dr Duff completed her clinical reviews and assessments in the presence of J’s mother. J’s mother, who has been J’s support person and caregiver for the events leading up to J’s offending in 2004 and is J’s welfare guardian, appears to be a constant presence throughout the medical assessments. Mr Burgering, from Justice Action Group, also provided assistance to J’s mother. The inference can readily be drawn from their respective involvement, that consent has been authorised on J’s behalf, in these circumstances.
[72] I do not find that there has been a breach of s 33(3), in the provision of Dr Duff’s letters to the Court.
Court-ordered reports of Dr Fernandez, Dr Burgess and Ms Breen
[73] J challenges the admissibility of the health assessor reports of Dr Fernandez, Dr Burgess and Ms Breen, as they have referred to or taken information from Dr Sinclair’s risk assessment and Dr Duff. By relying on J’s treatment records, Dr Ellis submits these reports all breach s 33(3) of the EAA and are inadmissible.
[74] The starting point for an analysis of admissibility is the purpose of s 33 of the EAA. The Court of Appeal in R v D reinforced that the policy of s 33 of the EAA “is
to encourage people to seek treatment which is very much in the public interest.”57 In R v D, the psychiatrist was treating D. D’s communications with the psychiatrist over the period before the psychiatrist prepared a Court report, were held to be “protected communications”, “as they were made by D believing that the communication was necessary for his treatment.”58
[75] The position is quite different here. I am unable to uphold J’s challenge to the admissibility of the above court-ordered health assessor reports for the following three reasons.
[76] First, the reports of Dr Fernandez and Dr Burgess were prepared for the purpose of determining whether J was fit to stand trial, as directed by the Court.59 Ms Breen’s report was prepared for the purpose of determining the appropriate disposition for J, pursuant to a s 23 CPMIP Act order.60 These reports are covered by the proviso in s 33 EAA, as they were court ordered. The proviso, under s 33(3) of the EAA, provides that a protected communication:
… does not include any communication made to a medical practitioner or a clinical psychologist by any person who has been required by any order of a Court, or by any person having lawful authority to make such requirement, to submit himself or herself to the medical practitioner or clinical psychologist for any examination, test or other purpose.
[77] The above proviso means that anything discussed in the course of any examination by a court-ordered report-writing clinician is not privileged. All of the reports and evidence of Dr Fernandez, Dr Burgess and Ms Breen come within this proviso to s 33. The Court ordered those reports, including that of Ms Breen, to complete an assessment of J under Part 3 of the IDCCR Act, prior to any compulsory care order being made.
[78] I accept the Crown’s submission that all of the other material filed with the District Court, related to J’s court ordered IDCCR Act assessment, which would also be covered by the proviso in s 33(3) EAA.
57 R v D, above n 52, at [45]. Section 33 EAA has a corresponding section in the Evidence Act 2006 at s 69.
58 At [44].
59 Criminal Procedure (Mentally Impaired Persons) Act 2003, ss 14(1) and 38).
60 Sections 23(1), 24(1)(b), 25(2) and 38.
[79] Second, there has been no identifiable protected communications from J to the medical practitioners or clinical psychologists. Even if the historic medical records contained “disclosure” of a protected communication, these were not material to the various health assessors’ conclusions. This was the conclusion reached by Clifford J in T v Police, where he held that there was no explicit reference to or discussion of therapeutic material contained in the report.61 In J’s case, the reports focus on J’s clinical history as well as the assessment reports completed by various health professionals. J’s previous clinical record forms part of the longitudinal assessment by a health assessor, which is proper clinical practice, particularly as the health assessor is required both by statute and by the Court, to present a professional assessment of J. Risk assessment forms a critical part of the CPMIP Act report process and longitudinal clinical data is essential to such an assessment.62
[80] Finally, there is no evidence which suggests that J believed a communication with a medical practitioner or clinical psychologist was necessary to enable them to examine, treat or act for him. There was no intention by J to seek treatment or provide a communication to assist that purpose. I have noted the remark by Dr Burgess, where in advising J of the purpose of the assessment and the limits of confidentiality, J responded that he thought the purpose of this assessment was to help him “get better”. Dr Burgess recorded this response, noting that in his view, J lacked the capacity to fully understand the purpose of the assessment. In light of J’s inability to understand the consequences of his behaviour, I do not place any weight on that response. Importantly, there is no identification in any report of a protected communication made by J, for the purpose of his seeking treatment.
