Paraha v Police

[2017] NZHC 2001

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2017-404-000216 [2017] NZHC 2001

BETWEEN

MANUEL PARAHA

Appellant

AND

NEW ZEALAND POLICE Respondent

Hearing:	21 August 2017
Appearances:	S A Mandeno for Appellant Z R Hamill for Respondent
Judgment:	21 August 2017

ORAL JUDGMENT OF PALMER J

Solicitors:

Public Defence Service, Auckland

Crown Solicitor, Auckland

PARAHA v NEW ZEALAND POLICE [2017] NZHC 2001 [21 August 2017]

Facts

The offending here

[1]      On Thursday 16 October 2014, Mr Paraha, who was then 17, was washing car windows at the intersection of Great South Rd and Te Irirangi Drive in Manukau. He   was   walking   backwards   through   the   two   northbound   lanes   of   traffic. Mr Raymond Beattie was unable to stop his car before its left-hand wing mirror struck Mr Paraha.  Mr Paraha fell to the ground and then walked to a traffic island. Mr Beattie stopped to check he was not hurt.  Mr Paraha got angry and kicked in the car’s rear tail light, cracking it.

[2]      On 11 June 2015, Mr Paraha pleaded guilty and was convicted in the District

Court of wilful damage to a rear tail light of a car and ordered to pay reparations of

$434.78.

[3]      Mr Paraha had no previous convictions.  He was represented by a different duty lawyer each time he appeared.

Subsequent alleged offending

[4]      The following year, after events in February 2016, Mr Paraha faced two charges of common assault on family members.

[5]      After spending some time with him, Mr Paraha’s counsel observed he may have  an  intellectual  disability.  The  procedure  under  the  Criminal  Procedure (Mentally Impaired Persons) Act 2011 was triggered.

Health assessments

[6]      Reports by two health assessors under s 38 concluded Mr Paraha has an intellectual disability which manifested early in his school years.

[7]      Dr Huddleston, on 22 July 2016, assessed Mr Paraha’s school records which

suggested he was working at a level well below what would be expected at the age

of nine.   He attended a special high school in Christchurch for persons with intellectual disabilities until the earthquakes.

[8]      Dr  Huddleston  considered  Mr  Paraha  lacked  basic  understanding  of  the nature, purpose and possible consequences of court proceedings, with poor ability to communicate with counsel or to participate in court processes.  She estimated him as having “significant cognitive difficulty” with a fullscale IQ of 60, extremely low to borderline verbal comprehension, perceptual reasoning, and working memory and speed of processing information.  She considered his cognitive abilities and adaptive behaviour were significantly below what was normally expected of children of a similar age when he was in his early teens.

[9]      Dr  Huddleston  assessed  Mr  Paraha’s  understanding  of  “guilty”  and  “not guilty” was “at best, rudimentary”, with guilty meaning “might be going to jail” and “not guilty” as “won’t be going to jail”.   He could not articulate the concepts or apply them to himself.  He did not know about his intended plea.

[10]   Dr Huddleston assessed Mr Paraha as not being capable of adequately understanding information placed before him or of formulating how to challenge information placed before the court.   She considered he would be found unfit to stand trial.

[11]     Dr Cavney’s report of 16 January 2017 confirmed Mr Paraha’s disability began  when  he  was  a  child  and  was  identified  in  his  early  school  years.    He estimated Mr Paraha’s IQ as in the range of 55 to 65.  He noted Mr Paraha did not know how serious his offences were or what a plea was.  He was not aware of who would be in court or what their roles would be.  The role of the judge, for example, was to send him to prison “probably for a year”.  Dr Cavney considered he would be unlikely to be able to follow court proceedings and was unfit to plead as a result of cognitive impairment.

Outcome and application

[12]     Mr Paraha was found unfit to plead in relation to the assault charges on

19 January 2017.  On 26 April 2017 the District Court directed Mr Paraha be cared

for as a special care recipient under the Intellectual Disability (Compulsory Care and Rehabiliation) Act 2003 for 12 months.   He is currently detained in a supervised facility.

[13]     In June 2017 Mr Paraha’s counsel made this application seeking leave to appeal out of time and to appeal the conviction.  The appeal is on the basis he was unfit to plead to the charge at the time and so a miscarriage of justice has occurred.

Submissions

Appellant’s submissions

[14]     Ms Mandeno, for Mr Paraha, submits that leave to appeal out of time should be granted because no counsel had previously spent enough time with Mr Paraha to identify his disability and Mr Paraha could not be expected to initiate it.

[15]     In relation to his appeal Ms Mandena submits Mr Paraha suffers from a permanent intellectual disability which developed when he was a child.  She submits the dates of the reports in July 2016 and January 2017 and the long-term nature of the disability justify an inference that he was unfit to plead on 11 June 2015.  She submits  Mr  Paraha  pleading  guilty when  he  was  not  fit  to  do  so  constitutes  a miscarriage of justice, based on a number of cases.1   She also advises the reparation ordered has not yet been paid.

