P v Police HC Auckland CIV 2006-404-203
[2006] NZHC 1681
•14 September 2006
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ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS OR PARTICULARS IDENTIFYING APPELLANT.
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2006-404-203
P
Appellant
v
NEW ZEALAND POLICE
Respondent
Hearing: 20 July and 9 August 2006
Counsel: A Simpson for Appellant
M R Heron (9 August 2006) and M R Harborow (20 July 2006) for
Respondent
Date: 14 September 2006 at 4.45 pm
REASONS FOR JUDGMENT OF BARAGWANATH J
This judgment was delivered by Justice Baragwanath on 14 September 2006 at
4.45 pm pursuant to Rule 540(4) of the High Court Rules
Registrar/Deputy Registrar
Date:………………………
Solicitors:
Crown Solicitor, Auckland
Counsel:
Mr A Simpson, Auckland
P V NEW ZEALAND POLICE HC AK CRI-2006-404-203 [14 September 2006]
Table of Contents
Para No.
The decision [1] Context of appeal [2] Perspective [8] The test of unfitness to stand trial [12]
The MIPA [12] The common law [16] The Australian approach [24] The USA [25] Scotland [27] Canada [28]
The evidence before the District Court [31] The issues [33] The decision of the District Court [34] The evidence before this Court [36] Decision [44] Consequences [48] Comment [52] Orders [55]
The decision
[1] At the conclusion of the hearing of this appeal on 9 August 2006 I made orders, with reasons to follow:
a)that the appeal be allowed and a finding pursuant to s 14(2) of the Criminal Procedure (Mentally Impaired Persons) Act 2003 that the Court is satisfied on the evidence of the health assessors Drs Fernandez, Sakdalan and Seth that the appellant is mentally impaired and that he is unfit to stand trial.
b)under s 23(1) of the Criminal Procedure (Mentally Impaired Persons) Act 2003 that enquiries be made to determine the most suitable method of dealing with the appellant under s 24 or s 25. Pursuant to s 23(2)(a) it is a condition of bail that the appellant go to 31 Teelin Place, Chapel Downs, Manukau.
c)for suppression of the appellant’s name and of particulars that might tend to identify him.
Context of appeal
[2] The doctrine of fitness to plead has always been a confused area of law in New Zealand and elsewhere.1 That is because of what may be expressed as a trilemma. First, that society must be protected from antisocial conduct and a major means of doing so is the criminal law, so the threshold for criminal competence has been kept low.2 Second, that the developing recognition of the entitlement of every person to be treated with dignity3 requires that individual autonomy to make and be answerable for decisions be respected as far as practicable. Findings of lack of autonomy and fitness to plead are not lightly made.4 Thirdly, that the same right to dignity requires that both criminal liability and liability to face trial be in ratio to competence to make relevant decisions, so the test of fitness must not be too high.5
[3] The combined result of the enactment of the Criminal Procedure (Mentally Impaired Persons) Act 2003 (MIPA),6 which drew upon the advice of Professor Brookbanks, a perceptive essay by the Professor as to its significance,7 and the evidence on this appeal of five expert witnesses, has been to remove much of the confusion, at least for the purposes of deciding this case. In the result, the Crown does not oppose the appellant’s challenge to the decision of the District Court that he
is fit to plead and an order allowing the appeal was made at the conclusion of argument. The decision to depart from the careful judgment of the District Court, which had been supported by the Crown, is the result of much greater assistance by way of both evidence and legal analysis than was available to that Court.
[4] It is common ground that the District Court was right to find, in what has conveniently been called “an involvement hearing” under s 9 MIPA, that the
1 Warren Brookbanks A Contemporary Analysis of the Doctrine of Fitness to Plead [1982] Recent
Law 84.
2 R v Power CA 187/96 22 October 1996.
3 I endorse the view that human dignity, recognised by the preamble of the International Convention on Civil and Political Rights, is presumed to be a fundamental human right. See Butler and Butler The New Zealand Bill of Rights Act: a Commentary (2005) p250.
4 R v Power.
5 R v Bridger [2003] 1 NZLR 636 (CA), 648 [42]: “…the law must give full weight to the principle that criminal punishment has an essentially moral base and lesser moral fault requires recognition”.
