Paranihi v Police
[2014] NZHC 1533
•3 July 2014
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
CRI-2013-404-000318 [2014] NZHC 1533
BETWEEN JAMIE LEE PARANIHI
Appellant
AND
NEW ZEALAND POLICE Respondent
Hearing: 30 June 2014 Appearances:
S M Kilian and F J Hawkins for Appellant
A R Longdill and H J Musgrave for RespondentJudgment:
3 July 2014
JUDGMENT OF VENNING J
This judgment was delivered by me on 3 July 2014 at 10 am, pursuant to Rule 11.5 of the High Court
Rules.
Registrar/Deputy Registrar
Date……………
Solicitors: Kilian & Associates, Auckland
Crown Solicitor, Auckland
PARANIHI v NZ POLICE [2014] NZHC 1533 [3 July 2014]
Introduction
[1] Jamie Paranihi pleaded guilty to a charge of injuring with reckless disregard, driving with excess breath alcohol and having possession of a pipe for consumption of illegal drugs. On 6 May 2013 in the District Court at Auckland he was sentenced by Judge Gittos to six months community detention, placed on supervision for 12 months and disqualified from holding or obtaining a driver’s licence for nine
months.1
[2] Mr Paranihi now appeals against conviction on the grounds that at the time of the offending he was insane within the meaning of s 23 of the Crimes Act 1961.
Background
[3] Mr Paranihi was the live-in caregiver for the victim of the assault, Mr Pearson. At the time Mr Pearson was a 67 year old male and needed daily medical care. On 6 October 2012 Mr Pearson and Mr Paranihi became involved in a heated argument over Mr Paranihi’s use of Mr Pearson’s car. Mr Paranihi punched Mr Pearson four times in the face causing a fracture to his eye socket. There was also excessive swelling, bleeding, and loss of vision. Mr Pearson fell to the ground. After calling the police Mr Pearson went and sat on a couch. Mr Paranihi continued to kick at his legs. When the police arrived and searched Mr Paranihi they located a glass pipe. As a result of the attack Mr Pearson lost part of the sight in his eye, which has not been restored.
[4] Mr Paranihi was charged for the offending against Mr Pearson and the possession of the glass pipe. He was before the District Court on 12 October and initially entered a not guilty plea.
[5] On 2 December 2012 Mr Paranihi was driving. When stopped at a checkpoint he was found to have an excess breath alcohol reading.
[6] On 27 March Mr Paranihi changed his plea to guilty on all counts. He was convicted and remanded until 6 May 2013 for sentence on this first set of offending.
1 New Zealand Police v Paranihi DC Auckland CRI-2012-004-016714, 6 May 2013.
[7] Following Mr Paranihi’s sentence on 6 May he allegedly offended again, starting on 16 July 2013, which resulted in him facing the following further charges in the District Court at Kaitaia:
(a) injuring with intent to injure; (b) possession of cannabis;
(c) possession of offensive weapon;
(d) possession of utensils for the consumption of methamphetamine; and
(e) driving with excess breath alcohol. (the second set of offending).
[8] An issue arose as to Mr Paranihi’s fitness to stand trial for the second set of offending. Reports were obtained from two psychiatrists, Dr Karayiannis and Dr Claassen. Both confirmed that, although Mr Paranihi suffered from a psychiatric disorder, he was fit to plead. The Court then sought a further report from Dr Claassen to determine whether Mr Paranihi was insane in terms of s 23 of the Crimes Act 1961. In his second report Dr Claassen concluded that Mr Paranihi was insane within the meaning of s 23 at the time of the second set of offending. Judge McDonald ultimately found Mr Paranihi to be not guilty of the second set of
offending on the ground of insanity.2
[9] In the course of his second report to the Court Dr Claassen went on to state that he considered Mr Paranihi to have been insane at the time of the October 2012 offending. It is on that basis that the appeal is pursued.
