Latimer v Police HC Auckland CRI-2011-404-000015

[2011] NZHC 861

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2011-404-000015

BETWEEN  LEE TOA LATIMER Appellant

ANDNEW ZEALAND POLICE Respondent

Hearing:         30 May 2011

Appearances: P Heaslip for Appellant

F Cuncannon for Crown

Judgment:      21 June 2011 at 11:00 AM

JUDGMENT OF VENNING J

This judgment was delivered by me on 21 June 2011 at 11 am, pursuant to Rule 11.5 of the High

Court Rules.

Registrar/Deputy Registrar

Date……………

Solicitors:           Crown Solicitor, Auckland

Copy to:            Paul Heaslip Lawyer, PO Box 4108, Shortland Street, Auckland [email protected]

LATIMER V NEW ZEALAND POLICE HC AK CRI-2011-404-000015 21 June 2011

Introduction

[1]      On 9 December 2009, following a defended hearing in the District Court at Waitakere, the appellant was convicted of an indecent assault.  Judge Everitt entered the conviction and ordered the appellant to come up for sentence if called upon within nine months.

[2]      The appellant now appeals against conviction (and sentence) on the basis that at the time of the hearing there was an issue as to whether he was fit to plead and the correct procedure under the Criminal Procedure (Mentally Impaired Persons) Act

2003 (the Act) was not followed.  In the alternative it is submitted that the evidence did not support the finding he had committed an indecent assault.

Procedural matter

[3]      The appeal is substantially out of time.  However, Ms Cuncannon accepted that if there was merit in the appeal then leave ought to be granted.

Factual background

[4]      On  13  May  2009  the  complainant  visited  the  appellant’s  home.    The complainant was a mental health worker assigned to the appellant’s mother.   On entering the lounge she saw the appellant lying on a settee covered with blankets. After noting that the appellant’s mother was  asleep she decided to leave.   The complainant noticed the appellant looking at her strangely.  She asked him if he was alright.  The appellant then stood up and threw off the blankets.  He was naked.  He came towards her, and bumped his naked, upper body against her at the same time as calling her a “white nigger”.   The appellant bumped his upper torso against the complainant for a matter of seconds.   Although the accused was naked the complainant could see that he did not have a sexual erection at the time.

[5]      The  complainant  left  the  property  and  reported  the  matter.    When  the appellant was spoken to and arrested he said that a Japanese man had come to the

address, attempted to assault the complainant and that he had been there to protect her.

The process

[6]      The appellant was first before the Court on 14 May.  The information records the following notes were made at his appearances:

14 May 2009               R/Adj 11/6/09.  Def not well. Admitted Waiatarau

11 June 2009               Kovacevich

NG RMBR 26/8/09 1.N/A with compl.

26 August 2009           Mr Kovacevich

Forensic Nurses Report to assess fitness to plead and possibly canvass insanity defence.   BTC 10/9/9 10 am for further directions.

10 September 2009      Mr Kovacevich

Oral report from Mr Hutchinson – Forensic Nurse confirms fit to plead – but s 38 sentencing report

NG.  ESJ confirmed.

RBTC 9/12/9 def hrg..

[7]      The transcript from 10 September records a discussion between counsel, Mr Kovacevich and Judge Taumaunu and a report from the forensic nurse.  The nurse reported:

[The appellant] did have a history of contact with Medical Health Services, was admitted to Waiatarau Unit early on this year.  He has stabilised while in there and he is now under a level 3 residence for supervised accommodation at TKK.  He is followed up consistently by EPI which is the early psychosis intervention team.  I spoke [sic] with [the appellant] – he was fairly clear, quite able to explain things, his explanation of roles within the Court was well received, was a slight (inaudible) but there was a clarity to it and his understanding of Court process, taking different pleas, what the options were and where they could lead to was actually well explained.  I think he has a good understanding of the Court process.  I do think, and I’ll be mentioning this in my report, that in consideration of his admission to Waiatarau Unit, the fact that he is under the care of Mental Health Services, should at some stage (inaudible) or be found guilty at a later stage then obtaining a formal report to aid a sentence indication would be of benefit.

[8]      The Judge then went on to deal with the matter:

That would be a s 38 sentencing report.  Thank you, that’s fine.  Now Mr

Kovacevich that takes cares really of the concern about fitness to plead.

There’s no need to go down the s 9 or s 14 track at this stage.  So where are we off to now?

Counsel then confirmed the appellant maintained the not guilty plea and the matter was adjourned for fixture as recorded.

The appellant’s argument

[9]      Mr Heaslip submitted that the issue of the appellant’s fitness to plead and the possibility of the availability of an insanity defence were raised on 26 August 2009 and that, as the matter was raised, the process under the Act was engaged.  As it was not followed the hearing that followed was a nullity and the conviction should be set aside.