Conclusion on s 33 EAA
[81]I find that:
(a)the privilege in s 33 does not apply to any part of the reports prepared for the Court, namely those of Dr Fernandez, Dr Burgess and Ms Breen;
61 T v Police HC Wellington CRI-2007-485-37, 17 March 2009 at [268].
62 See Dr Judson’s evidence under Part 3 of this decision, at [373].
(b)the report of Dr Sinclair was made available to the Court and was relied on by J’s counsel. J’s claim for privilege is inconsistent with his counsel’s reliance upon it and its disclosure; and
(c)Dr Duff’s letters to the District Court did not contain protected communications and were not privileged. They provided the Court with information about the impact of any future order the Court might make.
[82] For completeness, I record that submissions were also made by the Crown that the s 14 CPMIP Act unfitness hearing was not part of a “criminal proceeding,” as s 33(1) of the EAA requires. The Crown also submitted the s 25(1)(b) CPMIP Act disposition decision was not part of a “criminal proceeding” and therefore s 33 of the EAA did not apply to the medical reports provided for that. In light of the findings I have made above, the issue of whether s 14 unfitness hearings or disposition hearings under ss 24 and 25 of the CPMIP Act are “criminal proceedings” is not determinative in this hearing and it is not necessary to make such a finding.63 I do, however, note that in RIDCA Central v VM the Court of Appeal described the CPMIP Act as “criminal justice legislation”.64
[83]I now turn to consider the other grounds of appeal.
Grounds of appeal
Ground 1 – misleading medical evidence
[84] Dr Ellis submits that the health professionals created a fictional or mythological profile of J, that was so prejudicial as to cause a miscarriage of justice. At the heart of this ground of appeal is the allegation that J has falsely been labelled as:
63 I do note, however, that once a defendant is found unfit to stand trial under s 14 of the CPMIP Act, the ordinary criminal trial process ceases and a decision is made as to alternative disposition under ss 24, 25 or 27 of the CPMIP Act.
64 RIDCA Central (Regional Intellectual Disability Care Agency) v VM [2011] NZCA 659, [2012] 1 NZLR 641 at [66(a)].
(a)J is a paedophile and has bizarre sexual fantasies;
(b)being an extremely high risk of physical violence and offending against children with catastrophic outcomes (i.e. J is supposed to be capable of killing a child); and
(c)being an extremely high risk of arson offending.
[85] The essence of J’s challenge is that these labels have built a seriously biased and inaccurate pejorative picture of J which has led to unfair hearings and a miscarriage of justice.
[86] The question of relevance to this appeal, is whether any of the alleged inaccuracies misled the District Court in making the finding of J’s unfitness to stand trial or at the disposition stage of the proceedings.
[87] Dealing then with each of the alleged inaccuracies, the following should be placed in context.
(a)Sexual violence risk against children
[88] Dr Ellis has highlighted a number of references by the health professionals to J’s sexual fantasies about young pre-pubescent girls and boys and offending against children. While there are numerous references to J’s impulses to sniff feet of young girls as well as other residents in the group home, Ms Breen, in preparing her risk assessment for the Court in 2005, recorded the conflicting reports of J’s sexual history and reached no conclusion as to J’s risk of sexually motivated violence.
[89] Although noting the views of other health professionals that there may be a sexual component to J’s physical aggression, Ms Breen recorded that J’s mother and a Solway Trust employee could not recall instances of J’s sexual interest, sexual arousal or masturbation. Ms Breen herself attempted to assess J’s sexual knowledge and interest but as she recorded, J was tired and, although cooperative, he was echolalic, highly suggestable and further interview was deemed inappropriate. Ms Breen recorded J’s interest in feet and despite others’ growing concern that J’s foot fantasies
may be linked to his sexuality, Ms Breen recorded that those foot fantasies in his drawings or pictures, often involved force, weapons and restraint.
[90] I accept the Crown’s submission that Ms Breen was advising the Court of J’s observed behaviours in her risk assessment and that no conclusive view on J’s risk of sexual violence could be or was reached.
(b)Physical violence risk
[91] Ms Breen reported in her 4 March 2005 risk assessment, that J’s first contact with the police occurred in 2000 “after he tied up a fellow student (female), and wounded the neck and throat (requiring plastic surgery) of a female student at Sir Keith Park School.” J’s mother brought to Ms Breen’s attention that her record of events was incorrect.
[92] Ms Breen checked with the Care Coordinator, Mr Tenari, who had sent the information by way of email. After making further enquiries of the deputy principal of the school, Ms Breen subsequently reported to the Court on 12 May 2005, that J did not tie the student up but on returning to the playground, cut the back of the neck of the female student. The student was taken to hospital by ambulance and needed stitches before returning to school several days later. In her subsequent report of 12 May 2005, Ms Breen thus corrected the previous information and restated her view on J’s disposition. Following the information from the deputy principal, Ms Breen stated that it:
reinforces my belief that [J] can engage in behaviour of a very serious nature, with no apparent triggering events, and that he has no appreciation for the harm that he might cause.