The appeal
[10] Mr Kilian submitted that the medical evidence before the Court, Dr Karayiannis’ report as to Mr Paranihi’s fitness to plead and the three reports of Dr Claassen (the first on Mr Paranihi’s fitness to plead, the second on the issue of sanity, and the third being the disposition report) all supported the conclusion that Mr Paranihi was insane at the time of the October 2012 offending.
[11] Section 23 provides:
23 Insanity
(1) Every one shall be presumed to be sane at the time of doing or omitting any act until the contrary is proved.
(2) No person shall be convicted of an offence by reason of an act done or omitted by him when labouring under natural imbecility or disease of the mind to such an extent as to render him incapable—
(a) Of understanding the nature and quality of the act or omission; or
(b) Of knowing that the act or omission was morally wrong, having regard to the commonly accepted standards of right and wrong.
(3) Insanity before or after the time when he did or omitted the act, and insane delusions, though only partial, may be evidence that the offender was, at the time when he did or omitted the act, in such a condition of mind as to render him irresponsible for the act or omission.
(4) The fact that by virtue of this section any person has not been or is not liable to be convicted of an offence shall not affect the question whether any other person who is alleged to be a party to that offence is guilty of that offence.
[12] Dr Claassen’s first report of 3 September recorded that Mr Paranihi’s mental health difficulties were the consequence of an unrecognised and untreated major psychotic disorder. He believed it met the criteria required to ascribe a diagnosis of schizophrenia, multiple episodes currently in acute episode, as per the American
Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders.3
[13] In light of the report, there is no issue that Mr Paranihi suffers from a disease of the mind and that he would have been suffering from it in October 2012. The issue is whether, at the time of the October 2012 offending, the disease rendered him incapable of understanding the nature and quality of his actions or of knowing that his act was morally wrong.
[14] In his second report of 1 October Dr Claassen confirmed his previous diagnosis and expressed the opinion that, while Mr Paranihi may have understood the nature and quality of his actions to be illegal the disease of the mind led him to believe his actions to be justified and right.
[15] Dr Claassen said:
63.It is for this reason that I am of the view that despite having an appreciation of the nature and quality of his actions, due to Mr Paranihi’s disease of the mind, he truly believed his actions to be justified and right. Furthermore, given his clear descriptions of longstanding psychotic symptoms dating back years, it is my opinion that these symptoms were likely to be present on both dates of alleged offending. Section 23(3) specifically provides consideration to the matter by stating “insane delusions, only partial, may be evidence that the offender was at the time when he did or omitted the act, in such a condition of mind as to render him irresponsible for the act [or] omission”. It is my opinion that Mr Paranihi falls within this category. Although he reported that hallucinatory experiences were not compelling him to act in the way he did, he consistently reported that his behaviour was a direct consequence of the persecutory delusional convictions he had developed over some time.
(emphasis included)
The doctor went on to note that:
65.On the balance of probabilities I am of the view that despite Mr Paranihi demonstrating appreciation of the nature and quality of his actions on both incidents of alleged offending, his entrenched and longstanding persecutory delusions operated to such an extent that it prevented him from fully appreciating the moral wrongfulness of his actions. In fact, as a direct consequence of his disease of the mind on both incidents of alleged offending, Mr Paranihi to this day believes that his actions are justifiable and self-preserving. It is therefore my opinion that this disease of the mind did render him irresponsible for his actions on both incidents of alleged offending.
[16] Dr Claassen did however of course properly go on to acknowledge the ultimate question whether Mr Paranihi was insane or not was for the Court.
[17] Dr Claassen gave evidence in support of the appeal (by video link). He confirmed his opinion. He was then cross-examined and re-examined.
[18] Mr Kilian submitted that the evidence now before the Court was fresh evidence not available to the Court at the time Judge Gittos sentenced Mr Paranihi in May 2012 and that, in the absence of any evidence to the contrary, the appellant was able to show, on the balance of probabilities, that he was insane at the time of the October 2012 offending.
