Perston v Police
[2023] NZHC 1115
•11 May 2023
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), AucklandKayes 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 comprise:
(a)One charge of wilful damage and one charge of unlawfully takes a motor vehicle committed 21 December 1994, with convictions entered 31 January 1995.
(b)Two charges of wilful damage, and one charge of common assault committed 12 October 1995, with convictions entered 22 January 1996.
(c)One charge of common assault committed 4 October 1999 with conviction entered 17 January 2000.
[10] In 2012, a disposition order was made under s 25(1)(b) of the Criminal Procedure (Mentally Impaired Persons) Act 2003 requiring Mr Perston to be cared for as a care recipient under the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003. The term of the order was for three years. Mr Perston was detained in a secure facility for the duration of the order and now resides there on a voluntary basis.
Extension of time to bring the appeal
[11] Mr Perston requires an extension of time to bring his appeal. An affidavit has not been filed in support of the application. That is understandable given Mr Perston’s circumstances, and nothing turns on the lack of evidence.
[12] The touchstone for the grant of an extension of time is the interests of justice in a particular case.1 This involves balancing several factors including:2
1 R v Knight [1998] 1 NZLR 583 (CA) at 587; see also R v Lee [2006] 3 NZLR 42 (CA) at [96]– [99].
2 R v Lee [2006] 3 NZLR 42 (CA) at [99].
… the wider interests of society in the finality of decisions, the strength of the proposed appeal, whether the liberty of the subject is involved, the practical utility of any remedy sought, the extent of the impact on others affected and on the administration of justice, and any prejudice to the Crown.
[13] Applying the above principles to this case, I recognise the importance of finality given the lengthy period since convictions were entered. The fact that Mr Perston’s liberty is not impacted is also an important consideration. The extent of delay is significant, but, somewhat unusually for a case of this nature, there is no prejudice arising out of that delay as most of the relevant contemporaneous reports remain available. Moreover, the historic nature and type of offending means there is minimal impact on victims. Finally, and most significantly, there is real merit in the appeal as confirmed by the lack of opposition.
[14] Given those considerations, I am satisfied that an extension of time to bring the appeal is in the interests of justice. I order accordingly.
Jurisdiction to bring appeal
[15] The appeal is advanced under s 115 of the Summary Proceedings Act 1957 (SPA) on the basis that there has been a miscarriage of justice.
[16] A miscarriage of justice is not defined in the SPA. However, the Courts have applied the definition in the Criminal Procedure Act 2011.3 That definition refers to an error or irregularity that has created a real risk that the outcome of the trial was affected or that it has resulted in an unfair trial or a trial that was a nullity.4
[17] The convictions are appealed on the grounds that Mr Perston was neither fit to enter a plea nor to stand trial. Fitness must be assessed according to the law that applied at the relevant time.5 In Mr Perston’s case this was Part VII of the Criminal Justice Act 1985 (CJA). Section 108 of the CJA provided that a person would be “… under a disability if, because of the extent to which that person is mentally disordered
…”, the person could not plead, understand the proceedings, or communicate adequately with counsel.
3 See Miller v Police [2017] NZHC 2183 at [5], 12] and [13]; G v Police [2021] NZHC 645 at [17].
4 Criminal Procedure Act 2011, s 232(4).
5 Ferguson v R [2010] NZCA 2 at [23].
[18] A finding that a person was “under a disability” pursuant to s 108 of the CJA required a finding that the person was “mentally disordered”. The definition of “mental disorder” was the same as that under the Mental Health (Compulsory Assessment and Treatment) Act 1992 which expressly excluded “intellectual disability”.
[19] The definitions applying under the CJA created a “gap” for those who were intellectually disabled but were not mentally disordered as defined in the CJA. The Court of Appeal in CG v R canvassed the legislative history in relation to that “gap”, observing that it was unintended and subsequently addressed by the enactment of the 2004 amendment to the CJA.6
[20] This raises a question about the Court’s jurisdiction to consider an appeal against convictions entered under the CJA based on a miscarriage of justice arising as a consequence of the appellant’s intellectual disability. This Court has previously invoked its inherent powers to quash convictions on the grounds of miscarriage if it was subsequently found that the defendant was not fit to stand trial. The invocation of these powers in these circumstances is consistent with the right to a fair trial affirmed in s 25(a) of the New Zealand Bill of Rights Act 1990. As the Court of Appeal observed in R v L, the requirement that a defendant be fit to stand trial is fundamental to New Zealand’s criminal justice system.7
[21] In CG v R, the Court of Appeal confirmed that resorting to the Court’s inherent powers in these circumstances was appropriate, and there was nothing in the CJA which required the Court to take an approach inconsistent with the New Zealand Bill of Rights Act. The Court said:
[32] The Court in R v L was not dealing with an intellectually disabled defendant, but rather one who had been diagnosed as a pathological liar. The respondent’s argument before the Court was that the concept of mental disorder should not be applied “to psychological conditions or personality difficulties of this kind”. The Court’s observations in relation to “rare” and “exceptional” cases should be understood in that context. In practice, and certainly following the passage of the CPMIP Act, the need to have recourse to the courts’ inherent power is likely to be rare or exceptional. But we do not consider it necessary to add the gloss of circumstances needing to be rare or
6 CG v R [2022] NZCA 389 at [33].
7 R v L [1998] 2 NZLR 141 (CA) at 144.
exceptional before the inherent power may be exercised. Rather, and as the Court observed in R v L, if by reason of some disability a person is unable to obtain a fair trial as guaranteed by s 25 of the New Zealand Bill of Rights Act 1990 (the Bill of Rights Act), yet that person falls outside the statutory scheme governing fitness, recourse may be had to the court’s inherent power.
