Maangi v Police
[2016] NZHC 1930
•19 August 2016
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2016-404-130
CRI-2016-404-131 [2016] NZHC 1930
BETWEEN ESTHER RAWINA TE HIRERE
MAANGI Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 11 July 2016 Appearances:
D Schellenberg for Appellant
M Harborow for RespondentJudgment:
19 August 2016
JUDGMENT OF DUFFY J
This judgment was delivered by me on 19 August 2016 at 4.30 pm pursuant to
Rule 11.5 of the High Court Rules.
Registrar/ Deputy Registrar
Solicitors / Counsel:
DHP Schellenberg, Auckland. Meredith Connell, Auckland
MAANGI v NEW ZEALAND POLICE [2016] NZHC 1930 [19 August 2016]
[1] The appellant, Esther Maangi, faced 12 charges in the District Court. There was a hearing under s 9 of the Criminal Procedure (Mentally Impaired Persons) Act
2003 (MIPA) to determine her fitness to stand trial.
[2] At a s 9 MIPA hearing the Court must be satisfied of a defendant’s involvement in the offences with which the defendant has been charged. This requires the Court to be satisfied on the balance of probabilities 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.
[3] During the s 9 hearing Judge Couch gave a ruling granting the police leave to withdraw six of the charges. At the conclusion of the hearing the Judge found Ms Maangi was responsible for the acts and omissions which gave rise to four of the remaining charges. On the other two charges the Judge was not satisfied that the evidence reached the standard of proof required by s 9, and accordingly he dismissed them.
[4] Ms Maangi now appeals against the Judge’s decision to grant the police leave to withdraw six of the charges she faced, and against his decision that she was responsible for the acts and omissions which gave rise to one of the other charges. This judgment concerns the first of those issues. A second judgment will follow in due course regarding the second ground of appeal.
Appeal against leave to withdraw charges
[5] The appeal against the decision to grant leave to withdraw certain charges raises jurisdictional questions for determination in addition to requiring a merits assessment.
[6] Ms Maangi bases her appeal on s 296 of the Criminal Procedure Act 2011 (CPA):
296 Right of appeal
(1) This section applies if a person has been charged with an offence.
(2) The prosecutor or the defendant may, with the leave of the first appeal court, appeal under this subpart to that court on a question of law against a ruling by the trial court.
(3) The question of law in a first appeal under this subpart must arise—
(a) in proceedings that relate to or follow the determination of the charge; or
(b) in the determination of the charge (including, without limitation, a conviction, an acquittal, the dismissal of the charge under section
147, or a stay of prosecution).
(4) The question of law must not be one that—
(a) arises from a jury verdict; or
(b) arose before the trial and has already been decided under subpart 2.
[7] Ms Maangi contends that her appeal satisfies the criteria in s 296(3) of the
CPA, and is not otherwise disqualified.
[8] The respondent contends that the ruling issued by Judge Couch falls outside s 296(3), and so there is no basis for the appeal under s 296 of the CPA.
[9] There is no alternative appeal provision available to Ms Maangi. If the appeal cannot be brought within the requirements of s 296 of the CPA, her only remedy for the legal and procedural errors she says have occurred in the District Court will be judicial review.
Events in the District Court
[10] The hearing in the District Court appears to have taken place on 14 and
15 September 2015.1 At [6] – [9] of the minute dated 15 September 2015 Judge
Couch stated:
[6] Yesterday, the prosecutor sought an adjournment. It took some time to fully understand the reasons why that was sought but the position that
1 The minute dated 15 September 2015 makes no direct reference to the hearing having commenced on 14 September 2015, but [5] of the minute notes the hearing under s 9 of the MIPA was to take place on 14 September 2015 and further in [5] and [6] of the minute the Judge refers to the hearing haven taken place “yesterday” when the prosecutor had “sought an adjournment”. Thus the contents of the minute are consistent with the advice I received from counsel who appeared before me on the appeal, and who represented Ms Maangi at the District Court that the hearing was spread over more than one day.
emerged was this. There is no direct evidence of the defendant’s involvement in a number of the offences alleged. The police have been relying on admissions or other statements made by the defendant following her arrest. The admissibility of those statements is challenged by Mr Schellenberg on behalf of the defendant. The police were seeking an adjournment partly in order to obtain DNA evidence which might fill the gap in determining the defendant’s involvement in the alleged offences.
