McKay v R
[2009] NZCA 378
•26 August 2009
For a Court ready (fee required) version please follow this link
IN THE COURT OF APPEAL OF NEW ZEALAND
CA391/2008
[2009] NZCA 378THE QUEEN
v
RICHARD HORTON MCKAY
Hearing:16 June 2009
Court:Chambers, MacKenzie and Simon France JJ
Counsel:R A A Weir and S Member for Appellant
M D Downs for Crown
Judgment:26 August 2009 at 3 pm
JUDGMENT OF THE COURT
The appeal is dismissed.
REASONS OF THE COURT
(Given by Chambers J)
Table of Contents
Para No
Four robberies in four days [1]
Issues on the appeal [10]
Should Mr Eastwood’s memorandum have triggered the Subpart 1
procedure? [20]
What was before the judge on 24 May 2007? [25]
What is needed to trigger the procedure?[33]
Should the procedure have been triggered here? [41]
What are the consequences of the judge’s failure to follow the
Subpart 1 procedure? [44]
Should Mr McKay’s election to represent himself have triggered a
reappraisal of his fitness to stand trial? [65]
Should events at the trial have triggered a reappraisal of Mr McKay’s
fitness to stand trial? [68]
Was the trial unfair? [71]
Outcome of this appeal [84]
What should trial judges do if a question of fitness to stand trial arises
between the preliminary hearing and the trial? [85]
When do ss 16 and 17 apply? [99]Four robberies in four days
[1] Over four days in October 2005, four Auckland banks were robbed. The day after the final robbery, police identified Richard McKay, the appellant, as responsible. Police approached Mr McKay, but he refused to answer questions. He was then charged with the four robberies.
[2] Following a preliminary hearing, Mr McKay was committed to trial. In the week prior to trial, Mr Eastwood, then Mr McKay’s counsel, filed a memorandum, dated 22 May 2007, in which he “gave notice of his intention to request the District Court appropriately to address the issue of the fitness of the accused to stand trial”.
[3] The trial was due to start on 24 May. Judge Joyce QC, the trial judge, saw counsel and discussed at length Mr Eastwood’s memorandum, the matters raised in it, and other material relating to Mr McKay’s mental state which was available. In the end, the judge acceded to Mr Eastwood’s application that the trial be adjourned. The judge also decided he would get assessment reports from two psychiatrists in terms of ss 38 and 39 of the Criminal Procedure (Mentally Impaired Persons) Act 2003. The purpose of the reports was to assist the court to determine whether Mr McKay was unfit to stand trial and whether he was insane.
[4] On 20 June, Judge Joyce saw counsel again. By that time he and counsel had received assessment reports from two psychiatrists, Dr Tyrone Burgess and Dr Sandy Simpson. In addition, Mr Eastwood had obtained his own psychiatric report from Dr Greig McCormick. Because neither the judge nor counsel had had time properly to consider the three reports, Judge Joyce adjourned the matter further, expressly reserving “the right to Mr Eastwood and thus, of course, Mr McKay, within the week … to file any application for order or direction as counsel sees fit”.
[5] No application of any sort was filed. Notwithstanding that, Judge Joyce himself considered the three reports and satisfied himself that Mr McKay was fit to stand trial.
[6] The trial was rescheduled for 14 November 2007. At some point between June 2007 and November 2007, Mr McKay changed counsel. His new counsel was Mr Speed. Mr Speed appeared on Mr McKay’s behalf on 14 November. A jury was empanelled. Judge Joyce then considered an application concerning the admissibility of certain Crown evidence. Mr Speed argued that application on Mr McKay’s behalf. Following the resolution of that matter, however, Mr McKay dismissed his counsel and advised he would defend himself.
[7] The trial then proceeded. Mr McKay gave evidence. The essence of his defence was that he had made the demands for money from the four banks as an experiment to see whether and how tellers would react to his notes of demand. In that sense, the defence appears to have been that Mr McKay lacked the intent permanently to deprive the banks of their money. The jury found him guilty of all four charges.
[8] Judge Joyce declined jurisdiction to sentence Mr McKay on the ground that a sentence of preventive detention might be appropriate. Courtney J subsequently sentenced Mr McKay. She imposed a finite sentence of nine years’ imprisonment and ordered Mr McKay to serve a minimum period of imprisonment of six years.
[9] Mr McKay originally appealed against both his convictions and his sentence. Shortly before the hearing before us, however, he abandoned the appeal against sentence.
Issues on the appeal
[10] Mr Weir and Ms Member, for Mr McKay, raised five issues on this appeal. The first four issues revolve around the applicability and interpretation of Part 2 Subpart 1 of the 2003 Act. That subpart sets out provisions for how “findings of unfitness to stand trial” are to be made. There is no dispute that, if the Subpart 1 provisions applied to this case, Judge Joyce did not follow them to the letter. Did they apply?
[11] Mr Weir’s first argument was that Mr Eastwood’s pre-trial memorandum should have triggered the Subpart 1 procedure. That memorandum should have led the judge to proceed immediately to the first step of the procedure, namely the enquiry under s 9 as to whether “the evidence against the defendant [was] sufficient to establish that the defendant caused the act or omission that forms the basis of the defence with which the defendant is charged”. Not only did the judge not resolve the s 9 question then, he never did. Instead, he went straight to the second step of the enquiry, namely calling for psychiatric reports under s 38. A crucial step in the Subpart 1 procedure was thus never carried out.
[12] Mr Downs, for the Crown, disputed that submission. He submitted Mr Eastwood’s memorandum had not triggered the Subpart 1 procedure and that the judge’s calling for s 38 reports was lawful and was a step that could be undertaken without triggering the Subpart 1 procedure. That was clearly Judge Joyce’s view as well, as the judge was clearly fully aware of the provisions of the 2003 Act and must have been aware that he was not following the Subpart 1 procedure. The only conclusion that can be drawn is that he did not consider the need to follow the Subpart 1 procedure had been triggered. So the first issue is: should Mr Eastwood’s memorandum have triggered the Subpart 1 procedure?