[93] She concluded further, that her previous view that J should receive “community secure” care or “hospital secure” care, if the former was not available, was still her assessment.
(c)Arson risk
[94] A consult liaison nurse, Mr Nicholls, had recorded in a letter that J must be considered to be at an extremely high risk of arson. The letter in which the comment
was made was not before the District Court. Ms Breen took into account Mr Nicholls’ letter in preparing her risk assessment of J but did not uphold the suggestion or make any equivalent suggestion that arson was an extremely high risk factor for J. Instead, she focused on J’s drawings and conversations in which he had expressed “strong interests in physical violence to people and property, fire setting, and using guns to kill people” and recommended that J be housed in a “damage-resistant” and “fire- safe/arson-proof” physical environment.
[95] The focus of Ms Breen’s recommendations are on J’s physical aggression, his interest in re-enacting violent movie or television scenes and sniffing feet.
[96] Dr Fernandez and Dr Burgess also identified that J had an interest in fires and explosions, although their observations on this point were limited.
Discussion
[97] Turning then to the District Court findings under appeal, the question arises whether any of the allegations of inaccuracy impacted on the District Court findings.
[98] The District Court’s finding under s 9 of the CPMIP Act as to J’s involvement in the offending is not affected by J’s challenge to the accuracy of the health assessor evidence. The summary of facts and evidence given (by way of prepared witness statements) were sufficient to establish J’s involvement in the offending. From the records still available, it appears that the prosecution did not introduce or need medical evidence to prove J’s involvement in the offence. The alleged inaccuracies did not impact the District Court’s s 9 CPMIP Act finding.
[99] In relation to the District Court’s finding under s 14 of the CPMIP Act as to J’s unfitness to stand trial, the Court had ordered and considered health assessor reports from Drs Burgess and Fernandez in making this decision. However, the alleged inaccuracies did not impact the District Court’s finding under s 14 because both of
these reports supported a conclusion J was unfit to stand trial because of a mental impairment.65
[100] The alleged inaccuracies were, however, potentially relevant to the District Court’s disposition hearing and order under s 25(1)(b) of the CPMIP Act to determine what order was appropriate for J under that Act. At the time of selecting the appropriate level of care for J, J’s current risk and history of behaviour were relevant to the Court’s decision and properly formed the focus of the Judge’s consideration.
362 Concluding observations, above n 358, at [33].
363 Office for Disability Issues Government response to the United Nations Committee on the Rights of Persons with Disabilities’ Concluding Observations on New Zealand (Ministry of Social Development, June 2015) at [21].
364 Committee on the Rights of Persons with Disabilities Views adopted by the Committee under article 5 of the Optional Protocol, concerning communication No. 7/2012 (Noble v Australia) CRPD/C/16/D/7/2012 (2016)
[567] The Committee was concerned that Mr Noble’s detention was primarily decided on the basis of the State’s assessment of the potential consequences of his disability. In the absence of any criminal conviction, this converted his disability into the core cause of his detention, which violated art 14(1) of the CRPD, as Mr Noble’s disability was the justification for depriving his liberty.
Discussion
[568] Although the United Nations Committee on the Rights of Persons with Disabilities cases provide further support for the right of persons to be free from discrimination, New Zealand has its own framework for determining whether discrimination on the grounds of intellectual disability exists. This framework, and the New Zealand decisions applying it, dictate the success or otherwise of J’s claim and are the primary focus of this Court’s decision.
[569] As Dr Ellis acknowledges, there is a difference in the rhetoric and recommendations espoused by the different United Nations Committees. This can make it difficult to interpret New Zealand legislation consistent with international obligations, when even the international bodies are not consistent about what is required from states.
[570] Despite the international discourse, the CPMIP Act and IDCCR Act schemes are express legislation in New Zealand. The Court of Appeal’s reasoning in Ruka applies equally to these Acts. Parliament is sovereign and the judicial function is limited to interpretation of the laws passed by Parliament. The courts cannot refuse to apply a parliamentary process, regardless of whether it is discriminatory or not.