[7] I have been told that when the defendant was remanded in custody she was asked to give a DNA sample voluntarily but declined. Since then it appears that the police were taking no steps to obtain an order that she provide a DNA sample.
[8] In these circumstances I decline the request for an adjournment. In doing so I have regard to the following factors:
(a) All the charges arise out of events said to have occurred in
March or April this year, that is several months ago.
(b) The charges are all laid on or before 2 July. The implication of that is that the police ought to have had sufficient evidence to justify charging the defendant with those offences.
(c) In the course of their investigation, police had DNA analysis done on some items of evidence. It is not entirely clear when that was initiated but appears to have been in May. The results showed the DNA of a female who was not in the database.
(d) The possibility that there may be a s 9 hearing was apparent on 16 July when the s 38 report was directed. That was obviously confirmed on 30 July when the matter was remanded specifically for a s 9 hearing.
(e) It was not clear, from what I was told yesterday, when the police actually asked the defendant to volunteer a DNA sample but that should have been a matter of priority after
30 July and I understand that it was in fact done before that.
(f) There is a straightforward procedure available under s 13
Criminal Investigations (Bodily Samples) Act 1995 for obtaining a Court order to provide a sample where a suspect
or accused person refuses to provide one.
(g) The police have not made such an application.
[9] In my view it is unjust to the defendant for the matter to be delayed by this default on behalf of the police. On that basis I directed that the s 9 hearing proceed yesterday. By agreement between the prosecutor and Mr Schellenberg, witness statements relied on by the police were all handed up with two reservations.
[11] I was advised by Ms Maangi’s counsel that, despite their inclusion in the minute dated 15 September 2015, the refusal of the adjournment and reasons for so doing were delivered orally by Judge Couch on 14 September 2015. This is consistent with the text in [9] of the minute dated 15 September 2015.
[12] Thus, at 14 September 2015 Judge Couch was of the view that the hearing should proceed and that the police should not be given more time to improve on the prosecution case through securing additional evidence.
[13] However, later in the minute of 15 September 2015 Judge Couch expresses a different view of whether the prosecution should proceed. By then it seems he had heard all the evidence for the prosecution and thought about the matter overnight. At [13] of the minute he set out the tests under s 9 of the MIPA and then at [14] he stated:
A complete analysis of the evidence has not been possible overnight but I have formed some preliminary views which may assist the parties. I go through the charges in groups.
[14] Following the above statement Judge Couch then went through each of the charges. Judge Couch concluded that there was “very little evidence …” in relation to the charges of driving while forbidden and dangerous driving. He found there was no evidence in relation to a breach of police bail. In relation to two burglary charges and one charge of unlawfully taking a Toyota Highlander vehicle he found there was insufficient evidence to reach the threshold under s 9 of the MIPA. He found there was a burglary charge and a charge of unlawfully taking a Mazda vehicle which were reliant on admissions from Ms Maangi. He found there was insufficient evidence to link her to a burglary at a property at Tiri Tiri Road.
[15] That said, Judge Couch then took what Ms Maangi contends was a procedurally improper course, namely:
[21] At this stage I would be prepared to give the police leave to withdraw any charges they may wish to withdraw. That would then leave it open to the police to relay those charges if better evidence was obtained.
[22] If the police wish to proceed with the charges which rely on admissions, then I will give the opportunity for submissions to be made but I
draw attention to the conclusion in the psychiatrist’s report that the defendant’s psychosis developed over a period of time and her symptoms have settled down since she has been deprived of alcohol and illegal drugs whilst in custody.
[23] Given that the psychiatrist’s concludes that the defendant is now unable to sufficiently understand the trial process, this must cast great doubts on whether she understood her rights when interviewed by police or whether she understood the significance of what she was saying to police at the time.
[16] Judge Couch then stated:
[24] Now I have said quite a lot and I think it is probably best if I stand this matter down to enable the police to consider their position. I find on the material before me now that the three charges that were laid on 10 April are proved to the required standard under s 9.