[13] For reasons we shall give, we think Mr Eastwood’s memorandum should have triggered the Subpart 1 procedure. The judge did not follow that procedure to the letter. Does that matter? Did this deviation from the procedure lead to a miscarriage of justice or to the trial being a nullity? That is the second issue.
[14] On the first day of the trial, Mr McKay sacked his counsel and elected to represent himself. Should that have triggered a reappraisal of his fitness to stand trial? That is the third issue.
[15] Mr Weir’s fourth argument hinged on what happened at trial. He noted that the Subpart 1 procedure can be triggered “at any stage after the commencement of the proceedings and until all the evidence is concluded”: s 7(1). Mr McKay’s behaviour at trial, Mr Weir submitted, was so extraordinary that the judge should have reconsidered his fitness to stand trial and, of his own motion, initiated the Subpart 1 procedure. So the fourth issue is: should events at the trial have triggered a reconsideration of Mr McKay’s fitness to stand trial?
[16] If any of the above arguments succeeded, Mr Weir submitted a serious miscarriage of justice would have occurred: Crimes Act 1961, s 385(1)(c). Alternatively, the effect of the failure to follow the Subpart 1 procedure was to render the trial a nullity: s 385(1)(d).
[17] Mr Weir’s fifth argument, like the third, hinged on what happened at trial. He submitted that, even if events at trial did not trigger the Subpart 1 procedure, they nonetheless demonstrated that Mr McKay’s trial had not been fair. So the fifth issue is: was the trial unfair?
[18] Discussion at the hearing before us was wide-ranging. There are two further topics we intend to comment on, even though neither is essential to our decision. The first of these additional issues concerns the structure of Subpart 1. Cases cited to us indicate that trial judges are uncertain as to what to do if a question of fitness to stand trial arises in indictable cases between the preliminary hearing (now called the committal hearing) and the trial. We shall express our opinion on that topic.
[19] Secondly, ss 16 and 17 of the 2003 Act purport to lay down special rules relating to appeals against findings relating to fitness to stand trial. Do those provisions apply to an appeal like this? When do they apply?
Should Mr Eastwood’s memorandum have triggered the Subpart 1 procedure?
[20] Mr Weir submitted that Subpart 1 now set out the sole procedure for determining whether a defendant is fit or unfit to stand trial. In his submission, the first step of that procedure is an enquiry as to whether “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”: s 9. If the court is not so satisfied, the enquiry as to fitness to stand trial proceeds no further; the court must discharge the defendant: s 13(2). If, on the other hand, the court is satisfied that the defendant caused the act or omission that forms the basis of the offence, then s 13(4) requires the court to “proceed to determine the matters specified in section 14”.
[21] Section 14(1) reads as follows:
If the court records a finding of the kind specified in section 13(4), the court must receive the evidence of 2 health assessors as to whether the defendant is mentally impaired.
[22] Mr Weir submitted that it was only at that point that the court was entitled to utilise the s 38 power to order health assessors to prepare assessment reports for the purpose of assisting the court “to determine…whether the person is unfit to stand trial”. In this case, the judge clearly considered there was sufficient concern to justify ordering s 38 reports. He did that, however, before he had undertaken the s 9 enquiry. Even if he considered the circumstances warranted s 38 reports, he should first have asked himself whether the evidence against Mr McKay was sufficient to establish he had caused the acts or omissions that formed the basis of the offences with which he had been charged, and he should then have recorded his finding on that matter in terms of s 13(1).
[23] Mr Weir submitted that the way the judge dealt with the question of Mr McKay’s fitness to stand trial effectively subverted the Subpart 1 regime. The judge decided Mr McKay was fit to stand trial before he had undertaken the s 9 enquiry, contrary to s 7, which reads as follows:
(1)A court may make a finding under this subpart that the defendant is unfit to stand trial at any stage after the commencement of the proceedings and until all the evidence is concluded.
(2)Subsection (1) is subject to section 9.
[24] That is the statutory background to this issue. We develop our answer to this first issue under three heads:
(a)What was before the judge on 24 May 2007?
(b)What is needed to trigger the Subpart 1 procedure?
(c)Should the procedure have been triggered here?
What was before the judge on 24 May 2007?
[25] The most important document before the judge was Mr Eastwood’s memorandum of 22 May. It recorded what had occurred on 18 May at a callover. Mr Eastwood said he had raised with the presiding judge that he was having difficulty obtaining instructions from Mr McKay in relation to the factual issues of the case. He had raised the prospect that he might need to seek leave to withdraw as counsel because, as he put it in the memorandum, “of an established principle that counsel can only act on instructions”.
[26] Mr Eastwood went on to record that, having discussed the matter further with Mr McKay and Mr McKay’s uncle, he had decided to carry on representing Mr McKay. He had three further meetings with Mr McKay after that. A number of issues were discussed, including Mr McKay’s wish to have a psychiatric examination. But Mr McKay remained, according to Mr Eastwood, “unwilling to give any clear instructions to counsel in relation to the facts of this case”.
[27] Mr Eastwood continued:
6I request that a disability hearing be convened to establish whether the accused is in fact fit to plead to the indictment. I note his former counsel Mr Comeskey raised this in a memorandum when he sought leave to withdraw as counsel.
7Counsel has applied to Legal Services for funding for a psychiatrist to examine the accused in relation to his fitness to plead and Dr McCormick of Auckland has agreed to see him. Counsel for the accused has sighted a number of psychiatric reports dated 2002 which in the view of counsel further supports an application for a disability hearing.