6 And also the companion Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003.
7 The New Regime of Criminal Procedures and Compulsory Care Governing Mentally Impaired and
Intellectually Disabled Persons New Zealand Law Society 2004.
appellant P “caused the act… that forms the basis of the offence with which [he was] charged”, namely being party to the aggravated robbery in July 2004 of a superette in Otara. He was one of three masked youths, the other two each armed with a knife, who robbed the shopkeeper of cigarettes which the appellant put into a bag and removed. The shopkeeper struggled with one of the other youths in an attempt to rescue his property; from his standpoint and that of his wife and daughter it was a deeply disturbing breach of the criminal law. There is no evidence to suggest that the arresting officer, who followed the appellant to his home, acted unreasonably in any way in administering the conventional Bill of Rights warning and taking a statement from him. The appellant’s account was of such specificity that the learned District Court judge was satisfied that it demonstrated such evidence of fitness to plead as to warrant rejecting the reports and oral evidence of two psychiatrists and a psychologist that he was unfit to plead.
[5] Section 17(3) MIPA requires this Court on appeal to consider the evidence of two health assessors and confirm or quash the District Court’s finding. I respectfully agree with the decision of MacKenzie J in S v Police HC PN CRI-2005-454-047
8 December 2005 that it is competent for this Court to rely for that purpose on evidence given in the District Court. As the reports dated from 2004 and the cross-examination upon them had been concise, I directed that updated reports be obtained.
[6] I heard oral evidence from the three health assessors whose reports and evidence were before the District Court: Drs Fernandez and Seth, consultant psychiatrists and Dr Sakdalan, psychologist. I also heard from two intensive service co-ordinators, Ms Blainey of the Regional Intellectual Disability Care Agency and Ms Tasi-Perez of the Regional Forensic Psychiatry Service. They were treated as witnesses of the Court and at counsel’s request I undertook the initial questioning. The panel or “hot tub” technique of swearing all witnesses concurrently and moving from witness to witness as issues arose proved convenient. At the conclusion of my questions Mr Heron found it unnecessary to examine: Mr Simpson did so briefly and helpfully.
[7] I express my gratitude to the experts and to counsel for their assistance.
Perspective
[8] The appellant although 19 years of age has a mental age of 6 and an IQ of 58 with a confidence interval of 55-63.
[9] The Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003 (CCRA) contains a useful definition which the experts accepted as relevant to the MIPA:
7 Meaning of intellectual disability
(1) A person has an intellectual disability if the person has a permanent impairment that—
(a) results in significantly sub-average general intelligence; and
(b) results in significant deficits in adaptive functioning, as measured by tests generally used by clinicians, in at least 2 of the skills listed in subsection (4); and
(c) became apparent during the developmental period of the person.
…
(3) For the purposes of subsection (1)(a), an assessment of a person's general intelligence is indicative of significantly sub-average general intelligence if it results in an intelligence quotient that is expressed—
(a) as 70 or less; and
(b) with a confidence level of not less than 95%. (4) The skills referred to in subsection (1)(b) are—
(a) communication: (b) self-care:
(c) home living: (d) social skills:
(e) use of community services: (f) self-direction:
(g) health and safety:
(h) reading, writing, and arithmetic:
(i) leisure and work.
[10] P has impairment in all nine of the subsection (4) categories and is unable to function on his own in the community without assistance.
[11] Unsurprisingly, Dr Sakdalan advised that prisoners will on average tend to be within the borderline to below average range of intellectual functioning. Overseas studies report that 1% of the criminal justice population would be below 70 in terms of IQ. A New Zealand study by Sharon Brandford estimated that between 0.3 and
0.6% of prisoners have an IQ below 70. Dr Sakdalan considered that those within that range more or less fit the s 7(4) criteria for intellectual disability.
The test of unfitness to stand trial
The MIPA
[12] The purpose of the MIPA is stated in s 3:
3 Purpose
The purpose of this Act is to restate the law formerly set out in Part 7 of the Criminal Justice Act 1985 and to make a number of changes to that law, including changes to—
(a) provide the courts with appropriate options for the detention, assessment, and care of defendants and offenders with an intellectual disability:
(b) provide that a defendant may not be found unfit to stand trial for an offence unless the evidence against the defendant is sufficient to establish that the defendant caused the act or omission that forms the basis of the offence:
(c) provide for a number of related matters.