[19] Mr Kilian submitted the conviction should be quashed on the grounds of the new evidence provided and the Court should substitute a special verdict of not guilty on account of insanity. As to disposition Mr Kilian noted that Mr Paranihi was subject to an in-patient order in relation to the July 2013 offending.
Jurisdiction
[20] The case is to be dealt with under the Summary Proceedings Act 1957. Section 121(2A) of that Act applies. If it appears to the Court Mr Paranihi was insane at the time of the commission of the October 2012 offending, so that the informations should have been dismissed on account of his insanity, the Court may quash the convictions and thereupon the relevant provisions of the Criminal Procedure (Mentally Impaired Persons) Act 2003 apply as if the informations had been so dismissed.
The Crown’s position
[21] Ms Longdill drew the Court’s attention to the onus on the appellant, bearing in mind that he had pleaded guilty to the offending and submitted that, in light of Dr Claassen’s concessions during cross-examination in particular, his evidence could not be regarded as cogent nor did it satisfy the requirement of being “substantially helpful” in terms of s 25(1) of the Evidence Act 2006. She submitted the appeal should be dismissed.
Decision
Summary of issue
[22] The starting point is that the onus is on Mr Paranihi to satisfy the Court that the appeal ought to be allowed and that the Court should substitute the finding of insanity in accordance with s 121(2A) of the Summary Proceedings Act.
[23] The appeal depends on the Court admitting and accepting Dr Claassen’s evidence that at the time of the October 2012 offending Mr Paranihi was insane. That evidence was not before the Court in May 2013 when Mr Paranihi was sentenced.
[24] Dr Claassen only expressed an opinion about Mr Paranihi’s sanity because he thought the October 2012 offending was still unresolved and before the Court at the time of his second report. It appears the October 2012 offending may have been referred to in the request from the Court to Dr Claassen because there was an application to cancel the sentence of community service for that offending.
[25] Whatever the reason, the evidence is before this Court. It is further evidence that was not before the District Court. The question is whether Dr Claassen’s evidence should be admitted on appeal.
Admittance of insanity evidence on appeal
[26] The principles to be applied by an appeal court when considering the admission of further evidence generally were recently restated by the Supreme Court in Fairburn v R:4
[25] The principles to be applied by an appeal court when considering the admission of further evidence were stated by the Court of Appeal in its judgment in R v Bain5 and approved by the Privy Council in that case.6 It is worth repeating what the Court of Appeal said:
4 Fairburn v R [2010] NZSC 159, [2011] 2 NZLR 63.
5 R v Bain [2004] 1 NZLR 638 (CA) at [18]–[27].
6 Bain v R [2007] UKPC 33, (2007) 23 CRNZ 71 at [34].
[22] An appellant who wishes the Court to consider evidence not called at the trial must demonstrate that the new evidence is: (a) sufficiently fresh; and (b) sufficiently credible. Ordinarily if the evidence could, with reasonable diligence, have been called at the trial, it will not qualify as sufficiently fresh. This is not an immutable rule because the overriding criterion is always what course will best serve the interests of justice. The public interest in preserving the finality of jury verdicts means that those accused of crimes must put up their best case at trial and must do so after diligent preparation. If that were not so, new trials could routinely be obtained on the basis that further evidence was now available. On the other hand the Court cannot overlook the fact that sometimes, for whatever reason, significant evidence is not called when it might have been. The stronger the further evidence is from the appellant’s point of view, and thus the greater the risk of a miscarriage of justice if it is not admitted, the more the Court may be inclined to accept that it is sufficiently fresh, or not insist on that criterion being fulfilled.
[23] Whether new evidence is sufficiently credible to be admitted cannot be much elaborated in the abstract. Both inherent and contextual credibility will usually need consideration. Obviously evidence which is wholly incredible cannot avail the appellant, but beyond that it is neither necessary nor desirable to go in this general summary. The criteria of freshness and credibility govern whether the new evidence should be admitted or, putting the matter more formally, whether leave should be granted to admit the evidence. Fresh evidence is not admitted as of right. Its admission is a matter of discretion under s 389 of the Crimes Act. The freshness and credibility criteria are the standard measures which guide the exercise of the discretion. In the end, however, the discretion must be exercised in whatever manner the Court considers will further the overall interests of justice, both to the appellant and to the Crown which represents the community.