[28] Mr Eastwood, after reference to R v Carrel [1992] 1 NZLR 760, continued:
9I urge upon the court to adjourn the trial so that the accused can be examined by a psychologist or psychiatrist to determine issues of fitness to plead.
10In the event that the court is unwilling to adjourn the hearing of this trial, counsel seeks leave to withdraw on the basis articulated in R v Carrel that the accused refuses to give his counsel adequate instructions or address a defence to the charge.
[29] Mr Eastwood’s memorandum caused the judge to make enquiry as to what “other material” might be available and “helpful”. This turned up a report from Dr R H Wyness, a consultant psychiatrist with Regional Forensic Psychiatry Services, dated 12 February 2002, and a file note of 15 February 2002.
[30] Dr Wyness’s report was prepared at a time when Mr McKay had faced certain drug and sex charges. The District Court at Manukau had sought a psychiatric report under the then statutory authority, s 121 of the Criminal Justice Act 1985. Dr Wyness reported to the court on four matters: whether Mr McKay suffered from mental illness; whether he had a mental disorder as defined by the Mental Health Act 1992; whether he was under a disability as defined by s 108 of the Criminal Justice Act; whether he was insane as defined by s 23 of the Crimes Act 1961. The third of those matters covers fitness to stand trial. The 2003 Act replaces Part 7 of the Criminal Justice Act (s 108 being the first section of that Part). Dr Wyness concluded that, at the time of his assessment, Mr McKay “would have been found not to be under disability”, in terms of s 108, but it is important to remember that the 2003 Act has redefined what amounts to a disability for these purposes. In general terms, the test as to who is under a disability has been widened.
[31] Dr Wyness’s report referred to Mr McKay’s extensive psychiatric history since 1984, including various psychiatric assessments of him over that period. Dr Wyness concluded that there was “a great deal of lack of clarity about whether [Mr McKay] suffers from a mental illness or not”. He did not consider, after his one and a half hour assessment of Mr McKay, that he could give “a definitive answer as to whether Mr McKay suffers from a psychiatric illness”. He tended to believe, however, that Mr McKay did “not suffer from an Axis I psychiatric illness”. Rather, he believed Mr McKay displayed “a mixed personality disorder with paranoid, schizotypal, antisocial and narcissistic personality traits”.
[32] Court staff have not been able to find the file note of 15 February 2002 to which Judge Joyce referred. In that regard, all we can say about it is what the judge recorded in his “ruling” of 24 May 2007. The judge said in that ruling:
[13] That [enquiry I had caused to be made] turned up a report of 12 February 2002 and a file note of 15 February 2002 which – taking as a brief summary what is at the top of the last page of the 12 February report and what is in the last paragraph of the 15 February note – there, for us all to see, were indicia (at least to a lay person) of there possibly being a substantive foundation for Mr Eastwood’s current difficulties.
[14] The last paragraph of the 15 February note is that the accused “is (that is was then) definitely on an Axis II (personality) but an Axis I (mental illness) disorder would need to be excluded and it may be necessary for a second opinion to be sought to be sure of this”. And that observation is made with an understanding of the view in the earlier (but not at that point sighted by this consultant) 12 February report.
What is needed to trigger the procedure?
[33] The 2003 Act does not expressly state what is needed to trigger the Subpart 1 procedure. In these circumstances, we must look to context in order to divine Parliamentary intention.
[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 enquiry is appropriate before engaging the statutory process. In such cases, the judge must make such enquiries 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 enquiry into an accused’s fitness to stand trial “unless it appears to the Court that the question has been raised in good faith”: see 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, at [72], that s 10 suggested “a sequence of questions”. He continued:
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 The Queen [(1980) 147 CLR 1] at 8). Where that elaboration demonstrates a real and substantial question, 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 Maile (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 judgement 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.
Should the procedure have been triggered here?
[41] We have no doubt that Mr Eastwood’s application, in the context of what had gone before in this criminal proceeding, should have triggered the Subpart 1 procedure. As it happens, the judge had available to him much more than what Mr Eastwood had set out in his 22 May memorandum. Dr Wyness’s report provided support for Mr Eastwood’s concern. Although we have not seen the other consultant’s file note of 15 February 2002, it is clear that it too provided support for the concern counsel had expressed.
[42] The procedure having been triggered, Judge Joyce should have proceeded to consider the s 9 question, namely whether he was satisfied, on the balance of probabilities, that the evidence against Mr McKay was sufficient to establish that he had caused the acts forming the basis of the offences with which he had been charged. Neither counsel has suggested that this was a case where that enquiry could or should have been postponed in terms of s 8(1). Only if the judge had been satisfied on the s 9 matter could he then go on to determine Mr McKay’s fitness to stand trial: s 13(4). It was at that point that the health assessors’ reports should have been obtained: s 14(1).
[43] 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 enquiries. 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.
What are the consequences of the judge’s failure to follow the Subpart 1 procedure?
[44] The failure to undertake the s 9 procedure does not mean that we must allow Mr McKay’s appeal. Mr Weir sensibly acknowledged that. What Mr McKay has to establish, in terms of s 385(1) of the Crimes Act, is that there has been “a miscarriage of justice” or that “the trial was a nullity”. Mr Weir relied on both provisions.
[45] We deal first with the question of whether there was a miscarriage of justice. Not every deviation from a statutory procedure is necessarily a miscarriage of justice. We are satisfied this deviation did not give rise to a miscarriage. These are the reasons.
[46] Had the judge embarked on a s 9 enquiry, it is inevitable that he would have been satisfied, on the balance of probabilities, that the evidence against Mr McKay was sufficient to establish that Mr McKay caused the acts forming the basis of the offences with which he had been charged. There is a very interesting discussion in Professor Brookbanks’s article to which we earlier referred as to what “caused the act or omission” in s 9 means: at 33-34. The professor suggests three possibilities as to how the phrase may be interpreted. The professor goes on to consider the meaning of “evidence” in s 9 and how the s 9 enquiry should be conducted: at 34 and 40. He concludes at 40:
For these reasons I would suggest that the s 9 procedure implies a more relaxed evidential inquiry in which any evidence (in any form) which assists the court in making a determination on the core issue ought to be admissible, subject to the requirements of natural justice and the ability to test any evidence which may be inherently unreliable.
