J v Police

[2022] NZHC 223

ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS,

OCCUPATION OR IDENTIFYING PARTICULARS OF APPELLANT PURSUANT TO S 200 CRIMINAL PROCEDURE ACT 2011. SEE

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE

CRI-2021-441-40 [2022] NZHC 223

BETWEEN

Mr J Appellant

AND

THE NEW ZEALAND POLICE

Respondent

On the Papers
Counsel:	E J Forster for the Appellant C R Stuart for the Respondent
Judgment:	18 February 2022

JUDGMENT OF GWYN J

[1]                 Counsel for the respondent has filed a memorandum dated 21 December 2021, which was put before me as Duty Judge.

[2]                 On 5 December 2018 the appellant, J, pleaded guilty to charges of indecent assault, indecent exposure, and unlawfully getting into a motor vehicle (the 2018 offending). He was given a first strike warning. On 22 March 2019 J was sentenced to community detention and intensive supervision.

[3]                 On 26 November 2021, the appellant filed an appeal against conviction on the grounds of counsel error, being failure to provide advice on a plea of not guilty based on legal insanity, under s 23 of the Crimes Act 1961 (the appeal).

J v THE NEW ZEALAND POLICE [2022] NZHC 223 [18 February 2022]

[4]                 Counsel advises that the genesis of the appeal was a 2021 charge against J of threatening to kill members of a Muslim mosque in April 2021. Forensic reports were obtained addressing his fitness to stand trial and the availability of an insanity defence. J was ultimately found not guilty by reason of insanity.

[5]                 Since the appeal was filed, appellant’s counsel has obtained further information from trial counsel who represented the appellant in the 2018 proceeding, an affidavit from the appellant’s mother  with  supporting evidence and a further  report  from  Dr Justin Barry-Walsh, a forensic psychiatrist, who has retrospectively assessed whether the defence of insanity would have been available to J for the 2018 offending.

[6]Dr Barry-Walsh’s report, dated 15 December 2021 states, in relevant part:

It can be stated with clinical certainty that at the time of the offending [J] was suffering from a disease [of] the mind. He has a psychotic illness and he required admission immediately afterwards. He was floridly disturbed at the point of admission. [J] struggled to give a clear description of his motivations but there is evidence he was incorporating at least one of the victims into his delusional state….. There are several pathways by which his serious mental illness may have driven the offending. His elevated mood is likely to have been associated with disinhibition and an increase in libido as evidenced by sexually disinhibited behaviour subsequently on the ward. He may have had delusional beliefs and psychotic experiences that were directing his behaviour and leading him to believe that the victims may have invited his actions. Finally, he was disorganised in his thoughts and thus his capacity to reason as the moral wrongfulness of his actions was decreased. For these reasons, noting the difficulties because of the elapse of time and that it is a decision for the Court to make, it would be my view that on balance [J] would have had a defence of insanity for these charges.

[7]                 Counsel for the respondent submits that there is an appreciable risk that at the time of the appellant’s guilty plea to the 2018 offending, a defence of insanity may have been available. It is clear from the material available that the possibility of such a defence was not brought to the attention of the appellant or the Court and that, if it had been, the necessary assessments under the Criminal Procedure (Mentally Impaired Persons) Act 2003 (CPMIP Act) would have been engaged.

[8]                 For those reasons the respondent submits there has been a miscarriage of justice, the appeal should be allowed and the matter remitted back to the District Court for further consideration under the CPMIP Act. Counsel suggest that another

psychiatric report may be appropriate to retrospectively assess whether a defence of insanity is available for the 2018 charges.

Result

[9]                 On the basis of the material before me and counsel’s submission I am satisfied that a miscarriage of justice has occurred. I allow the appeal. The matter is remitted back to the District Court for further consideration under the CPMIP Act.

Gwyn J

Solicitors:
Crown Solicitor, Napier

Copy to:
Mr Forster, Hastings