[24] If the further evidence does not qualify for admission, leave to admit it will not be granted and that will be the end of the matter. If it does qualify the Court then moves to the next stage of the inquiry, which is whether its existence demonstrates there has been a miscarriage of justice in the sense of there being a real risk that a miscarriage of justice has occurred on account of the new evidence not being before the jury which convicted the appellant. Such real risk will exist if, as it is put in the cases, the new evidence, when considered alongside the evidence given at the trial, might reasonably have led the jury to return a verdict of not guilty.
...
[26] It can therefore be seen that there are in substance three screens or controls which the Court applies in a further evidence case. The first is concerned with freshness, the second with credibility, and the third with whether the new evidence is such that it might reasonably have led to a finding of not guilty if called at the trial. If the appellant can satisfy the requirements inherent in each of these three controls, the question whether the further evidence does lead to a reasonable doubt is a question not for the appellate Court but for a new jury at a second trial which the Court will ordinarily order, unless for some good reason, pertaining to the nature of the new evidence or otherwise, the Court in its discretion decides not to order a new trial.
[27] The third screen or control in a further evidence case subsumes the proviso. If qualifying further evidence might reasonably have led the jury to an acquittal, it would be logically impossible to apply the proviso. It
could not then be said that the jury would without doubt have convicted, even if the further evidence had been before it. Hence the purpose of the proviso is built into the third control.
Although not so described in this passage, the third screen or control is often
referred to in terms of “cogency”.
[27] In Fairburn the evidence was considered sufficiently “fresh” because trial counsel in that case made a serious error in overlooking the need for an expert opinion to support the defence’s case.7 Blanchard J (writing for the majority) went on to state that “it would be contrary to the interests of justice to rule the evidence out on the ground that it did not qualify as ‘fresh’”.8
[28] The Supreme Court’s decision on this matter was considered by the Privy
Council in its recent decision in Lundy v R:9
[125] The Board considers that the principal reason for admitting the evidence in the Fairburn case was that it was in the interests of justice that it should be admitted rather than that the evidence should be regarded as “fresh”. In general, fresh evidence in this context is evidence which could not have been obtained with reasonable diligence before the trial. Plainly, in Fairburn the vehicle analyst’s report could have been obtained in advance of the trial. It could not be transformed to a condition of “freshness” simply because of counsel’s error in failing to commission it.
[29] Those principles apply equally whether or not the evidence is tendered by an expert witness. Section 25(1) of the Evidence Act 2006 requires that, for expert evidence to be admissible, the fact-finder must be likely to obtain substantial help from that evidence. As cogent evidence is that which might have reasonably have led to an alternate finding by the fact finder, any evidence that is cogent will be by definition substantially helpful. In this respect I do not consider that the requirement under s 25(1) adds anything of import to the test for admitting further evidence on appeal in Fairburn.
[30] The issue of primary importance to this appeal is how those principles apply where a defence of insanity might have been available, but was not raised at trial.
7 Fairburn v R, above n 4 at [33].
8 Ibid.
9 Lundy v R [2013] UKPC 28, [2014] 2 NZLR 273 (NZPCC).
[31] The issue was considered in R v Power, an appeal against conviction and sentence.10 Mr Power was charged with conspiracy to import and importing LSD into New Zealand. He was found not guilty on the first count but guilty on the second count of importing LSD into New Zealand. Following a report from a psychiatrist, Dr Brinded, Mr Power sought to substitute as his ground of appeal that at the time of the offending he was insane within the meaning of s 23 of the Crimes
Act. Dr Brinded concluded that Mr Power would have had a defence of insanity available to him as he was not able to appreciate that what he was doing was morally wrong since his thinking was so greatly distorted by his illness. That is essentially the same point that Dr Claassen makes for Mr Paranihi.