[47] While it may be helpful for this court to pronounce on which of Professor Brookbanks’s three interpretations of “caused the act or omission” is correct, we decline to do so for two reasons. First, it does not matter in this case which of the three interpretations is adopted: on any of them, it is clear the judge, had he proceeded on a s 9 enquiry, would have been satisfied, on the balance of probabilities, that Mr McKay caused the acts. The Crown case against Mr McKay was overwhelming. Secondly, we have not had the benefit of full argument on this point. Mr Weir, prior to the appeal, was uncertain as to whether his retainer continued, owing to Mr McKay’s conflicting instructions to him, with the consequence that his submissions were prepared in some haste and filed and served only shortly before the hearing. As a consequence, Mr Downs had very limited time in which to respond.
[48] Nor do we wish to comment upon Professor Brookbanks’s opinion as to how a s 9 procedure should be conducted, save to say we consider his conclusion quoted above at [46] is probably right.
[49] The s 9 hurdle would therefore have been crossed. The judge would have recorded his finding on that (s 13(1)) and would then have proceeded in terms of s 14. While courts always hesitate to criticise legislative drafters, being aware of how difficult the drafting art is, we do observe that s 14 is obscure and that it is impossible to make the section work, if read literally. We set out s 14:
Determining if a defendant unfit to stand trial
(1)If the court records a finding of the kind specified in section 13(4), the court must receive the evidence of 2 health assessors as to whether the defendant is mentally impaired.
(2)If the court is satisfied on the evidence given under subsection (1) that the defendant is mentally impaired, the court must record a finding to that effect and –
(a)give each party an opportunity to be heard and to present evidence as to whether the defendant is unfit to stand trial; and
(b)find whether or not the defendant is unfit to stand trial; and
(c)record the finding made under paragraph (b).
(3)The standard of proof required for a finding under subsection (2) is the balance of probabilities.
(4)If the court records a finding under subsection (2) that the defendant is fit to stand trial, the court must commence or continue the hearing or trial, or commit the defendant for trial, as the case may require.
[50] The section obviously needs to be read in the context of the Act as a whole. In that context, we think the section (as amplified) envisages the following six steps:
Step 1
It will be rare, at this stage of the process, for the court already to have two health assessors’ reports. So the first step is to obtain them. If the defendant is on bail, he or she will probably usually be willing to undergo assessment as to whether he or she is mentally impaired. If so willing, no court order is required. If the defendant is in custody, then the court can order reports from two health assessors under ss 38 and 39 of the Act. That will normally be the first step. If the defendant is on bail and will not agree voluntarily to be assessed, then there is a problem. A court is not entitled to refuse bail just so an assessment can be undertaken: see s 38(3). What the court should do in these circumstances must await another day; we have not had argument on the point and, in any event, this is likely to be a rare situation.
Step 2
If, as will normally be the case, the reports have been ordered under s 38 and/or s 39, those reports must be made available to the defendant’s counsel and (generally) the defendant (s 45) and to the prosecutor (s 46(1)(a)).
Step 3
The court must give each side the opportunity to present evidence as to whether the defendant is mentally impaired (s 45(5)) and/or as to whether he or she is unfit to stand trial (s 14(2)(a)).
Step 4
The court must give each side the opportunity to make submissions (s 14(2)(a)).
Step 5
The court must make and record findings (on the balance of probabilities: s 14(3)). Three findings are possible:
(a) The defendant is not mentally impaired. (Such a finding will automatically mean he or she is fit to stand trial.)
(b) The defendant is mentally impaired but nonetheless fit to stand trial.
(c) The defendant is mentally impaired and unfit to stand trial.
Step 6
If findings (a) or (b) are made, s 14(4) applies. The case will proceed to trial. If finding (c) is made, then the court will proceed in accordance with Subpart 3.
[51] Even though Judge Joyce did not regard the Subpart 1 procedure as having been triggered, he did nonetheless proceed in accordance with those six steps. He ordered two health assessors’ reports (step 1). He caused those reports to be given to Mr McKay, Mr Eastwood, and the prosecutor (step 2). He gave each side the opportunity to present further evidence (step 3). Mr Eastwood took that opportunity and submitted the report from Dr McCormick.
[52] The judge, in effect, gave each side the opportunity to make submissions (step 4). He heard the parties on 20 June 2007 and gave them an opportunity to make submissions on the reports obtained from Drs Burgess, Simpson and McCormick. In addition, he gave both Mr Eastwood and Mr McKay a further opportunity to file “any application for order or direction”: see at [4] above. Obviously that was an indication from the judge that, if either Mr McKay or Mr Eastwood wished to pursue an unfitness application or to make further submissions on the evidence now before the court, the judge would be willing to hear them. No such application was filed.
[53] Judge Joyce then did proceed to make and record findings in his minute of 6 July 2007. He recorded his “complete satisfaction with the fitness of the accused to stand trial” and his reasons for that finding. Mr Weir submitted that, while the judge clearly recorded his satisfaction that Mr McKay was fit to stand trial, he had not recorded whether or not he found him mentally impaired. That is to say, in terms of our step 5, he did not make clear whether his finding was a type (a) finding or a type (b) finding. There is some merit in that submission, but we think it reasonably clear from the minute that the judge did consider Mr McKay was mentally impaired but nonetheless fit to stand trial. Whether the finding was of type (a) or type (b), however, the result is the same: the trial proceeds (step 6). That is what happened.