The Crown response

[10]     Ms Cuncannon submitted that the procedure under the Act had not been engaged.   She submitted that neither the accused nor his counsel had applied or requested the Court to determine the issue of the accused’s fitness to plead.

[11]     While Ms Cuncannon accepted that the Court was informed the appellant had mental health issues on 14 May and was made aware fitness to plead and an insanity defence might be an issue, she submitted that neither of those matters, either separately or together, triggered the Act.  While the appellant’s mental health was a matter of concern, the issue of fitness to plead had not been raised as an issue for determination by the Court.

[12]     Ms Cuncannon noted that the Court liaison nurses regularly assess accused, whether or not they have a history of mental health issues, at the request of the Court or defence counsel as part of an initial screening process.  Ms Cuncannon submitted that if the Court were to determine that every such screening assessment triggers the Act it would only be to the detriment of the accused and that such an approach would be likely to increase the number of persons subject to the Act.

[13]     She submitted that if the appellant now regretted the advice of his counsel he should have appealed on the grounds of counsel error rather than on the basis that the part I process under the Act was triggered.

Decision

[14]     The principal issue in this appeal is whether the part I process of the Act was or should have been triggered in this case.  If it was, Ms Cuncannon accepts it was not followed.  The question of when the Act is triggered was considered by the Court of Appeal in the decisions of:   McKay v R and R v Dalley.1    In McKay the Court

considered four possible tests:  I set out its analysis in full:2

[34]     Four possible tests have been suggested to us. The first is that the procedure should be triggered if the accused, his or her counsel, or the Crown raises a question as to the accused’s fitness to stand trial. In the normal course of events, whenever there is an application or request, the statutory process should thereafter be followed. Rarely, a judge may think that the application is sufficiently lacking in apparent merit that some further inquiry is appropriate before engaging the statutory process. In such cases, the   judge   must   make   such   inquiries   as   seem   appropriate   in   the circumstances, always bearing in mind that one should be cautious before refusing to respond to such a request.

[35]      The second suggestion is that we should adopt the procedure used in New South Wales. In that jurisdiction, the court is enjoined from conducting an inquiry into an accused’s fitness to stand trial “unless it appears to the Court that the question has been raised in good faith” (Mental Health (Forensic Provisions) Act 1990 (NSW), s 10(2)). Judicial decisions have since amplified how “good faith” is to be assessed in this context. The leading decision is one by the New South Wales Court of Criminal Appeal, R v Tier  (2001) 121 A Crim R 509. In that case, Kirby J delivered the leading judgment; Sheller JA and Grove J agreed with him. Kirby J said that s 10 suggested “a sequence of questions”. He continued:

[72]  …  Usually, an  accused  person  will  be  represented (s 12(1)). Where an accused’s representative raises a question concerning the unfitness of the accused, the trial Judge would ordinarily be expected to accept that the issue has been raised in good faith. Legal representatives, whether barrister or solicitor, are subject to professional obligations. Once raised by a practitioner there is, prima facie,  an  obligation  upon  the  trial  Judge  to  halt  the  trial,  and  to conduct an inquiry before a separate jury. If, however, the basis for concern is not obvious, or the validity of that concern is dubious, it is appropriate for the trial Judge to seek an elaboration upon the matters giving rise to the concern (cf Ngatayi v R [(1980) 147 CLR 1] at 8). Where that elaboration demonstrates a real and substantial question,

1      R v Dalley [2009] NZCA 419.

2      McKay v R [2010] 1 NZLR 441 at [34].

good faith will be presumed. The question of unfitness must then be determined by a separate jury. It is only where there is patently no real and substantial question that the Court may impute an absence of good faith, and decline to conduct an inquiry (s 10(2)).

[36]      Tier has been followed in at least two subsequent decisions of the

New South    Wales    Court    of    Criminal    Appeal    (R v Mailes    (2001)

53 NSWLR 251 and O’Meara v R [2006] NSWCCA 131).

[37]     The third suggestion is that we should adopt the standard used in Victoria. There the issue of unfitness to stand trial is considered only where there is a “real and substantial” question as to whether the defendant is fit to stand trial (see Crimes (Mental Impairment and Unfitness to be Tried) Act

1997 (Vic), ss 6 and 9).

[38]      The fourth possibility is the test adopted by Simon France J in R v Codd [2006] 3 NZLR 562. In that case, Simon France J suggested that the procedure would be triggered only where “an unfitness application” had been made and it was demonstrated that application had “a clear evidential foundation” (at [23]). Simon France J is a member of the current panel. We can therefore record that, in Codd, counsel did not provide submissions or authorities as to what the test should be.

