Perston v Police - [2023] NZHC 1115

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE

CRI-2022-404-000337

[2023] NZHC 1115

IN THE MATTER OF an appeal pursuant to s 115 of the Summary Proceedings Act 1957

BETWEEN

BLEDDYN DALE RANDALL PERSTON

Appellant

AND

NEW ZEALAND POLICE

Respondent

Hearing: 2 May 2023

Appearances:

G H Vear and S R Noakes for Appellant A Al-Janabi for Respondent

Judgment:

11 May 2023

JUDGMENT OF EDWARDS J

This judgment was delivered by me on 11 May 2023 at 4.00 pm.

Registrar/Deputy Registrar

Counsel/Solicitors:
Ministry of Justice (Public Defence Service), Auckland
Kayes Fletcher Walker (Crown Solicitor at Manukau), Auckland

PERSTON v POLICE [2023] NZHC 1115 [11 May 2023]

[1] Mr Perston seeks an extension of time to appeal six convictions entered between 1995 and 2000. He does so on the basis that he was not fit to stand trial or plead guilty to any of the charges at the relevant time due to a longstanding intellectual disability.

[2] There is no opposition to the appeal. The respondent supports an extension of time to bring the appeal and accepts that it is open to this Court to find that there was a miscarriage of justice in respect of each of the six convictions.

Personal circumstances

[3] As there is substantial agreement on the core issues in dispute, Mr Perston’s personal circumstances and the background to this appeal may be canvassed relatively briefly.

[4] Mr Perston is now 44 years of age. He was born in Auckland and is reported to have experienced hypoxia (oxygen deprivation) at birth, and a head injury at four and half years of age. However, it is suspected that Mr Perston’s intellectual disabilities pre-date this accident.

[5] Initially Mr Perston lived with his parents and sister and then with his father when his parents separated.

[6] Mr Perston presented with behavioural difficulties from the age of five. He was assessed at this time as having an IQ of between 45 to 55 (indicating an intellectual disability) and was subsequently moved to a special school. That intellectual disability has been confirmed in subsequent medical reports commissioned over the years, as I discuss in more detail below.

[7] Behavioural difficulties continued into Mr Perston’s adolescent years. At age 13 he was living in foster care due to his behaviour being unmanageable at home, and from around 15 or 16 years of age he spent time in various care facilities.

[8] In 1996, Mr Perston’s father suffered a heart attack in front of him and passed away. Mr Perston is estranged from other members of his family.

[9] Over the years Mr Perston has been charged with various offences including common assault, arson, indecent assault, and male assaults female. Some of these charges were withdrawn. He was found unfit to stand trial in relation to charges laid in 1997, 2005 and 2011. Other charges resulted in the convictions the subject of this appeal which represent Mr Perston’s entire criminal record. Those six convictions…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Perston v Police

Details

AGLC: Perston v Police [2023] NZHC 1115
Case: [2023] NZHC 1115
Decision Date: 11 May 2023

CaseChat Overview and Summary

The High Court of New Zealand considered an appeal by Bleddyn Dale Randall Perston against six convictions entered between 1995 and 2000. Perston argued that he was unfit to stand trial or plead guilty due to his longstanding intellectual disability. The court had to decide whether to grant an extension of time to bring the appeal, whether it had jurisdiction to hear the appeal, and whether Perston was unfit to enter a plea or stand trial at the relevant times. The court granted an extension of time to bring the appeal, finding that the interests of justice warranted it despite the lengthy delay. It confirmed its jurisdiction to hear the appeal based on the inherent powers to ensure a fair trial, as protected by the New Zealand Bill of Rights Act 1990. The court concluded that Perston was indeed unfit to enter a plea or stand trial at the relevant times, based on substantial medical evidence of his intellectual disability. These findings led to the conclusion that Perston's convictions resulted in a miscarriage of justice, and the appeal was allowed, setting aside the six convictions.

Orders