[54] When the time passed for any further application (as to unfitness), the judge did consider all the evidence then before him and concluded that he was satisfied Mr McKay was not unfit to stand trial. Whether that analysis was explicitly in terms of s 14(2)-(4) or not, what the judge did complied with those subsections.
[55] We have considered the three reports the judge had before him. His conclusion that Mr McKay was fit to stand trial was, in our view, not only open to him but right. Drs Burgess and McCormick were both clear that Mr McKay was fit to stand trial. Dr Simpson was less definitive in his opinion, but this flowed from his understanding that “mental impairment” was ultimately a matter for the court, not psychiatrists or other expert witnesses. Indeed, Mr Weir “accepted that the appellant was not deemed unfit to stand trial by the psychiatrists who provided reports to the court in June 2007”.
[56] Although Dr Simpson was, for the reason he gave, less definitive as to whether Mr McKay was fit to stand trial, the conclusions he did state would inevitably have led the judge to the same conclusion which Drs Burgess and McCormick had reached. Dr Simpson’s conclusion on his “mental status examination” of Mr McKay was as follows:
There was not evidence of cognitive disorder. [Mr McKay] was alert, oriented and fully aware of issues he was facing. He denied that he was mentally ill, though was concerned that the Court may view his having a diagnosis of personality disorder as a reason to detain him in hospital.
[57] Dr Simpson then went on to examine “issues pertaining to [an] assessment of fitness to stand trial”. In that regard, Mr McKay accurately reported to Dr Simpson the nature of the charges he was facing, including the section of the Act under which he had been charged. He accurately described the roles of the officers of the court, although he questioned the jurisdiction of the court to try him, “in relation to aspects of history, common-law and spiritual themes”. While he considered himself to be “sound and competent”, he thought others involved in his trial, namely lawyers and the judge, were “unsound and incompetent”.
[58] Dr Simpson also interviewed Mr McKay’s uncle and father. The uncle reported that Mr McKay was “absolutely capable of standing trial”. The uncle said that Mr McKay believed that “all rules that are repugnant to conscience must be struck down and that the supremacy of God should stand above statutes of Parliament”. The uncle further stated that Mr McKay’s views were not “abnormal” but “political views”, views in fact held by some other members of the extended family. He himself apparently “holds similar views to the defendant in relation to the legitimacy of the court”.
[59] Mr McKay’s father stated that his son had “a good brain on him” and that “he isn’t mental”. According to Dr Simpson, the father said:
He stated that [Mr McKay] knows what he is doing, has studied legal issues in prison, and he [the father] has no concerns about him [Mr McKay] in relation to standing trial. He states that “if there is a loophole in there, he will find it”. [The father] acknowledges that the defendant had a breakdown in Australia but states that was because things were different in Australia. He denies any family history of mental illness. He describes his son as the black sheep of the family and that others have not got in the same amount of trouble that he has.
[60] Dr Simpson’s ultimate opinion was that Mr McKay had “a personality disorder and disorder of overvalued ideas where he pursues fixed ideas persistently and excessively”. Dr Simpson was unable to reach a conclusion as to whether Mr McKay had a psychotic illness.
[61] Finally, Dr Simpson observed:
I believe there is evidence that the defendant understands the nature of a plea in general, understands the roles of the officers of the court and can manipulate the understanding regarding the various options available to him. I could not find evidence that he holds delusions with regard to the court or officers of it, but sees himself as being ill-served by counsel and the Court. I note that members of his family either share these views or sees his holding of these beliefs and pursuing them in court as reasonable or typical of him. They do not perceive his unreasonableness as pathological. I note he has also gone through legal processes many times in the past, apparently competently. He has no other mental problems that might give rise to incompetence (such as intellectual disability).
[62] In light of the opinions of Drs Burgess and McCormick and the more circumscribed opinion of Dr Simpson, we are satisfied that the judge was justified in finding Mr McKay fit to stand trial. Having reached that conclusion, the correct course under s 14(4) was to reschedule Mr McKay’s trial, the very thing Judge Joyce did.
[63] It is fair to say, therefore, that, even though Judge Joyce apparently did not consider the Subpart 1 procedure to have been triggered and despite not carrying out a s 9 enquiry, the judge did nonetheless proceed broadly along the lines Subpart 1 required. He correctly accorded Mr McKay all his rights under Subpart 1 (apart from the s 9 enquiry) and correctly reached a conclusion that Mr McKay was fit to stand trial. In those circumstances, we are satisfied there was no miscarriage of justice.
[64] Such deviation from the Subpart 1 procedure as did occur did not render the trial a nullity. The principal defect was the failure to carry out a s 9 enquiry, but there can be, in this case, no doubt what the result of such an enquiry would have been. We leave open whether a deviation from the Subpart 1 procedure can ever render a trial a nullity, and specifically whether the Australian jurisprudence on this topic applies in New Zealand (as to which, see generally Eastman v R (2000) 203 CLR 1).
Should Mr McKay’s election to represent himself have triggered a reappraisal of his fitness to stand trial?
[65] At the start of Mr McKay’s trial, his then counsel argued an application concerning the admissibility of some proposed Crown evidence. After the judge gave his ruling, Mr McKay dismissed his counsel. Why he did that is unexplained. We do not have a record of what then happened. We do know Judge Joyce at 4 o’clock that day went through the standard “Self-Represented Accused – Jury Trial Comments and Cautions” sheet with Mr McKay. It appears the judge had given that sheet to Mr McKay about a month earlier. We are not sure why; perhaps at an earlier callover, Mr McKay had indicated he would or might be defending himself.