[13] Where the Court finds a defendant unfit to stand trial it must under s 23
MIPA order inquiries to determine the most suitable method of dealing with that person under s 24 or s 25. The former requires the Court to consider whether the detention of the defendant is required either in a hospital as a special patient under the Mental Health (Compulsory Assessment and Treatment) Act 1992 (CATA) or in
a secure facility as a special care recipient under the CCRA. If the Court is not satisfied that such order is necessary it must under s 25 deal with the defendant by ordering that the defendant be treated as a patient under the CATA; or that the defendant be cared for as a care recipient under the CCRA; or, if the person is liable to be detained under a sentence of imprisonment, by deciding not to make an order; or by ordering the immediate release of the defendant.
[14] “Unfit to stand trial” has replaced “under disability” as the legal standard for trial competence in New Zealand. Section 4(1) of MIPA defines unfitness to stand trial:
unfit to stand trial, in relation to a defendant,—
(a) means a defendant who is unable, due to mental impairment, to conduct a defence or to instruct counsel to do so; and
(b)includes a defendant who, due to mental impairment, is unable— (i) to plead:
(ii) to adequately understand the nature or purpose or possible consequences of the proceedings:
(iii) to communicate adequately with counsel for the purposes of conducting a defence.
[15] A crucial question is the meaning of “adequately” in subclauses (ii) and (iii). An explanatory note to a Supplementary Order Paper to the Bill noted an amendment to restrict the meaning of “unfit to stand trial” by removing from its ambit defendants who, because of mental impairment, are unable to make an informed decision whether or not to give evidence. That test was not included in the MIPA. But it was not suggested that such omission casts particular light on the language that Parliament has retained.
The common law
[16] It is natural in order to gauge the effect of the new Act to consider the pre-existing law. The common law was stated by Alderson B in summing up in R v Pritchard (1836) 7 Car & P 303, 304:
The question is, whether the prisoner has sufficient understanding to comprehend the nature of the trial so as to make a proper defence to the charge.
The issue was and is the meaning of “sufficient” (now “adequate”). Alderson B
directed the jury to consider:
Whether he is of sufficient intellect to comprehend the course of proceedings on the trial, so as to make a proper defence – to know that he might challenge any of you to whom he may object – and to comprehend the details of the evidence, which in a case of this nature must constitute a minute investigation… if you think that there is no certain mode of communicating the details of the trial to the prisoner, so that he can clearly understand them, and be able properly to make his defence to the charge; you ought to find that he is not of sane mind. It is not enough, that he may have a general capacity for communicating in ordinary matters.
[17] The common law authorities have been applied in the construction of the former New Zealand legislation. In R v Carrel (1991) 8 CRNZ 220 defence counsel submitted, over the objection of his client, that the accused was unfit to plead. Heron J was required to construe s 108 of the Criminal Justice Act 1985 which provided:
(1) For the purposes of this part of this Act, a person is under disability if, because of the extent to which that person is mentally disordered, that person is unable
(a) To plead; or
(b) To understand the nature or purpose of the proceedings; or
(c) To communicate adequately with counsel for the purposes of conducting a defence.
[18] Construing “adequately”, Heron J endorsed the application of the Pritchard test. He accepted the gloss upon it by the English Court of Appeal in R v Robertson (1968) 52 Cr App R 690 applied by Lane LJ in R v Berry (1978) 66 Cr App R 156 at p 158:
The mere fact that the jury may think that the accused is not capable or acting in his best interests is insufficient to entitle the jury to decide that he is unfit to stand trial.
[19] That approach was endorsed by the Court of Appeal in R v Power CA 187/96
22 October 1996, cited by that Court in R v Cumming [2006] 2 NZLR 597, 610 para [44]:
A high threshold of fitness, including a best interests component, would derogate from the fundamental principle that accused persons are entitled to choose their own defences and to present them as they choose.
[20] There is however a logical difficulty with this approach, because entitlement to choose implies capacity to do so. It is to be noted that Robertson and Berry were cases where the accused had opposed a finding of unfitness, no doubt because of the consequences of commitment to a mental institution. In Power the contention of unfitness was not made until the Court of Appeal, while in Cumming the issue did not require determination.
[21] In England where the defence applies for such a finding the law imposes a burden on it to establish on the balance of probabilities that the accused is unfit: R v Robertson. Where the prosecution applies its onus is beyond reasonable doubt: R v Podola [1960] 1 QB 325. In New Zealand (MIPA s 14(3)) the test for each is the balance of probabilities.