[571] Even when determining whether the process is discriminatory under the appropriate NZBORA analysis, it is difficult to find that the CPMIP Act and IDCCR Act schemes produce a result which materially disadvantages those subject to it, or which cannot be demonstrably justified. These schemes are in place to support those with intellectual disabilities charged with criminal offences, to ensure they are not treated inappropriately. To treat the intellectually disabled as though they were fit to stand trial has been both harmful and unfair in the past. The New Zealand disability
legislation was a response to the harsh and inappropriate treatment of the intellectually disabled in the criminal justice system.
Conclusion
[572]On the review ground of discrimination, I find:
(a)The CPMIP and IDCCR Acts are express legislation in New Zealand, enacted to fill a legislative gap, to provide compulsory care orders for the intellectually disabled, who have been charged with criminal offences. This Court cannot decline to apply those Acts or deem any provision of those Acts ineffective.365
(b)The IDCCR Act provides a protective scheme, not a punitive one, for intellectually disabled care recipients, who are diverted from the criminal justice system. The limits prescribed under those two Acts are both reasonably and demonstrably justified under s 5 of the NZBORA.
(c)J has not been materially disadvantaged by the process under the CPMIP Act of being found unfit to stand trial or being made a care recipient and treated under the IDCCR Act.
(d)I find that the CPMIP and IDCCR Acts have not limited J’s rights unjustifiably and J’s treatment under those Acts has been undertaken lawfully.
[573]I decline the declaratory relief as sought.
Errors of law
[574] In J’s amended statement of claim, J seeks relief for his “arbitrary detention” under the review ground of errors of law because J was not detained by RIDCA and/or RIDSAS, as ordered by the District Court. This issue was addressed by Collins J in his judgment dated 11 April 2017, where his Honour held that the original District
365 S, above n 10, at [446]; and New Zealand Bill of Rights Act 1990, s 4.
Court order of 8 February 2006 was technically incorrect, because it referred to RICDA and/or RIDSAS rather than the Care Coordinator and Care Manager.366 He found, however, this error was insufficient to invalidate the order.367
[575] Similarly, J alleges the District Court erred in law by issuing the original order dated 8 February 2006 detaining J and by issuing the replacement order on 10 January 2017. Collins J has already found the original and amended orders issued under the CPMIP Act were lawful.368 J pleads under this ground of review that the replacement warrants issued by the District Court were unlawful.
Conclusion
[576] This ground has already been determined by Collins J. This claim is res judicata and is hereby dismissed.369
Overlapping causes of action
[577] The following causes of action overlap or align with the arguments raised in the CPMIP appeal by J. I deal with each of those causes of action, which Dr Ellis submits remain live in the amended judicial review proceedings.
Cause of action nine – breach of s 9 NZBORA
[578] The basis of this ground of review is that the totality of the treatment or punishment given to J was a breach of s 9 of NZBORA, in that it was disproportionately severe treatment, or if not, a breach of s 23(5). A declaration is sought to this effect.
[579] Section 9 of NZBORA guarantees everyone the right not to be subjected to torture or to cruel, degrading, or disproportionately severe treatment or punishment. The Supreme Court in Taunoa describes s 9 of NZBORA as “reserved for truly
366 J, above n 3.
367 At [65]–[68].
368 At [49]–[72] and [117].
369 Contact Energy Ltd v Attorney-General [2009] NZCA 351 at [71].
egregious cases”,370 involving official conduct “which is to be utterly condemned as outrageous and unacceptable in any circumstances”.371
[580] On Tipping J’s analysis in Taunoa, conduct breaching s 9 will usually involve an intention to harm or act with consciously reckless indifference to the causing of harm, as well as significant physical or mental suffering.372
[581] Of the various limbs of s 9 which were described by the Supreme Court in Taunoa, the most relevant is disproportionately severe treatment. The Supreme Court describes this as being conduct so severe it shocks the national conscience, or so disproportionate it causes shock and revulsion. It is the standard well beyond even manifestly excessive treatment.373
[582]J’s claim comprises two pleaded facts:
(a)the fact of J’s detention under the 2006 District Court order; and
(b)the alleged detention in a secure rather than a supervised facility.
[583] J became a care recipient under the IDCCR Act, not as a punishment, but because he was charged with a criminal offence and was found unfit to stand trial under the CPMIP Act. Collins J addressed this issue in his judgment dated 11 April 2017, where he described J’s gateway to the IDCCR Act as criminal offending.374 However, the IDCCR Act scheme and process involves a civil not criminal scheme.