[66] Mr Weir submitted that Mr McKay’s decision to represent himself should have caused Judge Joyce to reappraise Mr McKay’s fitness to stand trial. The Act itself does not expressly contemplate reappraisal, but s 16 of the Interpretation Act 1999 provides that powers conferred by enactments and duties and functions imposed by enactments may be exercised or performed more than once. In this case, we do not consider that Mr McKay’s decision to represent himself did trigger the necessity to reappraise his fitness to stand trial. That decision was, after all, entirely in character. The three psychiatrists who had examined Mr McKay back in May and June were well aware of his propensity to sack counsel for what seemed to be no good reason. Notwithstanding that, they had concluded he was fit to stand trial, and such conclusion was not predicated on his being represented by counsel.
[67] That is not to say, however, that Mr McKay’s decision was inconsequential. It did have potential “fair trial” effects, an issue we discuss further below.
Should events at the trial have triggered a reappraisal of Mr McKay’s fitness to stand trial?
[68] Mr Weir next submitted that, even if Mr McKay’s decision to represent himself did not trigger the need to reappraise his fitness to stand trial, his conduct during the trial should have led to a reappraisal. Mr Weir did not highlight any specific incident as providing the trigger for reappraisal; rather, it was the cumulative effect of a number of incidents. We accept that the judge retained power to reappraise Mr McKay’s fitness right through the trial: see the 2003 Act, s 12. But we think the judge was justified in not reappraising in terms of the Subpart 1 procedure.
[69] What Judge Joyce would have been concerned about throughout this trial was whether the trial was fair, given Mr McKay’s decision to represent himself. Courts have ample powers to deal with fair trial concerns. If the judge considered the trial had become unfair owing to Mr McKay’s inability to represent himself sensibly or through mental impairment or for any other reason, he had power to abort the trial. He had power, on any retrial, to appoint an amicus. In an extreme case, he even had power to impose counsel to conduct the defence: see R v Cumming [2006] 2 NZLR 597 at [50] (CA). If this trial had become unfair, then it would have been far preferable to exercise one or more of those powers rather than the somewhat ill‑fitting powers available under the 2003 Act. The 2003 Act has really been drafted with a view to dealing with a defendant unable to instruct counsel. It is less well suited to dealing with a defendant who could instruct counsel but chooses, perhaps foolishly, to conduct his defence himself.
[70] For these reasons, we prefer to analyse Mr Weir’s concerns about the trial in “fair trial” terms. We do not criticise the judge for not re-embarking on the rather clunky Subpart 1 procedure in the middle of the trial. Had he done so, it would inevitably have meant the abandonment of this trial, even though the outcome would almost certainly have been a confirmation of the earlier conclusion that Mr McKay was fit to stand trial.
Was the trial unfair?
[71] Mr Weir submitted that, looked at overall, Mr McKay did not get a fair trial, contrary to s 25(a) of the New Zealand Bill of Rights Act 1990. Before assessing this submission, we should set out what Mr Weir did not challenge:
(a)He did not challenge the admissibility of any of the evidence led by the Crown;
(b)He did not assert the prosecutor had overstepped the mark or been unfair in any way;
(c)He did not assert the judge had erred in any respect, save in so far as he may have erred with respect to “fitness” issues;
(d)He did not assert that Mr McKay had not had the opportunity to put his case;
(e)He could not suggest any defence other than “identity” or “putting the Crown to proof”.
[72] Mr Weir submitted that Mr McKay’s conduct of his defence was so bizarre that the trial became unfair and should have been aborted. The judge’s failure to abort the trial, Mr Weir submitted, led to a miscarriage of justice.
[73] In support of the submission as to bizarreness, Mr Weir relied on two main features. The first was the absurdity of the defence Mr McKay ran. The second was some comments he made during the trial. We shall look at those two matters in turn.
[74] First, the nature of the defence. Mr McKay’s defence was, in effect, that the robberies were in the nature of “an experiment”. Mr McKay told the jury that, when he handed over the notes demanding money, he had no “intention whatsoever to steal anything”, no intention “to rob any of these financial institutions”. Rather, he was testing their systems to see how they responded to demands for money. He emphasised the point that “none of the money given to [him] by each of these banking staff has been spent at all”. He added:
I’ve been where I’ve been [ie in prison] for 25 months, and I have received no communication or any response from the prosecution that these financial institutions seek the return of what is their rightful property, which I refuse to deprive them of. It’s their property. It doesn’t belong to me.
[75] The Crown rebutted this defence by asserting that at least some of the money taken had been spent. Crown counsel also asserted in her closing address to the jury that Mr McKay had not attempted to return the money by or at the time of his arrest and she submitted to the jury that “his stated intention” now to do so was “irrelevant”. Mr McKay, in his closing, responded that the Crown had not established that the money he spent around the time of the robberies was money he had obtained from any of the banks.
[76] Mr Weir submitted that that was an “absurd” defence, which no lawyer would have run. We asked Mr Weir what defence a lawyer would have run. He said “identity”. But how could identity be run as a defence? Not only was the Crown’s case as to Mr McKay being the robber overwhelming, but it is clear from the evidence Mr McKay did give and the submissions he made that he admitted he was the person who made the demands for money at the four banks. The only possible defence that could be run, weak as it was, was the defence Mr McKay did run. Even the most skilled advocate would have had difficulty in making a silk purse from this sow’s ear. This is not a case where, through incompetence, a defendant acting for himself has failed to run a defence arguably open to him. So the nature of the defence run does not cause us to question the judge’s failure to abort the trial (or, indeed, to reappraise Mr McKay’s fitness to stand trial: see above at [69]).
[77] Secondly, there are the odd comments Mr McKay made during the trial. We have found these very difficult to evaluate. No attempt has been made to put expert evidence before us as to the significance of the unusual comments made. They cannot be viewed in isolation. One must also evaluate those parts of the transcript where Mr McKay cross-examined coherently. His own evidence and his closing address to the jury were at times difficult to follow and lacked focus, but we are not satisfied that the impairment of his mind was such as to require the judge to abort the trial. The judge was in fact solicitous about Mr McKay’s position and assisted him to marshal his case. Indeed, it would be fair to observe the judge went much further than what the law generally requires of judges presiding over trials where a defendant has elected to represent himself or herself.
