P v The Queen

[2017] NZHC 330

NOTE: PUBLICATION OF NAMES, ADDRESSES, OCCUPATIONS OR IDENTIFYING PARTICULARS, OF COMPLAINANTS PROHIBITED BY S

203 OF THE CRIMINAL PROCEDURE ACT 2011.

NOTE: PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS, OF APPLICANT PROHIBITED BY S 201

OF THE CRIMINAL PROCEDURE ACT 2011.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2015-090-5086 [2017] NZHC 330

BETWEEN

P

Applicant

AND

THE QUEEN Respondent

Hearing:	23 February 2017
Counsel:	J Edgar and S Giles for Applicant J Murdoch for Respondent
Judgment:	3 March 2017

JUDGMENT OF WHATA J

This judgment was delivered by me on 3 March 2017 at 4.30 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date: ………………………….

Solicitors:           Public Defence Service, Waitakere

Meredith Connell, Auckland

P v THE QUEEN [2017] NZHC 330 [3 March 2017]

[1]      P pleaded guilty to a number of counts of sexual violation.  P now says that he was suffering from severe depression at the time that he made the guilty plea and seeks to have those pleas set aside.

[2]      The bases upon which a plea may be set aside are well settled and, for present purposes, the salient test is whether P’s ability to determine whether or not to plead guilty was affected by a permanent impairment, lack of capacity, ill health or other circumstances.1     The overarching question to be resolved is whether, in the circumstances  pleaded,  it  was  necessary in  the  interests  of  justice  to  allow  the withdrawal of the guilty plea.2

Background

[3]      The immediate background to the entry of the guilty pleas is not disputed.  P was initially charged with 16 offences relating to alleged intra-familial sexual offending against five victims aged between five and 13 years of age, who lived with P between 1993 and 2007.  P was represented by Lester Cordwell, an experienced trial counsel.   The charges were laid on 16 September 2015.   Preliminary matters having been attended to, a trial date of 25 July 2016 was allocated.   In the period May to  July 2016,  Mr  Cordwell  engaged  in  discussions  with  the  Crown  about resolution.  On 29 June 2016, a proposed Crown Charge Notice (CCN) and summary of facts resolution was sent to the defence by the Crown.  At a judicial telephone conference of the same date, Mr Cordwell advised that there was a real prospect for resolution, without the need for trial.  However, on 11 July 2016, at a further judicial telephone conference, Mr Cordwell advised the Court that the matter would in fact proceed to trial. This was confirmed on 21 July 2016.

[4]      On the weekend before trial, the Crown accepted that the rape charge relating to one of the complainants may be reduced to one of indecency, for the purposes of resolution.  P was then arraigned and pleaded guilty to an amended CCN including

only seven charges, and summary of facts on 25 July 2016.

1      Leeder v Christchurch District Council [2005] NZAR 18 at [45]. See also R v Le Page [2005] 2

NZLR at [17].

2      Leeder, at [62] and R v Le Page at [16].

[5]      On 18 August 2016, the Provision of Advice to Courts (PAC) Report writer advised that P intended to change his plea.   In October, Mr Cordwell withdrew as counsel and was replaced by the Public Defence Service and on 2 November 2016, P confirmed that an application to set aside plea is to be pursued.

P’s mental health

[6]      A  psychiatric  report  as  to  P’s  mental  health  has  been  prepared  by  Dr Shanmukh Lokesh.   Dr Lokesh is a consultant forensic psychiatrist and honourary senior lecturer at the University of Auckland.  He is a Fellow of the Royal Australian and New Zealand College of Psychiatrists and an accredited member of the Forensic Faculty of the Royal Australian and New Zealand College of Psychiatrists.   He is also a member of the Royal College of Psychiatrists in the United Kingdom and has a Master of Science Degree in the field of Criminology and Criminal Justice.  He commenced practise as a forensic psychiatrist in 2005.  The psychiatric report was prepared by him in his capacity as a private psychiatric consultant.

[7] Dr Lokesh’s report describes P background in detail. P is a 47 year-old man of Māori descent and was in full-time employment until 2014. P has had no previous contact with the Mental Health Services and has had no period of psychiatric in- patient admission under the Mental Health Act 2007. He has had intermittent contact with the criminal justice system since 1995. The report provides a reasonably detailed account of P’s upbringing, employment and relationships.