[584] On the evidence before me, J’s claim has no basis. J’s detention under the 2006 court order was appropriate, lawful and no miscarriage of justice occurred, as I have earlier found.375 J’s detention in a secure facility is not degrading or disproportionately severe treatment because his risk requires this level of care at present, as earlier discussed.376
370 Taunoa v Attorney-General [2007] NZSC 70, [2008] 1 NZLR 429 at [297].
371 At [170] (per Blanchard J) and [339]–[340] (per McGrath J).
372 At [295].
373 At [172] (per Blanchard J) and [289] (per Tipping J).
374 J, above n 3, at [7]–[9].
375 At [153] of this judgment.
376 At [423]–[429] of this judgment.
Treatment is not disproportionately severe
[585] J seeks a declaration to the effect that the totality of the treatment he has received, breaches s 9 of NZBORA, because it is disproportionately severe treatment, or, a breach of s 23(5). It is submitted that it would shock the nation’s conscience for a person to be detained for 12 years in J’s current circumstances. This claim and submission again equates the period of detention to the original offending.
[586] As I have already found, J’s index offending does not provide an accurate guide to the level of risk posed by J.377 I have referred to the Court of Appeal’s guidance and the relevance of the proportionality of the period of detention to the original offending. I have also found that Judge Goodwin in the Family Court, correctly applying the guidelines of RIDCA,378 has addressed whether J’s detention is “disproportionate” and found J poses a high risk to others, which far outweighs his interest in liberty.379
[587] After balancing the community’s interest in protecting the safety of J and others against J’s interest in liberty, Judge Goodwin concluded:380
… this has not been a finely balanced matter. This is a case where [J’s] original minor nature of offending did not provide an accurate guide to the level or risk that he poses, as set out in the reports and oral evidence of the specialist assessors.
[588] In this Court’s inquiry under s 102 of the IDCCR Act, I also found that J’s risk requires his continued care as a care recipient.381
Conclusion
[589] J has not received disproportionately severe treatment as a care recipient under the IDCCR Act or been treated in a way that deliberately inflicts suffering or constitutes any cruel or degrading treatment. There has been no breach of s 9 of NZBORA.
377 At [408]–[412] of this judgment.
378 RIDCA, above n 64.
379 See discussion on RIDCA and disproportionality.
380 Goodwin decision, above n 95, at [108].
381 At [423]–[429] of this judgment.
Cause of action 11 – Breach of s 23(5) NZBORA
[590] In the alternative, J alleges that his treatment, even if it falls short of s 9 NZBORA, nonetheless breaches s 23(5) and he seeks a declaration against the Attorney-General to that effect.
[591] Section 23(5) provides that “Everyone deprived of liberty shall be treated with humanity and with respect for the inherent dignity of the person.”
[592] In Taunoa, the Supreme Court described the conduct covered by s 23(5) as conduct that:382
… lacks humanity, but falls short of being cruel; which demeans the person, but not to an extent which is degrading; or which is clearly excessive in the circumstances, but not grossly so.
[593] As the Court cautioned in Toia v Prison Manager, when deciding whether s 23(5) has been breached, the Court must consider the duration and severity of the conduct, vulnerability of the detainee, whether the detainee contributed to the conduct and the impact of the conduct on the detainee.383 In this case, the challenge under s 23(5) relates to the conditions of detention, not the fact of being detained.
[594] Focusing then on the treatment of J throughout his detention, I refer again to the IDCCR Act and its provisions, which require the Care Coordinator to direct where J resides and ensure J received care and rehabilitation in accordance with his care and rehabilitation plan.384 Again, as I have already canvassed, the care and rehabilitation plan is tailored to the individual care recipient.385
[595] As raised in other parts of this decision, J’s plans have been reviewed by the Family Court every six months.386 At the February 2017 review, Dr Webb, giving evidence at that hearing, identified shortcomings in J’s care, in that his plans were not tailored to meet his autism. As was appropriate, the care plans were varied to
382 Taunoa, above n 370, at [177] per Blanchard J.
383 Toia v Prison Manager [2015] NZCA 624 at [30]–[32] and [36].
384 Intellectual Disability (Compulsory Care and Rehabilitation) Act, ss 47 and 63–64.
385 At [488]–[491] of this judgment.
386 See Appendix 1 of this judgment.
accommodate these concerns and the Judge specifically addressed them in his judgment, as already described.
[596] Similarly, the change in J’s status from secure to supervised care in 2011 was to facilitate contact with his mother outside the residential care setting. The Care Coordinator intended that J would remain living where he was and that appropriate staff for his level of risk would continue to be provided to him, but the change in status was sought to assist J in visiting his mother at home. As it transpires, such a change was not necessary to facilitate these visits.