[78] This court in Cumming put the test this way at [50]:
The requirement that the accused is rationally able to understand the proceeding and functionally able to defend it during the trial process must be addressed on the basis of the accused’s capacity to do that adequately in person, rather than merely through communication of instructions to counsel. The accused must have the capacity, albeit at a basic level, to participate directly in the trial through questioning witnesses and communicating the defence to the Court. This test, however, must be applied in a reasonable and commonsense way. The corollary of a finding that an accused person is fit to plead but unfit due to psychological condition or any other reason to exercise the right to represent himself or herself personally at the trial is that the statutory right to self-representation must be denied because the fundamental right to a fair trial will not be upheld if the accused is permitted to proceed to trial without counsel. In overseas jurisdictions this has resulted in the imposition on a defendant of counsel to conduct the defence. Before reaching that extreme position the trial Court must look at available means of accommodating all rights. One way of doing so may be to follow the course of appointing as an amicus a counsel whose role is to be available at the trial to assist the accused.
[79] We have also considered what the Supreme Court said in R v Condon [2007] 1 NZLR 300 at [81]‑[82]:
[81] At the outset of its consideration of fairness the appeal Court must make a determination concerning the circumstances in which the accused came to be tried without a lawyer. That is because if the appellant has been denied a reasonable opportunity of legal representation, the onus will be on the Crown to satisfy the Court that in all the circumstances the absence of representation did not result in an unfair trial. Bearing that in mind, the Court must carefully consider what occurred at the trial and during the earlier period when the accused was preparing to conduct the defence.
[82] The Court should examine the manner in which the Judge presided over the trial, especially whether the Judge clearly explained the Court procedures to the accused and thereby minimised the disadvantage of being unfamiliar with the trial process and with rules of evidence. It will be relevant also whether the accused had the benefit of guidance from a lawyer or an amicus at any time prior to or during the trial. The Court must have regard to the personal characteristics of the appellant such as level of intelligence and education, previous experience in a courtroom and ability to express him or herself clearly and sensibly in that setting. It must look to see whether the case involved any difficult legal issues or had other complexities which might have benefited from analysis by a trained legal mind. It should also look at the nature of the Crown case and at how effectively the accused in fact managed to convey the nature of the defence in cross-examination of Crown witnesses, examining defence witnesses, giving evidence (if the accused chose to do so) and addressing submissions to the Court. Mason J pointed out in McInnis that the calibre of the accused’s forensic performance is a relevant, but not a critical, factor in the determination of fairness. The appeal Court should not be too ready to conclude from a reading of the transcript that the defence has been conducted as competently as counsel, with professional skill and detachment, would likely have done. A transcript does not necessarily convey the full atmosphere of the courtroom and in particular the demeanour of the accused before the jury. A fortiori, if the full transcript, including addresses, is not available.
[80] Applying those authorities, we make the following observations. First, Mr McKay chose not to have legal representation at the trial; this is not a case where he had been “denied a reasonable opportunity of legal representation”. He had had the assistance of counsel prior to trial.
[81] Secondly, we have examined “the manner in which the judge presided over the trial”. Judge Joyce, who is a very experienced trial judge, went out of his way to assist Mr McKay. He did explain court procedures to Mr McKay. Mr McKay had been through many trials before. He was familiar with the trial process. The rules of evidence appear to have created few problems in this case. (As noted above, Mr Weir does not challenge the admissibility of any of the evidence led by the Crown.) This is not a case which involves “difficult legal issues”, save for fitness to stand trial, which had been dealt with while Mr McKay still had legal representation.
[82] Next, we look at “the nature of the Crown case and at how effectively the accused in fact managed to convey the nature of the defence”. This consideration sets this case apart from Cumming and Condon. Mr McKay had no effective defence and, as stated above, his counsel even now cannot suggest one. This is very material in our view, as it will be rare for a trial to be declared unfair if in truth there is no defence available. The defence, such as it was, was put adequately enough, particularly by the judge in his summing-up to the jury.
[83] We conclude that Mr McKay’s trial was fair. The judge did his best to ensure overall fairness to each side. We are satisfied he achieved a satisfactory balance and ensured that Mr McKay’s “fair trial” rights were met.
Outcome of this appeal
[84] For the reasons given, we are satisfied Mr McKay’s appeal must be dismissed.
What should trial judges do if a question of fitness to stand trial arises between committal and the trial?
[85] We now turn to the first of the supplementary questions we said we would answer in an attempt to provide assistance to trial judges.
[86] Section 10 of the 2003 Act sets out the procedure “if a defendant is proceeded against summarily”.
[87] Section 11 of the 2003 Act, as originally enacted, set out the procedure in cases where the defendant was being proceeded against indictably. The original s 11 was repealed with effect from 29 June 2009 and a new s 11 has been substituted. The amendment has been required as a consequence of the new committal regime implemented by the Summary Proceedings Amendment Act (No 2) 2008. Under the new regime, a committal hearing will not necessarily take place. A person may now be committed for trial on the papers, without a hearing being required. The original section had its drafting difficulties; unfortunately, the amendment, far from removing them, has added some new ones. The new s 11(1) reads:
This section applies if committal hearings under Part 5 of the Summary Proceedings Act 1957 are required.
[88] Under the new committal procedure, committal hearings are rarely required. That would suggest that s 11 of the 2003 Act will also rarely apply. But it is clear from the balance of the new s 11 that it is also intended to apply in circumstances where there is no committal hearing. Subsection (1) is not to be read literally.
[89] Where a question of a defendant’s fitness to stand trial arises prior to committal, s 11 sets out the procedure to be followed. The section is not at all easy to apply, as ss 11, 13, and 14 do not dovetail neatly with the new committal regime. We do not comment further on this, however, as we have not had submissions on that particular topic.