[22] It follows that in each jurisdiction, although less in New Zealand than in England, the Court may have to accept and manage some tolerance of doubt as to fitness where the defence has successfully resisted a finding to that effect. But it does not at all follow that the Court will inflict on an accused a requirement to stand trial where it is he who relies on credible evidence that he is unable rationally to look after his best interests.
[23] The common law test stated in Robertson, importing acceptance of some degree of irrationality on the part of the accused in cases where the defence has resisted a finding of unfitness, must now be viewed in the light of R v Friend [1997]
1 WLR 1433 (CA). In that case, while citing Robertson on the separate issue of onus of proof, Otton LJ has re-expressed the common law test as being whether the accused could “understand and reply rationally to the indictment…whether he would be able to exercise his right to challenge jurors, understand details of the evidence as it is given, instruct his legal advisers and give evidence himself if he so desires”.
There is no acceptance of the Robertson gloss. As will appear, this new development in English common law bears some similarities to the test in the United States.
The Australian approach
[24] In his Law Society paper Professor Brookbanks points out that subsection (b) of the definition of “unfit to stand trial” sets out, as examples, factors which, if present, will result in a finding that the person is unfit to stand trial. The criteria, he emphasises, are not prescriptive. He argues that the new formula has been drafted purposively to allow the Courts a measure of latitude in taking into account other factors which have not been specifically expressed in the legislation but draws attention to the omission of inability to make an informed decision whether or not to give evidence. He draws attention to the list of incapacities identified by Smith J in R v Presser [1958] VR 45 at 48, later approved by the High Court of Australia in R v Ngatayi (1980) 147 CLR 1 at 8, and now contained in s 68(3) of the ACT Mental Health (Treatment & Care) Act 1994:
…whether the accused was capable of:
(a) understanding what it is that he has been charged with;
(b) pleading to the charge and exercising his right of challenge;
(c)understanding that the proceedings before the Supreme Court would be an inquiry as to whether or not he did what he was charged with;
(d) following, in general terms, the course of the proceeding before the
Court;
(e)understanding the substantial effect of any evidence given against him;
(f) making a defence to, or answering, the charge; (g) deciding what defence he would rely on;
(h) giving instructions to his legal representative (if any); and
(i)making his version of the facts known to the Court and to his legal representative, if any.
The USA
[25] Professor Brookbanks points to other international developments. In Dusky v
US 362 US 404 (1960) the Supreme Court required a defendant to have:
sufficient present ability to consult his lawyer with a reasonable degree of rational understanding – and whether he has a rational as well as a factual understanding of the proceedings against him.
(Emphasis added)
[26] Professor R Bonnie in “The Competence of Criminal Defendants: Beyond Dusky and Drope” (1993) 47 Miami LR 536, 554 argued that a rational understanding element would also require that the defendant have “capacity to appreciate one’s situation as a defendant in a criminal proceeding”. Such a requirement, if adopted into the common law of unfitness to be tried, goes somewhat further than the minimalist criteria specified in the definition of “unfit to stand trial”. Professor Bonnie distinguishes between the foundational notion of “competence to assist counsel” and the contextualised notion of “decisional competence”. A defendant who is provisionally competent to assist counsel may lack competence to make specific decisions likely to be encountered as the trial process unfolds. Thus competence is measured, not simply by an accused’s ability to form cognitive tasks (for example understand who the Judge or prosecutor is, know what a lawyer is and be able to communicate with counsel and know that he is facing a criminal charge in a court) but also the ability to understand and choose amongst alternative causes of action.
Scotland
[27] The Scottish Law Commission Discussion Paper on Insanity and Reduced Responsibility (Discussion Paper No. 122 2003) at para 4.32 has advocated a test of trial competence based on the accused’s ability to participate “effectively” in the proceedings against him. The Royal Court of Jersey in Attorney-General v O’Driscoll (unreported 9 July 2003) has favoured the Scottish notion of “effective participation” which it considered to be consistent with European court jurisprudence and developments in modern medical science.