[597] I do not consider there is any evidence that J was treated without dignity or with a lack of humanity. It is correct that concerns were raised about J being isolated, because of his risk and his behaviours but the legislative procedures in place for review of J’s continued detention and rehabilitation plans ensured that J was treated more appropriately and specifically for his autism as well as his risks.
Conclusion
[598] I am unable to uphold that there has been a breach of s 23(5) NZBORA. Relief is also declined.
Cause of action 14 and 13 – Stay of proceedings and compensation
[599] As the findings for each of the proceedings reinforce, J’s detention was lawful, not arbitrary, and was authorised by judicial decisions under the CPMIP and IDCCR Acts. For the reasons already canvassed under each of these proceedings, J’s orders were made after a careful assessment of J’s intellectual disability, J’s ongoing risk and the care and rehabilitation plans which were reviewed by the Court.
[600] In light of my findings, relief by way of damages (compensatory or exemplary), declaratory relief and a stay of proceedings is declined.
Destruction of the criminal court file
[601] J challenges the District Court’s destruction of the District Court criminal file, as a result of his appeal out of time, of the findings in the District Court in 2005 and 2006.
[602] The District Court file appears to have been destroyed in 2016. J challenges the District Court’s destruction of the file in this judicial review, alleging that such actions are high handed, contumacious, an abuse of power and are deserving of punishment by means of exemplary damages or compensation.
[603]Section 184 of the Criminal Procedure Act 2011 provides:
184 Permanent court record
(1)Courts conducting criminal proceedings must continue to maintain a permanent court record of the formal steps in those proceedings.
(2)Courts must maintain the permanent court record in accordance with rules of court.
(3)The permanent court record is, subject to the power of the court to amend it, conclusive evidence of the matters recorded in it.
[604] The Crown submits that the Court file was destroyed lawfully, as the Court has maintained J’s Court record in accordance with law. The Crown observes that the District Court was required to maintain a Criminal Record of J’s charges under s 71 of the Summary Proceedings Act 1957. That record was maintained in the form required by Form 22 of the Summary Proceedings Regulations 1958. This was provided by way of exhibits to Philip Clarke’s affidavit sworn 19 June 2017.
[605] The Crown says further, that Form 22 required the Criminal Record to show the District Court, the person charged, the Court number, the hearing date, the prosecutor, the full name and address of the defendant, the plea, the decision and the offence. The Crown says the Summary Proceedings Regulations did not require the District Court to preserve a person’s full criminal file.
[606] Section 184 of the Criminal Procedure Act replaced s 71 of the Summary Proceedings Act.387 Section 184 came into effect on 1 July 2013 and requires the Court to maintain a permanent Court record of the formal steps in criminal proceedings.388 I accept the Crown’s submission that the Criminal Procedure Act, like the previous Summary Proceedings Act, does not require the Court to maintain a person’s full criminal file, but the permanent Court record must show all formal steps of a proceeding.389
[607] The Crown submits and I accept that the District Court, like all public offices, can dispose of its records with the authority of the chief archivist, as provided under s 18(1) of the Public Records Act 2005. The Crown advises that the District Court’s practice is to maintain a full file of a criminal proceeding for 10 years after closure of the file and then destroy it. As Mr Clarke deposes, the chief archivist has authorised the District Court to follow this practice.
Conclusion
[608] I am unable to uphold J’s cause of action in respect of the destruction of the Court file, as its destruction was lawful. Nor can I uphold the claim that the actions of the District Court were high-handed, contumacious or an abuse of power. The claim for exemplary damages and/or compensation is dismissed.
Conclusion on judicial review
[609] None of the grounds of review pleaded by J are made out. J’s judicial review claim is unsuccessful.
[610] For the sake of completeness, to the extent that I did not consider any of counsels’ other submissions, I did not consider they were relevant to the ultimate outcome.
387 Summary of Proceedings Amendment Act (No 2) 2011, s 7(2).
388 Criminal Procedure Act Commencement Order 2013, cl 2.
389 Criminal Procedure Rules 2012, r 7.2.
SUMMARY OF CONCLUSIONS
Part 1 – The CPMIP Appeal
[611] There has been no miscarriage of justice in J’s case and I am satisfied that the findings of his involvement in the offence, his unfitness to stand trial, his mental impairment and the ultimate disposition in an IDCCR Act secure facility were safe and are valid findings.
[612] It is not in the interests of justice to reopen these summary criminal proceedings against J 12 years later or to grant J leave to appeal out of time. J is not prejudiced by his leave to appeal being declined, as he may challenge his continuing care orders through opposing extension applications and by appealing adverse Family Court findings, which he has done in this hearing, together with an application for an inquiry under s 102 of the IDCCR Act.