[25] This is my preliminary view based on fairly detailed examination of the evidence but it is not my final view. I understand your submission Mr Schellenberg (for Ms Maangi) that the hearing is not completed yet. I adjourned the hearing yesterday. I am giving this indication partway through the hearing. When the hearing is concluded I must indeed, as you submit, reach a conclusion under s 9, on each charge, so if the police wish to maintain those charges then I will give a final view on them.
[26] I have considered that matter very carefully Mr Schellenberg it is an appropriate course at any stage of any prosecution. If the police form the view that they are unable to establish the charges to the required standard, due to insufficient evidence, then they should seek leave to withdraw it, and they may do that if the Court grants leave. If the police subsequently become aware of additional evidence which may prove the charges to the required standard then it is open to them to lay the charges again.
[27] That is absolutely standard criminal procedure. Mr Schellenberg that is a very emotive submission but it is not one that I accept. Again, I am calling an adjournment in this s 9 hearing to enable the police to consider their position. So it is stood down to be recalled.
[17] Judge Couch delivered a ruling dated 15 September 2015 which follows the minute dated 15 September 2015. The ruling refers to the Judge’s indication to the parties on the question of leave to withdraw charges and the subsequent adjournment of the s 9 hearing. The ruling notes that the police subsequently sought leave to withdraw certain charges and that Ms Maangi opposed this course of action.
[18] Judge Couch rejected Ms Maangi’s submission that pursuant to s 13(1) of the MIPA he was required to make a decision on the matters which were before him and that it would be wrong for him to grant leave for them to be withdrawn. The Judge
was of the view that s 13(1) did not apply as the hearing was not yet concluded.2
The Judge opined that it was the right of any informant to seek leave to withdraw a charge at any time before the charge had been finally determined by the Court, and that whether leave should be granted was a matter of discretion.
[19] Judge Couch rejected the submission from Ms Maangi that it would unfairly prejudice and disadvantage her if he permitted the charges to be withdrawn. He rejected the idea that the charges could be re-laid and result in her going through the same procedure again under the MIPA. The Judge’s view was that if Ms Maangi was unfit to stand trial that would bring matters to an end. If she was fit to stand trial his view was that it would be unjust if she could avoid having to answer for actions she may well be responsible for simply because of the weakness of the prosecution
case before him.3
[20] Judge Couch observed that the alternative was for him to adjourn the hearing for a period of weeks or months to enable the police to obtain further evidence, but that would be to Ms Maangi’s disadvantage as she would either remain in custody or possibly on electronically monitored bail. The Judge then referred to reasons which he said he had given earlier that morning that an adjournment would be unjust. However, from the text of the minute it seems those reasons were given the previous day, on 14 September 2015.
[21] Judge Couch then rejected Ms Maangi’s submission that the preliminary findings he had made regarding sufficiency of evidence for some charges were final findings. He said that he had spent considerable time overnight looking at material provided to him the previous day by way of witness statements handed up. He then referred to having not had the benefit of submissions from the police. He said he would only proceed to the conclusion of a s 9 hearing on the matters in which he had expressed “preliminary reservations” if the police wished to proceed to the
conclusion of the hearing. If that was so he would have received submissions about
2 See [3] of the ruling.
the sufficiency of proof in relation to those matters and then made a final determination.4
[22] Then on 15 September 2015 Judge Couch delivered an oral judgment in which he referred to his ruling about leave being granted to the police to withdraw charges, the prosecution having sought leave. He confirmed he had granted leave to withdraw six charges.
Discussion
[23] I was advised by counsel for Ms Maangi that when Judge Couch indicated his preliminary view to the police that the evidence to prove six of the charges was insufficient the prosecution had adduced its evidence and all that was left was for the parties to make submissions as Ms Maangi was not calling any evidence. This account of events appears to me to be borne out by Judge Couch’s comments at [10] of the ruling dated 15 September 2015 where he states that if the police do not want to pursue leave to withdraw any of the charges on which he has indicated concerns about sufficiency of proof they can proceed to make submissions on that topic, following which he would make a final determination on such charges.
[24] The course of the hearing before Judge Couch and the ruling he delivered on
15 September 2015 raise questions of law regarding the procedural propriety of the s 9 hearing. The Judge issued an invitation at the close of the prosecution’s evidence to apply for leave to withdraw six of the charges because the Judge was concerned whether there was sufficient evidence to prove those charges to the required standard of proof. This may raise questions of judicial bias, either apparent or actual. The subsequent decision to allow the police to withdraw those charges at the end of the prosecution’s evidence may be unreasonable, and an abuse of process.