[39]     Which of those four trigger tests should we adopt? In the end, with some diffidence, we plump for the first. The New Zealand Parliament, which would  have  been aware  of  the  statutory tests  in  New  South Wales  and Victoria, chose not to adopt them, at least explicitly. Our Parliament appears to have been content to leave this question to the good sense of trial judges. What Parliament has chosen not to be prescriptive about, we have concluded we should not be prescriptive about either. It is a low standard we have set, which is very dependent on the integrity and good judgment of counsel. We suspect that, in practice, it will not often yield a different result from what would have been the position had we suggested adopting either Australian test. The test will be easier to meet than the test suggested in Codd. We note that the Codd test was the subject of at least implicit criticism in a recent article by Professor Warren Brookbanks, a leading legal expert on mental health law (“Special Hearings under CPMIPA” [2009] NZLJ 30 at 30).

[40]     We should add that there may be rare cases where the procedure should be triggered even in the absence of an application by counsel. The judge  himself  or  herself may consider that the accused’s  conduct  either during the course of the alleged offending or during the court proceeding itself has been or is so bizarre as to raise a concern as to the accused’s fitness to stand trial. If the judge has such concerns and if the accused is represented by counsel, the judge should discuss his or her concern with counsel. Where the accused is acting for himself or herself, the judge will need to make a call. Sometimes, the process may need to be initiated even over the wishes of the accused if the judge considers there is real doubt as to the accused’s fitness to stand trial. Fair trial considerations would override the rights of an accused in that circumstance.

[15]     At [39] the Court expressly acknowledged that it had set a low standard very dependent on the integrity and good judgment of counsel before going on to note:3

We should add that there may be rare cases where the procedure should be triggered  even  in  the  absence  of  an  application  by  counsel.  The  judge himself or herself may consider that the accused’s conduct either during the course of the alleged offending or during the court proceeding itself has been or is so bizarre as to raise a concern as to the accused’s fitness to stand trial.

... Sometimes, the process may need to be initiated even over the wishes of

the accused if the judge considers there is real doubt as to the accused’s

fitness to stand trial. Fair trial considerations would override the rights of an accused in that circumstance.

[16]     In McKay the process was triggered by a memorandum from counsel.  It is important that in McKay the Court recognised that there must be a triggering event. The Act provides for reports from one health professional, so it implicitly recognises that the fact such a report is requested by the Court will not trigger the process.  As the Court of Appeal said:4

In saying that in this case Mr Eastwood’s memorandum triggered the process and that therefore the Judge should have gone straight to the s 9 assessment, we  should  not  be  understood  as  saying  that  s 38  reports  can  never  be obtained in advance of s 9 inquiries. Section 38 after all empowers the court to order reports “at any stage of a proceeding”. All we are saying is that, where the Subpart 1 procedure has been triggered, that procedure and its sequencing must be followed.

[17]    In Dalley the appellant had been charged with aggravated burglary and wounding with intent to cause grievous bodily harm.  He was remanded in custody. The health unit at the prison held concerns for his mental health and referred him to the Regional Forensic Psychiatry Services Unit of the Waitemata District Health Board.   Mr Firth from that unit presented a report to the Court.   It recorded the appellant was known to South Auckland Mental Health Services and currently under community care.  He was known to suffer from bi-polar affect disorder.  The report expressed the view that he might not be able to give adequate instruction to counsel. He recommended the Court call for a report under s 38 to consider the issue of

fitness to stand trial and mental illness.

3 At [40].

4 At [43].

[18]     A s  38  report  was  prepared  and  the  doctor,  a  senior  registrar  with  the Regional  Forensic  Psychiatric Services,  expressed the view that  at  the time the appellant was unfit to stand trial.  When the appellant was before the Court next he was  remanded  in  custody for  a  further  report  as  to  fitness  to  stand trial  to  be obtained.  At that stage a different psychiatrist prepared a report noting that in his opinion the appellant was then fit to stand trial.   There were thus two conflicting reports  before  the  Court.    No  fitness  hearing  took  place.    The  appellant  was remanded in custody and subsequently pleaded guilty.   On a sentence appeal the Court raised the issue whether the procedure under the 2003 Act had been followed before the guilty pleas had been accepted.

[19]     The Court observed the first psychiatrist’s report concluded the appellant was not fit to stand trial. A subsequent report concluded he was fit to stand trial.  Neither report was at any time the subject of proper analysis and decision by a Judge. What ultimately happened was that the appellant decided he wanted to plead guilty and instructed his counsel to do so.  But that was not a course sanctioned by the Act. The Court held that the Subpart 1 procedure was or should have been triggered in that case.

[20]     Dalley was one of the rare cases identified by the Court in McKay where the procedure should have been triggered even  in the absence of an application by counsel.