Canada
[28] In Demers v R [2004] 2 SCR 489 the Supreme Court of Canada considered the case of a 21 year old suffering from Downs Syndrome which caused him to be moderately intellectually handicapped. He was found unfit to stand trial on charges of sexual assault. He was granted a discharge under the provisions of the Quebec Criminal Code but subject to the condition that he live with his family, keep the peace and establish a consensual treatment regime together with his parents and medical professionals. He claimed that the statutory provisions authorising the conditions were unlawful as in violation of his rights under s 7 of the Canadian Charter of Rights and Freedoms providing:
Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
[29] The Supreme Court relied upon the principle of fundamental justice that criminal legislation must not be over-broad: R v Heywood [1994] 3 SCR 761. The Supreme Court concluded that the legislation failed to deal fairly with the permanently unfit accused who are not a significant threat to public safety. Society’s interest in bringing accused persons to trial cannot be accomplished, nor can society’s interests in treating the accused fairly. The regime fails to provide for an end to the prosecution. Permanently unfit accused are subjected to indefinite conditions on their liberty, of varying degrees of restrictiveness. The Supreme Court declined simply to strike down the legislation as to do so would create a lacuna in the regime before Parliament would have a chance to act. Instead it held that the appropriate remedy was a suspended declaration of invalidity for a period of
12 months. If after 12 months Parliament had not cured the unconstitutionality of the regime, an accused who qualified could ask for a stay of proceedings.
[30] The case may be relevant to the Court’s exercise of judgment under s 27
MIPA (whether to grant a stay) and s 46 CCRA (term of compulsory care order) to be considered at the next stage of the process.
The evidence before the District Court
[31] At the involvement hearing Detective Constable Higson deposed to have visited P’s home on the day of the robbery. He agreed to accompany the officer to a police vehicle. The officer told P that he was not under arrest. The officer gave him a Bill of Rights warning and the short caution which P said he understood. The note of the interview is as follows:
IS: Tell me who did what at the shop.
HS:I ran into the shop and went past the girl. I went behind the counter and grabbed the smokes. I put the smokes into a school bag and then I ran back out of the shop.
IS: Where was your cousin? HS: He was stood near the girl.
IS: Where was your brother?
HS:He was in front of the counter. The man hit him with something when we ran away.
IS: What were you wearing? HS: The white hoodie.
IS: What else? HS: Grey pants.
IS: Is this the hoodie (shown exhibit VR04/529). HS: Yeah.
IS: Where are your pants?
HS: In the laundry at my mum’s.
IS: Who had a knife?
HS: My cousin and my older brother.
IS: Where are the knives now? HS: I don’t know.
IS: Who had the idea to do this? HS: It was my cousin.
IS: Where did they get the knives from? HS: From my house, Geraldine.
IS: So did you all go together from Geraldine to the dairy? HS: Yeah.
IS: So you knew they had taken the knives with them? HS: Yeah.
IS: What were you wanting to get from the shop?
HS: Just the smokes.
IS: What sort of bag did you have? HS: Schoolbag, normal bag.
IS: Like a rucksack? HS: Yeah.
IS: Where is that now?
HS: I gave it to my older brother.
IS: Where did you go when you ran away from the dairy? HS: We ran down the main road, then we split up.
IS: Where did you go? HS: Straight to my house.
IS:What were you going to get from the job tonight, what was your share?
HS: Just money.
IS: Explain how you would get money?
HS: Sell the smokes to people, then get money.
IS: So how many packets of smokes did you take? HS: The bag was about half full.
IS: Who was wearing something over the face? HS: All of us.
IS: What were you wearing? HS: A beanie.
IS: Where is that now?
HS: I gave it to my brother.
IS: Who had their beanie pulled off? HS: It was my older brother.
IS: Tell me what the knives looked like. HS: Like chopping knives.
IS: How big were they?
HS: (demonstrated one was about 5” long, one about 7” long)
IS: Where are the knives now?
HS: I don’t know, can I talk to a lawyer now?
IS:Yes, I will just read over these notes to you whilst we are waiting for the phone.
I then read the notes to the ACCUSED who agreed that they were true and accurate. He signed my notebook to that effect.
The ACCUSED then spoke with the duty lawyer.
IS:I would like to speak to you about another robbery at the same dairy last month. Are you willing to answer questions about this?
HS: No.
IS: I am arresting you for aggravated robbery. I repeated his ‘Bill of
Rights’ and gave the Caution. Do you understand? HS: Yeah.