[8]      For the most part, P has been in gainful employment since leaving school. His first relationship lasted for about four years and he has two children from it, aged

28 and 26.  P describes his relationship with his ex-partner as insecure and that after separating from his partner,  P described  what  appears to be suggestive features indicative of a depressive disorder.  Subsequent relationships also appeared to suffer from issues of trust and insecurity.

[9]      P has a history of substance abuse dating back to when he was a child.  He had intermittent contact with the community alcohol and drug services in April 2015. His risk of alcohol abuse was assessed as moderate.

[10]     P’s minor criminal and traffic history is noted, as is the fact that he has no prior sexual convictions.

[11]     The report then addresses P’s psychiatric history.  It notes that P first noticed depressive symptoms in 1993 after separating from his ex-partner.  It refers to self- reported feelings of depression after the tragic bereavement of his father in 2004 and brother in 2010, and features indicative of neuro-vegetative symptoms of depression. P did not seek input from Mental Health Services after these events, reporting that he considered it to be a weakness to contact them.

[12]     Dr Lokesh also examines P’s recent psychiatric presentation.   Reference is made to prison psychiatric notes, including that P “appeared tired, body posture hunched, poor eye contact, and monotonous speech”.  His mood was noted as low and that “he wakes up several times and cries through the night, see[ing] his future as bleak”.  He was reviewed by a Dr Clelland on 16 June 2016 who formed the view that  P  was  suffering  from  a  very  low  mood.    He  was  given  anti-depressant medication.  P stated that his depressive symptoms did not resolve.  The report notes that P was taken to Court for a jury trial in July 2016 and around that time he had just been initiated with anti-depressant therapy.  When P was presented with the amended CCN if  he pleaded  guilty,  he is  reported  as  saying he was  struggling with  his thinking and described himself as muddled and confused.  He is reported as having said that the whole process of being in front of the jury, suffering from ongoing depression and anxiety, led him to enter an early guilty plea at that stage.

[13]     P is reported as having said that he had no prior thoughts of entering a plea and was keen for his charges to be trial by jury as he believed in a fair trial.  He also reported that at the time there was no option left for him and that he felt trapped with the stigma which he faced.

[14]     In terms of P’s medical history, Dr Lokesh observes P suffers from significant health issues, including mental health issues.   Two standard psychomentric tests completed for P by Dr Lokesh - The Beck’s Depression Inventory and The Hamilton Rating Scale for Depression – produced the following outputs:

(a)      The Beck’s Depression Inventory indicated that P scored “29 out of

63”  around  the  time  of  the  guilty  pleas,  indicating  a  moderate

depressive episode; and

(b)The Hamilton Rating Scale for Depression indicated that P scored “31 out of 62”, also indicating a depressive disorder of moderate severity.

[15]     Dr Lokesh also reports on a mental examination of P on 8 December 2016. P’s self-reported mood is rated as three out of ten.  Examination of his thoughts did not reveal any formal thought disorder but there were salient cognitive distortions (exaggeration  or  irrational  thought  patterns)  that  are  believed  to  perpetuate  the effects of psychopathological states, especially depression and anxiety.  There were also  ongoing cognitive distortions,  with low  self-esteem  and  a negative attitude toward himself, as well as significant guilt about being unable to save his father at the time of his death.   There was no evidence or features suggestive of psychotic symptoms.  There was no clear evidence of delusions of perceptual disturbances in any modality.

[16]     P self-reported hearing voices in the past, mainly derogatory and negative in content, in keeping with his depressive mood.   Dr Lokesh opines that P has been presenting with a recurrent major depressive disorder, of moderate severity, currently in remission.  P is also noted as fulfilling the criteria for cannabis abuse disorder and alcohol use disorder, currently in remission.

[17]     Dr Lokesh then states:

It is my view, that, when P was put on trial by jury on the first day, his depression and anxiety symptoms escalated in intensity and he felt “trapped” in his negative thinking pattern, in his own words – “looked for the easy way out” secondary to the cognitive fatigue in the context of his partially treated depressive disorder.  He resorted to a guilty plea without understanding the legal ramifications, in my opinion.  P was clearly of the view that if he had not suffered from a depressive disorder, he would not enter a plea.   He indicated that he was keen to go through a formal trial by jury and maintains his innocence for the charges.

[18]     Dr Lokesh acknowledges that there is a remote possibility that P might have fabricated some of the depressive symptoms.

[19]     He concludes by offering the view that, on the balance of probabilities, P was suffering from signs and symptoms indicative of a major depressive disorder of moderate severity at the time of his trial in July 2016.