[32] The Court of Appeal reviewed the issue concerning the admission of further evidence, and noted the overriding test was the interests of justice.11 To that extent, the test is generally consistent with the later decision of the Supreme Court in Fairburn and the Privy Council’s decision in Lundy.
[33] The Court of Appeal then went on to observe:12
English cases have emphasised policy considerations weighing heavily against allowing an appellant who has failed in his or her defence at the trial to then seek to advance a different and exculpatory defence. In Dashwood at p 4 Humphreys J said:
One of the matters which this court has to consider, is what would be, or might be, the result of creating this precedent. In our opinion, it would be a most dangerous precedent to create; for, if we acceded to this application, we should be encouraging every person charged with any serious crime before a jury to instruct his counsel to conduct such defence as he thinks right before the jury, and, if that fails, to come to this court and ask that the state of mind of the accused person should be inquired into. We decline to accede to that course.
[34] Importantly, in the Power case, as in the present, the appellant was found fit to plead. The Court concluded that:13
Where fitness to plead is not in issue it is only in exceptional cases where the interests of justice dictate intervening in that decision not to pursue an insanity defence, that further evidence should be admitted at the hearing of the appeal.
10 R v Power CA187/96, 22 October 1996.
11 At 6–7.
12 Ibid, citing R v Dashwood [1943] 1 KB 1.
13 At 8.
[35] A similar approach was taken by the Court of Appeal in R v Gordon.14
[36] Generally, where a defendant is fit to plead, the Court will be slow to revisit matters of sanity after trial because normally the evidence could have been obtained with reasonable diligence before trial, and therefore the evidence is not “fresh” within the meaning given in Lundy v R.15 As the Court of Appeal observed in Bain v R, however, this is not an immutable rule as the overriding criterion will always be what course will best serve the interests of justice.16
[37] The position is perhaps a fortiori for the Crown where there has been a plea of guilty. In R v Le Page the Court of Appeal said:17
[16] ... it is only in exceptional circumstances that an appeal against conviction will be entertained following entry of a plea of guilty. An appellant must show that a miscarriage of justice will result if his conviction is not overturned. Where the appellant fully appreciated the merits of his position, and made an informed decision to plead guilty, the conviction cannot be impugned. These principles find expression in numerous decisions of this Court, of which R v Stretch [1982] 1 NZLR 225 and R v Ripia [1985]
1 NZLR 122 are examples.
Application
[38] In determining whether to admit the evidence, it is relevant that both Dr Karayiannis and Dr Claassen considered Mr Paranihi fit to plead when they initially assessed him in 2013. There is no suggestion that he was not fit to plead when arrested on the October 2012 charges nor on the seven occasions he appeared before the Court on those charges, including the time he changed his plea in March 2013 and was ultimately sentenced in May 2013. He can be taken to have considered his position and defences with counsel before pleading guilty to the October 2012 offending.
[39] I note that, in relation to the admission of further evidence on appeal, the provisions in s 119(3) of the Summary Proceeding Act are somewhat more
restrictive than the provisions in s 389 of the Crimes Act. However, for present
14 R v Gordon CA276/04, 16 December 2004 at [26].
15 Lundy v R, above n 9.
16 Bain v R [2004] 1 NZLR 638 (CA) at [22].
17 R v Le Page [2005] 2 NZLR 845 (CA).
purposes, and given the way the matter arose, Ms Longdill did not argue strenuously against the proposition that the evidence was fresh evidence, in that it only came to light after Mr Paranihi had pleaded guilty. Given the Crown’s position I proceed on the basis the evidence was sufficiently fresh, notwithstanding the comments of the Privy Council in Lundy.18
[40] The evidence is credible, in that it is expert evidence from a qualified psychiatrist.
[41] The real issue on this appeal is whether it can be said that if the evidence had been before the Court it might reasonably be said to have led to a finding of not guilty by reason of insanity. Does the evidence have the necessary “cogency”?