[90] But what happens if the question as to fitness to stand trial arises after committal but before trial? Section 11 does not apply in that situation. But nor does s 12, at least if read literally. Section 12 is concerned with the situation where the question of the defendant’s fitness to stand trial “is to be determined in the course of a trial”. As it happens, the question as to Mr McKay’s fitness to stand trial arose after committal but before trial, but, fortuitously, it arose so close to trial that Judge Joyce was able to deal with the question on what would have been the first day of the trial. Accordingly, the issue we are presently discussing was avoided. But what happens if the question arises shortly after committal? Do the parties have to wait until the trial begins before the question can be determined?
[91] We do not consider that can have been the Parliamentary intention. The suggestion that the court lacks jurisdiction between committal and trial is inconsistent with s 7(1), which provides that “a court may make a finding under this subpart that a defendant is unfit to stand trial at any stage after the commencement of the proceedings and until all the evidence is concluded”(emphasis added). We see no reason to read down “stage”. It would be absurd if the parties had to wait until trial before the question could be determined. It would be quite pointless to assemble a jury, only for it then to be discharged straightaway while the court undertook the Subpart 1 procedure. That is, in fact, what happened in Mr McKay’s case owing to the late raising of the fitness question. But no one could sensibly suggest that this must be or should be the procedure when a fitness question arises many months before the scheduled trial date.
[92] We think this is a plain case where the courts are required to fill in gaps in the statute so as to make the legislation work: see generally Burrows and Carter Statute Law in New Zealand (4ed 2009) at 212‑213. The classic authority is Northland Milk Vendors Association Inc v Northern Milk Limited [1988] 1 NZLR 530, where Cooke P, for this court, said at 537‑538:
Courts must try to make the Act work while taking care not themselves to usurp the policy-making function, which rightly belongs to Parliament. The Courts can in a sense fill gaps in an Act but only in order to make the Act work as Parliament must have intended … The present case is in our opinion another illustration of a hiatus which the Court can legitimately and should bridge.
[93] See to similar effect Zaoui v Attorney-General (No 2) [2006] 1 NZLR 289 at [69]‑[70] (SC).
[94] Section 12(1) reads:
If the question whether the defendant is unfit to stand trial is to be determined in the course of a trial, the court must ascertain whether it is satisfied of the matter specified in section 9.
[95] In our view, that subsection, viewed in the context of the statute as a whole, should be construed as if it read:
If the question whether the defendant is unfit to stand trial arises after committal or in the course of a trial, the court must ascertain whether it is satisfied of the matter specified in section 9.
[96] By reading the subsection in that way, we avoid a gap in the procedure which Parliament can never have intended.
[97] In terms of s 12(2), where the court does deal with the question after committal but before trial, the court may:
(a)consider any evidence presented for the purposes of the standard committal or at the committal hearing;
(b)rehear any of the evidence presented for the purposes of the standard committal or at the committal hearing;
(c)hear any new evidence.
[98] The court will then proceed in terms of s 13 and 14.
When do ss 16 and 17 apply?
[99] Sections 16 and 17 of the 2003 Act are also problematic. They read as follows:
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 1 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
(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.
[100] The question arose in the present case as to whether those sections applied to Mr McKay’s appeal. His appeal against conviction, although challenging Judge Joyce’s decision that Mr McKay was fit to stand trial, was made under s 383 of the Crimes Act. Mr Weir’s submission was that the appeal should be allowed under s 385(1)(c) (“there was a miscarriage of justice”) or under s 385(1)(d) (“the trial was a nullity”). The reason it was said there was a miscarriage of justice was, however, Mr McKay’s alleged unfitness to stand trial. Did that cause ss 16 and 17 to be engaged as well?
[101] Although ss 16 and 17 do not expressly so state, we think Parliament must have intended those sections to apply only prior to conviction. They will primarily apply where the Subpart 1 procedure has been activated prior to trial and an appeal is then brought prior to trial. In rare cases, they could also be utilised by a defendant who, in the course of trial, is declared unfit to stand trial, a conclusion with which the defendant for some reason is unhappy. After conviction, however, the appropriate appeal pathway is not ss 16 and 17 but rather s 383 of the Crimes Act (in the case of an appeal against conviction on indictment) and s 115 of the Summary Proceedings Act (in the case of an appeal against conviction in the summary jurisdiction).
[102] That ss 16 and 17 must be implicitly restricted in this way is clear, we think, from several provisions in the Act. First, s 17(5), which mandates the court must remit the case to the High Court or the District Court “if the result of the appeal is that the appellant is fit to stand trial”, simply does not make sense in the post-conviction situation. Secondly, s 17(1) and (2) also make little sense post-conviction.
[103] We think, however, there is one respect in which the ss 16‑17 appeal procedure may influence a post-conviction appeal based on fitness to stand trial. Somewhat unusually, s 17 provides that, on a s 16 appeal, the court must give the parties “an opportunity to be heard and to present evidence as to whether the appellant is unfit to stand trial”. That provision is unusual in that most appeals proceed on the basis of the evidence presented in the lower court. On appeals under s 383 of the Crimes Act, the appellant does not have a right to present evidence; the power of appellate courts to receive further evidence is a matter of discretion, a discretion fairly circumscribed by long-standing authority. Since on a s 16 appeal an appellant has a right to present evidence as to whether he or she is unfit to stand trial, it is likely, we think, that on a post-conviction appeal an appellate court will be liberal in the exercise of its discretion to receive further evidence on this topic. The point did not arise in the present case as Mr Weir did not seek to put before us any fresh evidence.
[104] We hope the trial courts and lawyers will derive some assistance from our views on these two supplementary topics.
Solicitors:
Crown Law Office, Wellington
28
4
0