Trial counsel advice

[20]     Mr Cordwell has provided a detailed affidavit of his interactions with P and the steps taken by him in the lead-up to the entry of the guilty plea.  He notes, on the Thursday or Friday prior to trial, they discussed matters over the phone with Crown counsel, Ms Murdoch.   He says that at one point during the conversation, he suggested to the Crown that if the Crown was prepared to withdraw the sole rape allegation, the anal sex allegation, and reduced the total number of charges, that he would speak to P about whether he would still wish to proceed to trial.   He then recalls that Ms Murdoch phoned him during the weekend prior to trial and informed him that the Crown was prepared to withdraw the rape charge, the anal sex charge and reduce the total number of charges in exchange for a guilty plea on an amended charge notice.

[21]     On the first day of trial he saw P and spoke to him.  He advised him to listen very carefully, and Mr Cordwell says he appeared to, and he had no reason to suspect that he did not understand the advice that he was giving him.  He told him that the Crown was prepared to withdraw the above allegations.  He reiterated that it was his advice that if they went to trial, he would almost certainly be found guilty of most, if not all, of the charges and that would certainly trigger a serious consideration of preventive detention.  He says P asked for half an hour to consider the proposal.  He says he visited P 30 or 40 minutes after the conversation and P advised him that he was prepared to plead guilty to the amended charge notice.  He then had P read and sign a letter. The letter records:

I, P, have agreed with the advice of my lawyer that I should plead guilty to the allegations made against me by the 5 complainants in this trial.

I am aware that the Crown are willing to withdraw the anal sex allegations made by G and the rape allegation made by M if I plead guilty to the charges set out in the amended charge sheet.  I am prepared to do that.

I accept the case is extremely strong against me and that if I am found guilty of the current charges I would be sentenced to a term of imprisonment in the

vicinity of 20 years. I am advised by Mr Cordwell that the chance of me receiving a sentence of preventative detention is unlikely if I plead guilty and that I would get a discount for pleading guilty should I enter guilty pleas.

I wish to admit responsibility for these charges and I do not want to put the complainants or the rest of my family through a trial of this nature.

Cross-examination of Dr Lokesh

[22]     Under  cross-examination,  Dr  Lokesh  acknowledged  that  in  forming  his views, he had not considered the evidence relating to the immediate context of the guilty   plea   admission,   including   the   affidavit   of   Mr   Cordwell.      He   also acknowledged that he had made no reference to the alleged offending though, in reply, he noted that a summary of the charges formed part of the background documentation for his assessment.    He was questioned at length on the contemporaneous prison notes.  He accepted that there was no clinical diagnosis of “a major depressive episode” but, rather, a reference to low mood in those notes at specific times.  He also acknowledges that there was no suggestion of self-harm in the period leading up to the guilty pleas.

[23]     In re-examination, however, he emphasised that the medical notes revealed the following symptoms indicative of depressive disorder:

(a)       11 June – references to P isolating himself; (b) 12 June – references to P feeling depressed;

(c)      13 June – references to P appearing to be or speaking in a monotonous tone and appearing blank, which is indicative of anhedonia, one of two core criteria for DSM5 assessment for depression, the other being low mood;

(d)      Cries at night;

(e)      A treatment plan involving appointment as soon as possible with a psychiatrist, noting that this urgency not usual in prison;

(f)      A diagnosis involving chemical treatment; (g)      A positive response to chemical treatment; (h)      25 and 26 July – references to depression;

(i)       26 July – refusing insulin – which is a form of self-harm; (j)   27 July – low mood; and

(k)September – evidence of cognitive distortion in his statements to the pre-sentencing reporter, namely that “he had to choose the easy way”.

[24]     Overall,  Dr  Lokesh  maintained his  view that  P has  suffered  from  major depressive episodes, including in the period in which he gave his plea.   Under questioning from me, however, he acknowledged some limitations in his analysis:

…you can only get a subjective account of the patient and you can make a formulation based on your knowledge of the…review…

…the day when he appeared on the Court on the 25th and a stressful situation which I highlighted earlier, he probably had regressed into a depressive state, but that’s a speculation.   But there is no objective documentation to substantiate that…

[25]     He did not accept, however, that the chronology of events as set out in his prison notes showed that P was not suffering from depression at the time he made his plea.