[32] At the subsequent fitness hearing the defence relied on reports by Drs Fernandez, Seth and Sakdalan, each of whom expressed the opinion that P was not fit to stand trial and affidavits by his former counsel. When P was interviewed on
22 July 2004 and 10 August 2004 by his former counsel Mr Borich, an experienced and respected criminal barrister, Mr Borich expressed concerns about P’s level of understanding and felt a psychiatric report should be obtained. Mr Borich passed the brief to Mr Earley who met P on 14 September 2004 and gained the impression that P simply could not understand the questions being asked. At the District Court on
9 December 2004 after P had been arrested on further charges Mr Earley found that P was able to follow the police summary, agreeing or disagreeing with its contents. P was unable to answer any more complex questions. Mr Earley formed the opinion that he could not give instructions to concede the point of involvement or to admit the prosecution briefs. He applied for and was granted leave to withdraw in favour of Mr Simpson.
The issues
[33] There are two questions. The first is of mental impairment. The second is of unfitness to stand trial because of such impairment.
The decision of the District Court
[34] Judge Holderness was satisfied by the medical evidence that P has mental impairment. Counsel had submitted that the Judge should act on the uncontradicted medical evidence that he was unfit to stand trial. The Judge accepted the prosecution submission that the answers to the detective constable demonstrated an apparently clear level of recollection and understanding of what had occurred at the dairy, what
part P had played, what he had been wearing, what involvement the others he was with had had, what occurred after they left the shop, what was the purpose of the alleged offence, how long the knives were and what was their character.
[35] The Judge found that P was able to understand the advice he received from the lawyer he spoke to by telephone and in declining to answer further questions was able to act on that advice and to resist the detective’s indication that he wanted to continue the interview. The Judge considered that these answers during the interview pointed clearly to an ability to consider his position while based on the advice he had received and an adequate ability to communicate and explain why he had become involved. He accepted the prosecution’s submission that P’s performance during the interview did not entirely bear out the conclusion reached by the medical experts. He was satisfied that P’s capacity was above the threshold. He found on the balance of probabilities that P was fit to stand trial
The evidence before this Court
[36] Drs Fernandez and Seth are experts in forensic psychiatry. They did not claim particular expertise in this specialised field of intellectual disability on which the new law turns. Dr Sakdalan is a psychologist and a specialist in the area of intellectual disabilities.
[37] In their written and oral evidence the experts were unanimous that the appellant is to be characterised rather as a victim than an offender. Dr Seth described him as a vulnerable young man because of his intellectual disability, tending to go along with what his peers might say or suggest, and not really able to think through the consequences.
[38] Dr Fernandez said that people with intellectual disability are always quite good at providing a narrative of what happened, at least shortly after the event, as occurred in the appellant’s statement to the constable which influenced the Judge. But he lacks capacity for the abstract thinking required when it comes to making choices. Dr Sakdalan agreed with the detective constable that at the time he was interviewed the appellant might have had a good recollection of the events before the
Court, but when Dr Sakdalan assessed him on 16 November 2004 and 28 July 2006, his recollection of the events the subject of the charges was very poor. Dr Sakdalan distinguished between the appellant’s ability retrospectively to recall over a short time and the ability, looking at the matter prospectively, to do justice to himself in court.
[39] Dr Sakdalan expressed concern about P’s capacity to understand the rights read to him by the constable, advising that the acknowledgement that he understood his rights could be attributed to a readiness of persons with intellectual disabilities to tend to agree over-readily even if they have not fully understood what has been said. Dr Sakdalan accepted the analogy from the law of wills as to the desirability of an interviewer’s getting feedback or response from a geriatric to indicate whether a point has been fully understood. Dr Sakdalan advised that the appellant has a rudimentary understanding of the concepts of guilty or not guilty and of what is right and wrong but is easily confused with that concept and the difference between what he has done and the concept of a guilty and not guilty plea.
[40] He was of the opinion that the appellant continues to present with severe cognitive defects and mental impairment, reducing his ability to provide reliable information in defence before the court, process the information provided to him by his lawyer and to understand clearly the nature or purpose or possible consequences of the proceedings and be able to communicate adequately with his lawyer for the purpose of mounting a defence. His mental impairment is permanent.
[41] Dr Sakdalan expressed concern that the appellant’s intellectual disability and his offending were related in that he could be easily led by peers to engage in criminal behaviour. While not all people with intellectual disabilities are unfit to stand trial in this case the appellant exhibited severe cognitive impairment and could not actually participate meaningfully in the court process.
[42] Dr Sakdalan advised that the appellant tends to confuse what he has been charged with and what he has actually done.