[613] Even if leave were to be granted, which I do not grant, J’s appeal grounds lack merit and his appeal would be dismissed.
[614]Leave to appeal out of time is declined.
Part 2 – Family Court Appeal
[615] The Judge did not err in interpreting and applying the law or in assessing the evidence of the specialist assessors. The Judge carefully considered the evidence before him, as well as J’s particular circumstances, and correctly assessed that J’s compulsory care order should be extended and varied. The Judge was alive to the issues with J’s ongoing care, checked with the liaison District Inspector and took those matters into account in his assessment.
[616]The Family Court appeal is dismissed.
Part 3 – High Court inquiry under section 102 IDCCR Act
[617] I am satisfied that J is not detained illegally as a care recipient, as he does have an intellectual disability. I am further satisfied that J needs to be cared for as a care
recipient, under a compulsory care order at a secure level of care, given J’s risk, which is considered to be within the high, to very high range, and constitutes a significant and ongoing risk to the public.
Part 4 – Judicial review proceedings
[618] The judicial review is unsuccessful as none of the grounds of review are made out.
Conclusion on arbitrary detention
[619]J’s detention, although prolonged, is not arbitrary:
(a)J’s detention is lawful under the CPMIP Act and the IDCCR Act. J’s detention is based on his risk to himself and others, as well as his need for treatment and rehabilitation because of his intellectual disability.
(b)J’s risk has been measured and assessed by a number of specialist health practitioners, who all affirm the need for J to remain in secure compulsory care, because of the risk to himself and others.
(c)The conditions in which J was held, prior to the variation on his case order in February 2017 did not render J’s detention unlawful.
(d)J’s detention is not disproportionate and is justified for purposes which align with the principles discussed in the international and New Zealand cases.390 This review ground is dismissed.
[620] In addition, the three safeguards built into the New Zealand IDCCR legislation, mitigate against the risk of arbitrary detention. They are:
(a)legislative requirements for six monthly reviews of compulsory care orders;
390 Neilsen, above n 251; Zaoui, above n 252; Miller, above n 253; Rameka, above n 261; and Fardon, above n 262.
(b)care orders are time limited and individually focussed; and
(c)District Inspector monitoring and oversight.
Conclusion on discrimination
[621]On the review ground of discrimination, I find:
(a)The CPMIP and IDCCR Acts are express legislation in New Zealand, enacted to fill a legislative gap, to provide compulsory care orders for the intellectually disabled, who have been charged with criminal offences. This Court cannot decline to apply those Acts or deem any provision of those Acts ineffective.391
(b)The IDCCR Act provides a protective scheme, not a punitive one, for intellectually disabled care recipients, who are diverted from the criminal justice system. The limits prescribed under those two Acts are both reasonably and demonstrably justified under s 5 of the NZBORA.
(c)J has not been materially disadvantaged by the process under the CPMIP Act of being found unfit to stand trial or being made a care recipient and treated under the IDCCR Act.
(d)I find that the CPMIP and IDCCR Acts have not limited J’s rights unjustifiably and J’s treatment under those Acts has been undertaken lawfully.
(e)I decline the declaratory relief as sought.
Conclusion on errors of law
[622] This ground has already been determined by Collins J. This claim is res judicata and is hereby dismissed.
391 S, above n 10, at [446]; and New Zealand Bill of Rights Act 1990 s 4.
Conclusion on overlapping causes of action
[623] In relation to the causes of action which overlap or align with the arguments J raised in the CPMIP appeal, I find:
(a)There has been no breach of s 9 of NZBORA as J has not received disproportionately severe treatment or been treated in a way that deliberately inflicts suffering or constitutes any cruel or degrading treatment.
(b)There has been no breach of s 23(5) of NZBORA and relief is also declined.
(c)In light of my findings, relief by way of damages (compensatory or exemplary), declaratory relief and a stay of proceedings is declined.
(d)I am unable to uphold J’s cause of action in respect of the destruction of the Court file, as its destruction was lawful. Nor can I uphold the claim that the actions of the District Court were high-handed and contumacious and an abuse of power. The claim for exemplary damages and/or compensation is dismissed.