Argument

[26]     Ms Giles, for P, submitted:

(a)      There was clearly sufficient evidence justifying Dr Lokesh’s diagnosis of depression, referring to the symptoms of depression identified by him from the medical notes;

(b)The meeting with his counsel on the morning of the trial triggered his depression and caused cognitive impairment.  The evidence of this is that P self-reported that he felt muddled and could not think clearly at the time;

(c)      It was open to the Crown to get a separate report to contradict the evidence of depression but it did not do so;

(d)Mr Cordwell indicated that he was not surprised of the diagnosis of depression;

(e)      It was accepted that the burden was on P to show incapacity at the specific time he made his plea, but noting that the decision to plead guilty was entirely inconsistent with months of preparation for trial and the fact that P had maintained a not guilty plea consistently up until that point; and

(f)      P’s statements to the pre-sentencing reporter are entirely consistent with the assertion that he was suffering from a depressive episode at the time he entered the plea and that his thinking was cognitively impaired and that he could see no clear alternative but to plead guilty.

[27]     Ms Murdoch, for the Crown, responded:

(a)      Little weight can be given to a retrospective diagnosis, and Dr Lokesh acknowledged the difficulties with such diagnosis;

(b)There is no independent evidence to support the contention that P was suffering cognitive impairment at the time that he made his guilty plea.  In particular, there is no evidence showing that P was suffering from depressive symptoms at the time he entered plea;

(c)      Dr Lokesh  did not set  out how P may have been  affected at the specific time (again, noting that Dr Lokesh treated such assessment as a speculative one);

(d)The full chronology reveals that this is a clear case of a defendant expressing regret at a decision made;

(e)      The real issue to be addressed is whether P was incapable of entering a  plea  at  the  time  he  entered  plea.    There  is  simply  insufficient evidence to support a finding to that effect;

(f)      P was supported by experienced counsel and the issue about whether a plea should be made was not a new or recent one.  It was not a last minute one, the issue of plea having been traversed by counsel with P from late June;

(g)There was no pressure on P to make a plea on the morning, the trial Judge having set aside an unfettered amount of time to make such a plea;

(h)P could have produced a detailed account of the circumstances of his entry of plea, indicating a lack of cognition and setting out the depressive symptoms that he was suffering from; and

(i)There is simply no contemporaneous evidence to suggest that he was suffering from symptoms of depression, though the Crown accepts that there is a sufficient basis for finding that he may have suffered from depressive episodes in the past.

[28]     Overall, the Crown submits that the case for setting aside the plea on the basis of incapacity by illness falls well short of the requisite threshold test needed to establish a miscarriage of justice.

Assessment

[29]     As the Crown properly concedes,  P has established a proper basis for a finding that he has and does suffer from depressive episodes.   I endorse the observations made by Dr Lokesh that symptoms of depression can be inferred from the prison notes dated 11-13 June and 25-27 July.   But I am not satisfied on the

evidence that P was either suffering from a major depressive episode at the time he entered plea, or if he was suffering from such an episode, that he was cognitively impaired at  the time he entered plea.   Rather,  it would, as Dr Lokesh  properly accepted, be speculative to infer substantial cognitive impairment based on the available information.   While I accept Ms Giles’ basic contention that depression does not necessarily manifest itself in a clear way, the relevant types of indicia of depression are not reflected in the prison notes or other objective material in the period immediately leading up to the entry of plea.  On the contrary, the most recent entry prior to entering the plea, on 21 July, indicates that P’s medication had clearly had a positive effect and that P was, or at least appeared to be, in a positive frame of mind.  Furthermore, the available prison notes suggest that, to the extent P may have been depressed or suffering from a depressive episode, it occurred after the entry of plea.  Indeed, the notes record on 25 July 2016, “he has received bad news in Court and is heading into a depressive state and no longer wants to live”.

[30]     While there must be some caution in terms of the weight to be attributed to this statement, it pinpoints the depression as arising from plea rather than during or before plea.   I therefore consider that I am unable to reach the requisite level of satisfaction, on the balance of probabilities, that P was not competent at the time he gave instructions to enter plea because he was suffering from a depressive episode. My position might have been different had there been a formal assessment of P’s mental health at about the time of the entry of plea or other clear objective indicia of depression of a kind that might impair judgment.   But a retrospective assessment,

largely (though not exclusively)3  dependent on self-reporting and relatively sparse

medical notes signalling depression  at the specific time of the plea, is not a proper or sufficient basis to reach a conclusion that he was either mentally impaired and/or that a miscarriage of justice has occurred.

[31]     Accordingly, the application to vacate plea is declined.

3      As Dr Lokesh pointed out, one of the psychometric tests employs an objective assessment.