[43] The experts were agreed both that the Australian criteria are pertinent to the assessment of fitness to stand trial and as to the assessment I must make as to P’s fitness in this case. I respectfully agree that the list, which is more discriminating than the simple single issue of Pritchard, is consistent with and illuminates both the definition in s 4(1) MIPA ([14] above] and the test of s 7 of the CCRA ([9] above) which provides helpful examples. In terms of that list:
a)P has a marginal ability of understanding what he has been charged with. Dr Seth emphasised P’s difficulty with abstract thinking;
b)he would have an adequate rudimentary understanding of right and wrong in order to be able to plead, could not effectively exercise his right of challenge. Dr Fernandez found P quite confused;
c)(P’s understanding of the proceedings before the Court and whether he did what he was charged with) the three experts considered that his difficulty with conceptual problems would make his subjection to the proceedings effectively a mechanistic rather than informed process;
d)(ability to follow in general terms the course of the proceeding) and (e) (understanding the substantial effect of any evidence given), a similar comment is made;
e)(making a defence to answering the charge) the experts were clear that the appellant could not make a defence nor answer to the charge because he could not participate meaningfully in the trial;
f) (deciding what defence he would rely on) was not separately discussed; and
g)(giving instructions to his legal representative) and (i) (making his version of the facts known to the Court) the experts advised that the account given to the police was rudimentary and the case was
borderline but his suggestibility presented risk of supply of false
information.
Decision
[44] New Zealand now has a new, comprehensive and sensitive legislative regime. It will be for others to deal with further issues as they arise; my function is to give reasons for the decision in this case.
[45] The onus is on P as proponent to establish unfitness. One should go straight to s 4 MIPA and s 7 CCA. In doing so regard may be had both to the set of questions contained in s 68(3) of the ACT statute and to the opinions of the expert witnesses.
[46] As to the first question, it is common ground that P is mentally impaired. The evidence to that effect is overwhelming.
[47] As to the second question, the Crown accepted that on the unanimous evidence of the experts the conclusion is inevitable that P is unfit to stand trial. On the unanimous evidence of the experts I agree with that conclusion. The appeal was therefore allowed.
Consequences
[48] It followed that this Court was required by s 23(1) to order that enquiries be made to determine the most suitable method of dealing with P under ss 24 and 25. I so ordered. Conditions of bail were imposed in terms of s 23(2). Section 23(5) required that P was also to be assessed under Part 3 of the CCARA (ss 15 ff). Ms Tasi-Perez, intensive service co-ordinator for the Regional Forensic Psychiatry Services, advised that there would be reference under the CCRA.
[49] Ms Blainy, intensive service co-ordinator for the Regional Intellectual Disability Care Centre (RIDCC), outlined the CCRA procedures. It is necessary to complete a needs assessment as to what supports needed to be developed either to
rehabilitate the appellant or to assist him in developing competence to live a life in the community and be a part of it. She advised that in view of the appellant’s suggestibility the best course would be to put him in supervised care. In terms of s 17(a) CCRA the co-ordinator is to initiate that assessment process as soon as practicable. There follows under s 19(1) preparation of a care and rehabilitation plan. In terms of s 20(1) Ms Blainy will consult the three experts for the purposes stated in s 21(2). The care co-ordinator under the RIDCC service would then be responsible for the necessary supports and the plan would be prepared under ss 24-27.
[50] Drs Seth and Sakdalan advised that the appellant’s conduct involved his being carried along by others and if his vulnerability were addressed by the RIDCC service and his needs were met his risk of offending would be equally reduced.
[51] Ms Blainy reported that the appellant has no challenging behaviours requiring any counselling. What is required is rather his developing some skills and moving back to his family in the future.
Comment
[52] I was impressed by the professionalism and depth of understanding and commitment on the part of each of the five experts. I am satisfied that their combined advice and efforts will result in a regime for the appellant which serves both his personal interests of being reintegrated in the community under appropriate controls and the public interest of reducing to inconsequential proportions the risk of future offending.
[53] While I am conscious that the episode in which he was involved was deeply disturbing to the complainants, they will understand that he was not one of the knife carriers and his function was that of a very simple man led on by others who played a substantially passive role limited to the removal of cigarettes from the premises.
[54] Viewed in terms of the opening trilemma the public will be protected; the regime will enhance P’s individual autonomy; and it would have been
disproportionate to expose this very simple man to the indignity of a criminal trial that he would simply not have understood.
Orders
[55] The orders are those made on 9 August 2006.
[56] I await the information that will allow me to determine what orders under ss 25-7 MIPA are appropriate.
W D Baragwanath J
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