[25] The appropriate time to raise any issue regarding the prosecution withdrawing the charges was before the commencement of the hearing, when the prosecution applied for an adjournment. This request was premised partly on a wish to obtain further evidence in the form of DNA evidence to fill the perceived gaps in
the prosecution case.5 Had the Judge suggested withdrawal of charges then, as an alternative to an adjournment, there would be no potential appearance of partiality as he would not have heard the evidence. But, once the Judge was seized of the matter, and had heard the prosecution’s evidence on it he arguably should then have proceeded to determine it.
[26] Ms Maangi referred to s 13 of the MIPA which requires a Court to dismiss the charges if it is not satisfied of the matter specified in s 9. She argues that the court process had reached this point, so that Judge Couch’s refusal to make a determination amounts to an error that raises questions of law about the conduct of the s 9 hearing. The points Ms Maangi makes are seriously arguable. Thus, Ms Maangi can meet one of the requirements for an appeal under s 296 of the CPA.
[27] However, where Ms Maangi’s appeal founders is in relation to the requirement for the question of law to be one that relates to, or follows the determination of a charge,6 or arises in the determination of the charge.7 The latter limb of s 296(3) of the CPA sets out an inclusive list of the ways in which a charge can be determined. These include: a conviction, an acquittal, a dismissal under s 147 of the CPA, or a stay of prosecution. Each of those brings a charge to an end. Whilst
the list may be inclusive and, therefore, allows for other outcomes they must be outcomes that finally determine a charge.
[28] What occurred here is in essence a refusal by Judge Couch to make a final determination on the six charges that he thought might fail for want of proof. Instead, he offered the prosecution the opportunity of a lifeline, which it accepted. Whether it was proper for him to act in that way is the key question. Whilst the Court of Appeal in Anderson v R recognised that some pretrial rulings may come within s 296, this principle cannot be relied upon to bring a refusal to make a
determination within the section.8 Accordingly, there is nothing about the present
case that can be said to “relate to” the “determination” of the charges which
Ms Maangi faced.
5 See [6] of the minute dated 15 September 2016.
6 See s 296(3)(a) of the CPA
7 See s 296(3)(b) of the CPA
8 Anderson v R [2015] NZCA 518, [2016] 2 NZLR 321.
[29] Ms Maangi argued that judicial review is a cumbersome remedy in comparison with appeal and so I should adopt an interpretation of s 296 of the CPA that realized the policy objectives of the CPA. These including the provision of an appeal. I accept that Parliament may have intended those policy objectives. However, I cannot fit what occurred in this case into the bounds of s 296(3). It follows that I find there is no jurisdiction to bring this appeal under s 296 of the CPA.
[30] Further I reject the idea that judicial review is a cumbersome remedy. In a case like the present the preparation of a statement of claim can be readily accomplished. There may be no need for evidence as the District Court can be directed to provide a record of the proceedings, which may be all that is required to
substantiate the factual allegations in the statement of claim.9 Further with judicial
review the status quo regarding Ms Maangi’s position can be protected by interim relief granted under s 8 of the Judicature Amendment Act 1972. This would protect her if there any suggestion of the possible hearing of re-laid charges before the judicial review were heard and determined.
[31] Section 16 of the MIPA allows an appeal against a finding that the evidence against a defendant is sufficient to establish that the defendant caused the act or omission that forms the basis of the offence, but not against a refusal to make a determination on the sufficiency of the evidence to establish either of those.
[32] No other appellate jurisdiction was identified for me. All that Ms Maangi is left with then is judicial review, which is readily available to her.10
[33] Leave is required to bring an appeal under s 296 of the CPA.11 The arguments she raises were worthy of consideration. Leave to bring the appeal is granted to Ms Maangi, but for the reasons given herein the appeal is dismissed for
want of jurisdiction.
9 See s 10(2)(j) of the Judicature Amendment Act 1972.
10 See Lewis v Wilson & Horton Ltd [2000] 3 NZLR 546 (SC).
11 See s 296(2) of the CPA.
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