Cull J
Appendix 1 - Chronology
Date Step/Order Duration 8 Feb 2006 CPMIP order /
Oral judgement of Judge Kerr (s 25(1)(b) disposition)
2 years 8 Feb 2008 J moves to TRT residence in Chapel Downs, Manukau 18 Jul 2006 Report on appropriateness of compulsory care order and care and rehabilitation plan – s 72 IDCCR Act 27 Nov 2006 Review by Family Court of compulsory care order and care and rehabilitation plan 1 Aug 2007 J moves to Pohutukawa Unit, Mason Clinic 4 Feb 2008 Specialist assessor’s review and certificate 4 Feb 2008 Application to extend compulsory care order and defer expiry – ss 85 and 87 IDCCR Act 4 Feb 2008 Deferral of expiry Until application considered 30 Apr 2008 Extension Six months 28 Jun 2008 Specialist assessor’s review and certificate 11 Jul 2008 Report on appropriateness of compulsory care order and care and rehabilitation plan – s 72 IDCCR Act 20 Oct 2008 Specialist assessor’s review and certificate 29 Oct 2008 Report on appropriateness of compulsory care order and care and rehabilitation plan – s 72 IDCCR Act 29 Oct 2008 Application to extend compulsory care order and defer expiry – ss 85 and 87 IDCCR Act 29 Oct 2008 Deferral Until further order 28 Jan 2009 Extension 6 months 24 Mar 2009 Specialist assessor’s review and certificate 30 Mar 2009 Report on appropriateness of compulsory care order and care and rehabilitation plan – s 72 IDCCR Act 10 Jul 2009 Specialist assessor’s review and certificate 16 Jul 2009 Report on appropriateness of compulsory care order and care and rehabilitation plan – s 72 IDCCR Act 16 Jul 2009 Application to extend compulsory care order – s 85 IDCCR Act
Date Step/Order Duration 27 Jul 2009 Extension 12 months 29 Jan 2010 Specialist assessor’s review and certificate 2 Feb 2010 Report on appropriateness of compulsory care order and care and rehabilitation plan – s 72 IDCCR Act 8 Jul 2010 Specialist assessor’s review and certificate 19 Jul 2010 Report on appropriateness of compulsory care order and care and rehabilitation plan – s 72 IDCCR Act 19 Jul 2010 Application to extend compulsory care order and defer expiry – ss 85 and 87 IDCCR Act 19 Jul 2010 Deferral 3 months 6 Oct 2010 Extension 2 years 4 April 2011 Specialist assessor’s review and certificate 6 April 2011 Report on appropriateness of compulsory care order and care and rehabilitation plan – s 72 IDCCR Act 17 May 2011 J moves to TRT Motuhake Whare, Mangere (his current residence) 20 July 2011 Family Court review of appropriateness of compulsory care order and care and rehabilitation plan 30 Sep 2011 Specialist assessor’s review and certificate 6 Oct 2011 Report on appropriateness of compulsory care order and care and rehabilitation plan – s 72 IDCCR Act 6 Oct 2011 Application to vary compulsory order from secure to supervised care – s 86 IDCCR Act 5 Dec 2011 Compulsory care order varied from secure to supervised care 28 Sep 2012 Specialist assessor’s review and certificate 2 Oct 2012 Report on appropriateness of compulsory care order and care and rehabilitation plan – s 72 IDCCR Act 2 Oct 2012 Application to extend compulsory care order – ss 85 IDCCR Act 2 Oct 2012 Application to defer expiry of compulsory care order
– s 87 IDCCR Act
3 Oct 2012 Deferral 3 months 27 Nov 2012 Deferral 17 Dec 2012 Extension 2 years 7 Jun 2013 Specialist assessor’s review and certificate
Date Step/Order Duration 17 Jun 2013 Report on appropriateness of compulsory care order and care and rehabilitation plan – s 72 IDCCR Act 19 Sep 2013 Family Court Review of compulsory care order and care and rehabilitation plan 14 Dec 2014 Specialist assessor’s review and certificate 15 Dec 2014 Report on appropriateness of compulsory care order and care and rehabilitation plan – s 72 IDCCR Act 15 Dec 2014 Application to extend compulsory care order 15 Dec 2014 Application to defer expiry of compulsory care order
– s 87 IDCCR Act
17 Dec 2014 Deferral 4 months 13 Apr 2015 Extension 18 months 12 Oct 2015 Specialist assessor’s review and certificate 12 Oct 2015 Report on appropriateness of compulsory care order and care and rehabilitation plan – s 72 IDCCR Act 15 Sep 2016 Specialist assessor’s review and certificate 24 Sep 2016 Specialist assessor’s review and certificate 29 Sep 2016 Report on appropriateness of compulsory care order and care and rehabilitation plan – s 72 IDCCR Act 29 Sep 2016 Application to extend compulsory care order and defer expiry – ss 85 and 87 IDCCR Act 3 Oct 2016 Deferral 25 Nov 2016 Deferral 28 Feb 2017 Extension and variation to secure care 18 months
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