Crown submissions

[16]     Ms Hamill, for the Crown, does not oppose leave to appeal out of time.  The Crown accepts there is a strong inference the assessors’ conclusions could apply to the circumstances of the wilful damage conviction.  The Crown accepts the available evidence indicates Mr Paraha has an intellectual disability of a long-standing nature which, in all probability, would have been operative at the time his guilty plea to

wilful damage was entered.

1      Leapai v Police [2012] NZHC 708, Fa v R [2013] NZCA 186, R v AAM ex parte A-G [2010] QCA 305.

[17]     Ms Hamill submits it is open to the Court to conclude a miscarriage of justice has, in all likelihood, occurred and the appeal should be allowed.  She submits I may take into account that Mr Paraha is currently in care as a result of the other charges, in deciding whether or not to order a new trial.  She advised that, if a retrial were ordered, the likely outcome may well be a finding of lack of fitness to plead.

Law

[18]     Section 232(2)(c) of the Criminal Procedure Act 2011 (CPA) provides I must allow the appeal if I am satisfied “a miscarriage of justice has occurred for any reason”.

[19]     Section 232(4) defines a  miscarriage of justice:

means any error, irregularity, or occurrence in or in relation to or affecting the trial that—

(a)       has created a real risk that the outcome of the trial was affected; or

(b)      has resulted in an unfair trial or a trial that was a nullity.

[20]     “Trial” is defined in s 232(5) to include a proceeding in which the appellant pleaded guilty.

[21]     Under s 233, if I am satisfied a miscarriage of justice has occurred, I must set aside the conviction and, in my discretion,2 may acquit or direct a new trial or make any other order, including no order, that I consider justice requires.

[22]     The Court of Appeal made clear in R v Le Page that “it is only in exceptional circumstances that an appeal against conviction will be entertained following entry of a plea of guilty.”3   But the Court also said that one situation of miscarriage of justice is “where the appellant did not appreciate the nature of, or did not intend to

plead guilty to, a particular charge.”4

2      R v Samuels [1985] 1 NZLR 350 (CA) at 356, R v E (CA308/06) [2007] NZCA 404, [2008]

3 NZLR 145.

3      R v Le Page [2005] 2 NZLR 845 (CA) at [16].

4 At [17].

[23]     Retrospective  assessments  are  potentially  problematic.5     As  the  Supreme Court said in Cumming v R, a court is not empowered to make a formal finding of unfitness to plead or to stand trial on a general appeal.6   A different statutory regime applies to that.  But a court may conclude that an accused has suffered a miscarriage of justice due to mental illness and likely unfitness at the time of trial.7   The statutory regime relevant to unfitness to plead is a recognition by Parliament that it is not right to put someone on trial when mental disorder would make the trial unfair.

Decision

[24]     I have considered all of Mr Paraha’s, and the Crown’s, submissions.

[25]     I grant leave to appeal out of time.  In view of the strength of the proposed appeal and the reason for the delay, I consider that is in the interests of justice.

[26]     I  consider  the  two  health  assessors’ reports  are  fresh  evidence  which  is

cogent. 8    I accept them.

[27]     I consider this case is similar to R v Leapai to which both parties refer.9   In that case Potter J accepted expert testimony in 2012 to the effect that the appellant’s assessed IQ of 51 meant that he could never have had the relevant cognitive capacity to meet the threshold test of fitness to stand trial in respect of each of his charges between 2002 and 2010. The Judge did not order a retrial, in the circumstances.

[28]     Here,  the unchallenged  psychological  evidence  is  that  Mr Paraha has  an intellectual disability that developed when he was a child.  This disability affects his ability to communicate, perceive and process information, including information conveyed verbally.  He has poor memory and simple concepts require detailed and repeated  explanation.  Mr Paraha’s  disability is  such that  the District  Court  was

satisfied, in January of this year, he was unfit to stand trial on two charges of assault.

5      Britz v R [2013] NZSC 38.

6      Cumming v R [2008] NZSC 39, [2010] 2 NZLR 433 at [13].

7 At [13].

8      Lundy v R [2013] UKPC 28, [2014] 2 NZLR 273, and recently reaffirmed as the correct test for accepting new evidence on appeal by the Court of Appeal in Tran v R [2017] NZCA 146.

9      R v Leapai [2012] NZHC 708.

[29]     I agree with both the Crown and the defence counsel that it is reasonable to draw a strong inference that the assessors’ conclusions apply to the circumstances underpinning the 2015 conviction.

[30]     Accordingly, I am satisfied there has been a miscarriage of justice in terms of

232(2)(c) of the Act.  I grant the appeal and set aside the conviction, which means the reparations ordered will no longer be payable.  I do not order a retrial.

..................................................................

Palmer J