[21]     However, as McKay confirms, the trigger will generally be an application or request that the issue be determined by the Court.   The difference is between a question for determination being raised by the Court which triggers the procedure, as opposed to a responsible and reasonable expression of concern as to the mental state of the accused either at the time of the offending or when before the Court, which does not, at least at the stage it is initially raised, trigger the process.  As McKay confirms  the  trigger  is  very  dependent  on  the  integrity  and  good  judgment  of counsel.   Importantly, in that case the Court considered it would not often yield a different  result  from  the Australian  tests  –  such  as  where  elaboration  upon  the matters giving rise to concern demonstrates a real and substantial question (New

South  Wales)  or  where  there  is  a  real  and  substantial  question  (the  Victorian standard).

[22]     Under the McKay test the Court would not ordinarily examine the bona fides, substance or evidentiary foundation of an application or request  (which may be required under the Australian tests) but instead will rely on counsels’ integrity and good judgment.  It is nevertheless implicit that the Court considers the application would not be made except in  good faith and  where there was such  a real and substantial issue for determination.

[23]     Such an approach is broadly consistent with the practice of informal, or screening, assessments which have their place in informing the decision of counsel whether or not to make an application for determination.  Such informal assessments should be directed, not at the ultimate question of fitness to plead, but rather at whether there exists a real and substantial issue as to the accused’s fitness to plead. If the screening test discloses that there is such an issue then it would be appropriate for counsel to make an application for determination.

[24]    In the present case there is no record of any application or request for determination of the issue.   The screening report was obtained following initial concerns noted on 14 May and 11 June, which were perhaps understandable given the nature of the offending, and the earlier remand.

[25]     On the information before Judge Taumaunu on 10 September the appellant’s position had, since his admission and treatment, stabilised.  The information before the Court did not raise an issue for determination as to the appellant’s fitness to plead.  The Judge did not purport to determine the issue of fitness to plead but rather, on the information before him, took the view the sub-part 1 procedure was not engaged.

[26]     In summary, on the information before the Court there was no application or request by his counsel such as to trigger the sub-part 1 procedure. As Ms Cuncannon notes the appellant does not appeal on the ground his former counsel erred in not making such an application or request.

[27]     Absent such an application by counsel, on the information before the Court I do not consider this was a case where the Judge was required to have triggered the sub-part 1 procedure of his own initiative.  The Judge who dealt with the matter at the earlier call properly entertained an initial concern but that initial concern was met by the screening assessment.  The outcome of that screening assessment left no real or substantial question as to the appellant’s fitness to plead for determination.

Was there an indecent assault?

[28]     In the alternative Mr Heaslip submitted that the evidence did not support the finding of indecent assault.

[29]     The prosecution must establish three elements to make out the offence: (a)    that the accused assaulted the complainant;

(b)that the assault, or the assault and the circumstances surrounding it were indecent;  and

(c)       that the accused intended to commit an assault that in its nature or because of the circumstances was indecent.

[30]     There is no issue as to the first element, the assault.

[31]     Indecency is not specifically defined in the Crimes Act 1961.  The issue is whether the conduct offended against a reasonable and recognised standard of decency which, in the opinion of the fact finder, ordinary and reasonable members of the community ought to impose and observe in this day and age.   In  Police v

Drummond5  the Court suggested the standard to be “the contemporary standards of

propriety in the community”.6

[32]     Mr Heaslip referred to the cases of Peters v Police7 and Lowe v Police.8

5      Police v Drummond[1973] 2 NZLR 263 (CA).

6      At 268.

7      Peters v Police HC Whangarei CRI-2006-088-004622, 18 June 2007.

8      Lowe v Police HC Wellington CRI-2009-485-000135, 2 March 2010.

[33]     In the latter case Clifford J held that in the particular circumstances of the

case before him Mr Lowe’s cycling in the nude was not offensive behaviour.

[34]     In the present case it was not the fact the appellant was naked that made the assault indecent.   Rather, it was that in the naked state he deliberately advanced towards the complainant and bumped his naked body against her.   In the circumstances, even though the incident occurred in his lounge, such an action could be considered an indecent act by right minded members of the community.

[35]     The issue is whether the third element has been proved beyond reasonable doubt.  In Peters’ case Priestley J emphasised that in addition to proving the assault was indecent, the prosecution who had to prove that the alleged perpetrator intended to commit an indecent assault.  He suggested the fondling of a passenger’s thigh by a taxi driver might be seen as no more than an attempt to see if he could take matters further.  In the present case the Judge focused on the deliberate nature of the act, but failed to address  whether the appellant intended to commit an indecent assault. Given  the  bizarre  nature  of  the  circumstances  of  the  offending  (including  the reference to white nigger) and the accused’s explanation to the police, the Judge should have been left in doubt about this last element if he had addressed it.

Result

[36]     The application for leave to appeal is granted.  The appeal against conviction is allowed.  The conviction is quashed.  Given the passage of time since the incident, the circumstances of the incident and the Judge’s comments at sentence, I do not

propose to direct a rehearing.

Venning J