Kingi v Police

[2014] NZHC 2965

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

CRI 2014-419-0045 [2014] NZHC 2965

BETWEEN

KIRWAN KINGI

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	26 November 2014
Counsel:	A-M Beveridge for Appellant T Tran for Respondent
Judgment:	26 November 2014

(ORAL) JUDGMENT OF HEATH J

Solicitors:

Crown Solicitor, Hamilton
Counsel:

M-A Beveridge, Hamilton

KINGI v NEW ZEALAND POLICE [2014] NZHC 2965 [26 November 2014]

The appeal

[1]      Mr Kingi appeals against conviction and sentence following the entry of guilty pleas on two charges of offensive behaviour, one of being in breach of bail and one of theft.  The convictions were entered in the District Court at Hamilton, on 12

August 2014.  Mr Kingi was discharged on one of the offensive behaviour charges and fined $200 and Court costs on the other.  On the breach of bail charge, he was discharged.  On the theft charge, he was fined $200 and Court costs.

What happened?

[2]      Convictions were entered on guilty pleas and sentencing took place on 12

August 2014.  It appears that Judge Ruth was aware before the hearing that a report had  been  requested  under  s 38  of  the  Criminal  Procedure  (Mentally  Impaired Persons) Act 2003.   However, he cancelled that report.   Although Mr Kingi was represented by counsel at that hearing, it appears that the Judge was left to labour under a misapprehension that a report was no longer required and was not in the course of being prepared.

[3]      Subsequent to the hearing on 12 August 2014, Ms Beveridge was assigned to act as counsel for Mr Kingi, following the laying of a further charge of wilful damage.  During the course of her investigations, she discovered that the s 38 report had in fact been completed by Dr Peter Dean, a consultant psychiatrist.  The report is dated 12 September 2014.

[4]      Dr Dean opined that Mr Kingi was unfit to stand trial due to the effects of a psychotic disorder by which he is afflicted.   Dr Dean described Mr Kingi’s state when interviewed on 5 September 2014.  He said that Mr Kingi’s “thought process was grossly disorganised”; he was “vague and ambivalent”, was “unaware that he had entered guilty pleas to the charges” and “unable to understand the processes of the Court”.  Undoubtedly, had Judge Ruth had this information before him, he would not have accepted guilty pleas.

Should the appeal be allowed?

[5]      On Mr Kingi’s behalf, Ms Beveridge filed an appeal against convictions and sentence.   The first point I must consider involves the applicable principles on an appeal against conviction when entered in consequence of guilty pleas.  One of the leading authorities on that topic is R v Le Page.1   In that case, the Court of Appeal set out the categories of cases in which such appeals might be allowed.   Consistently with the rules for first appeals set out in s 232(2) of the Criminal Procedure Act

2011, a miscarriage of justice must be shown.   Le Page also makes it clear that “exceptional circumstances” must be demonstrated for an appeal to be allowed when a  defendant  has  been  represented  by  counsel  and  pleas  of  guilty  entered.    In delivering the judgment of the Court of Appeal, Panckhurst J said:

[16] Despite the understanding which Mr Le Page and his counsel ... had at the time the pleas were entered and at the time of sentencing, it is only in exceptional circumstances that an appeal against conviction will be entertained following entry of a plea of guilty. An appellant must show that a miscarriage of justice will result if his conviction is not overturned. Where the appellant fully appreciated the merits of his position, and made an informed decision to plead guilty, the conviction cannot be impugned. These principles find expression in numerous decisions of this Court, of which R v Stretch [1982] 1 NZLR 225 and R v Ripia [1985] 1 NZLR 122 are examples.

[17]  A  miscarriage  of  justice  will  be  indicated  in  at  least  three  broad situations which are identified and discussed in Adams on Criminal Law, para CA385.21. The first is where the appellant did not appreciate the nature of,  or did not intend to plead guilty  to,  a  particular  charge. These  are situations   where   the   plea   is   shown   to   be   vitiated   by   genuine misunderstanding or mistake. Where an accused is represented by counsel at the time a plea is entered, it may be difficult indeed to establish a vitiating element. It is not suggested the present case is in this category.

(Emphasis added)

[6]      Plainly, Mr Kingi falls within that category; namely, where an appellant did not appreciate the nature of or did not intend to plead guilty to a particular charge. Dr Dean’s findings support that view.  On his report, Mr Kingi lacked understanding of the nature and quality of his decision to plead guilty, even if he realised he had done so.   That is debateable in itself.   There is no doubt that the appeal against conviction must be allowed.

[7]      As  a  result,  what  should  happen?    Under  s 233(3)(e)  of  the  Criminal Procedure Act, the Court is empowered, in addition to setting aside the convictions, to “make any other order it considers that justice requires”.

[8]      In  my view, the proceeding should be remitted  to the District Court for further consideration.  Dr Dean’s s 38 report operates to trigger the procedures of the Criminal Procedure (Mentally Impaired Persons) Act with regard to defendants who are said to be unfit to stand trial.   The three stages of the relevant inquiry were summarised by the Court of Appeal in H(CA841/2012) v R2 as:

(a)      First, a hearing at which a Judge must determine whether the Crown has proved on a balance of probabilities that the offences were committed (s 9).

(b)Second, a hearing at which the Judge decides whether the defendant is unfit to stand trial (s 14).

(c)       Third, a disposition hearing (ss 24 and 25).

Result

[9]      For those reasons, Mr Kingi’s appeals are allowed and the convictions and sentences imposed in consequence are set aside.   I make an order remitting each charge to the District Court for the purpose of undertaking the procedures mandated by the Criminal Procedure (Mentally Impaired Persons) Act.

[10]     I conclude by thanking Ms Beveridge for her commendable pursuit of an appeal in the circumstances disclosed.  Mr Kingi has much to thank her for.

P R Heath J