[42] Having considered Dr Claassen’s evidence and particularly the proper concessions he made in cross-examination I am satisfied the evidence is not sufficiently cogent.
[43] Dr Claassen accepted his second report in which he expressed the opinion Mr Paranihi was insane proceeded on the mistaken basis that the October 2012 charges were still live and before the Court. He was not aware Mr Paranihi had pleaded guilty. Nor was he aware that before the ultimate disposition of those charges on 5
May 2013 Mr Paranihi had appeared on seven occasions before the District Court. Dr Claassen had not read the pre-sentence report nor had he seen the Judge’s sentencing notes.
[44] Dr Claassen responsibly agreed that in order for him to be able to provide an informed opinion to the Court he would need to have all relevant information available to him. He also acknowledged that it was always going to be quite difficult to express an opinion about someone’s mental state almost a year earlier.19 He conceded that to provide an informed opinion he probably would need to have spoken to the lawyer who represented and acted for Mr Paranihi during the seven
appearances in Court and that he had not done so. He agreed that it was “fair
18 Lundy v R, above n 9, at [125].
19 He first interviewed Mr Paranihi on 14 August 2013, and then with a view to determining fitness to plead.
enough” that he would also probably need to have spoken to the probation officer who interviewed Mr Paranihi about the October 2012 offending.
[45] Dr Claassen accepted the above points were valid but said he remained of the opinion that:
… based on the account Mr Paranihi provided me with I probably would not have concluded differently and I would still have wondered about the possibility of him being acutely psychotic around the time of the first offence. But as you point out there was obviously a fair amount of information missing which may have swayed my opinion although what I’m saying is I suspect probably not significantly.
However Dr Claassen accepted that that was to a degree speculative.
[46] Further Dr Claassen accepted that Mr Paranihi’s reporting to the probation officer that “upon reflection, he should have left the situation to prevent further escalation” showed a level of insight on Mr Paranihi’s behalf, which I consider is contrary to the finding that Mr Paranihi believed his actions were justified and right. As Ms Longdill submitted, by the time Mr Paranihi spoke to Dr Claassen, he was aware of the consequences of such an admission.
[47] I also note that in January 2013, at a time much closer to the October 2012 offending, Mr Paranihi was referred by his general practitioner to the Taylor Centre Community Mental Health Service in Auckland Central and was seen by a registered mental health nurse. The mental health nurse reported that:
He denies auditory hallucinations after we explain the criteria for same, he does get thoughts which he may have previously thought of as ‘voices’.
Mr Reilly concluded:
There have previously been suggestions of that his behaviour reflects Aspergers Characteristics. Jamie does not present as psychotic. He does not present as acutely depressed. No diagnosis assigned.
He was then discharged back to the care of his GP. While I accept that is not an opinion of a doctor it nevertheless was an assessment by a trained mental health professional much closer to the relevant events.
[48] Next, at the conclusion of his cross-examination Dr Claassen responsibly accepted that, having learnt of all the extra information that was at hand, he could not be confident that such symptoms were indeed present on 6 October 2012, although he confirmed in re-examination that, while his opinion appears speculative and he took it for what it was, he did not think the further information would have led him to conclude differently.
[49] I appreciate the candour that Dr Claassen brought to his evidence. However, in light of the concessions and qualifications to his evidence it is not sufficiently cogent to satisfy the test for admission in this case. The evidence does not move the Court to the position where it can be satisfied, even on the balance of probabilities, that at the time of the offending in October 2012 Mr Paranihi was insane. Given the qualifications now attaching to it nor can the evidence be said to be substantially helpful in terms of s 25(1) of the Evidence Act.
Summary
[50] For the above reasons the evidence purporting to establish Mr Paranihi’s insanity as at October 2012 is not admissible on the appeal. It is not sufficiently cogent. By that reason it also fails the test under s 25 of the Evidence Act. It is not in the interests of justice that the evidence be admitted. In the absence of such evidence there is no basis for the appeal.
Result
[51] The appeal is dismissed.
Venning J
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