[33] We observe that now, consistent with the Supreme Court’s decision in Fitzgerald v R, the issue should be approached by asking whether anything in the relevant legislation requires the Court to take an approach that is inconsistent with rights protected by the Bill of Rights Act. As is apparent from the extracts set out at [27] above, the Court in R v L did not consider pt VII of the CJA required such a result. We agree. The legislative history summarised at [17] to [22] above is consistent with this conclusion. It would be wrong to ascribe to Parliament the intention to abrogate a person’s right to a fair trial, a fundamental right affirmed by the Bill of Rights Act, from what was clearly an unintended legislative gap.
[22] Accordingly, I proceed on the basis that the Court has jurisdiction to determine this appeal.
Was Mr Perston unfit to enter a plea and/or stand trial?
[23] There are approximately 16 medical reports before the Court spanning the conviction periods. Accordingly, there is a good deal of evidence from which to draw the necessary conclusions as to Mr Perston’s fitness at the relevant time.
[24] In March and May 1994, Mr Perston was assessed by two medical practitioners as presenting with an intellectual disability of a moderate degree, with his overall functioning being at the level of a seven to eight-year-old. Mr Perston was discharged pursuant to s 282 of the Children, Young Persons, and Their Families Act 1989 based on these reports.
[25] There do not appear to be any reports prepared in relation to the 1994 offending which resulted in the 1995 convictions. Youth Court notations were entered for this offending and Mr Perston was sentenced to come up for sentence if called upon.
[26] In contrast, however, there were several reports prepared in relation to the 1995 offending which resulted in three of the convictions subject to appeal.
[27] It is apparent from the reports prepared at this time that the medical professionals were concerned about the legislative gap affecting those with intellectual
disabilities. The assessments of Mr Perston focused on whether his cognitive impairments could be attributed to a mental illness or the head injury he sustained at four years of age.
[28] Two reports prepared around this time concluded that Mr Perston was fit to plead and stand trial. The first is an opinion of Dr Chaplow expressed in a two-page letter dated 8 December 1995 addressed to Dr Allnut. Dr Chaplow concludes that Mr Perston is able to plead and communicate with counsel despite his intellectual disability. That assessment is based on a 30-minute interview with Mr Perston in which he gives some simplistic answers to questions posed by Dr Chaplow. The expert opinion is expressed in three short paragraphs.
[29] The second is a report by Dr Fernandez dated January 1996. Dr Fernandez’s assessment took place in the Mason Clinic, where Mr Perston had been transferred for further assessment. While Dr Fernandez’s report is more in depth than Dr Chaplow’s, her observations appear to be directed to the presence of a mental disorder. That focus is not surprising given the statutory test applicable at that time. Dr Fernandez concluded that Mr Perston does not have a mental illness but presents with features consistent with a diagnosis of a conduct disorder. She concluded that he is not committable under the Mental Health (Compulsory Assessment and Treatment) Act.
[30] Dr Fernandez also concluded that Mr Perston could discuss the nature of the charges, knew right from wrong, and had an understanding of court procedures. In her opinion, Mr Perston was fit to plead and capable of instructing counsel. Those conclusions were expressed in four short sentences. The basis for those conclusions is not evident from the report.
[31] The reports of Dr Fernandez and Dr Chaplow stand in contrast to other reports from around this time. Dr Albrecht issued a report into Mr Perston’s fitness on 24 October 1995. Dr Albrecht concluded that Mr Perston’s intellectual function was at the level of a seven to eight-year-old. At the time of Dr Albrecht’s interview, Mr Perston was unable to undergo any further cognitive testing due to his limited attention, ability to concentrate, and distractibility. Based on that interview, and the information available, Dr Albrecht concluded that Mr Perston would have real
difficulty following the court process and would not be able to adequately discuss matters with counsel. He expressed real doubts that Mr Perston would be fit to plead.
[32] Similarly, on 22 December 1995, Dr Woodcock wrote to Dr Allnut setting out the outcomes of two tests undertaken by Mr Perston. Dr Woodcock assessed Mr Perston’s IQ as being in a range of between 46 to 58, with a confidence level of 90 per cent. A “Personality Assessment Inventory” test was administered, but had to be terminated, because Mr Perston had difficulty understanding the concepts involved.
[33] I consider Dr Albrecht’s report, and the findings of Dr Woodcock, are to be preferred to the opinions of Dr Chaplow and Dr Fernandez. The first two reports were based on an in-depth assessment of Mr Perston and testing (where possible). They are also consistent with the majority of medical evidence before the Court. The conclusions in the reports of Dr Chaplow and Dr Fernandez are not well substantiated and are stated in conclusory terms. They were prepared at a time when intellectual disability was excluded from mental disorder, and this appears to have influenced at least Dr Fernandez’s conclusions. Given these limitations, I place little weight on the reports of Dr Chaplow and Dr Fernandez.
[34] Mr Perston was charged with further offending in 1996 and 1997. All medical reports prepared at this time recorded Mr Perston’s intellectual disability, with one stating that Mr Perston had a “possible mental age of eight to ten years”. Despite some indication in one of the reports that Mr Perston may have been fit to plead at the time, a finding of disability was made on each occasion and Mr Perston was detained under the CJA.
[35] On 4 October 1999, Mr Perston committed a common assault. He was convicted and fined $280 on 17 January 2001. Fitness proceedings do not appear to have been triggered, and so there were no medical reports prepared at this time.
[36] Mr Perston faced subsequent charges in 2005 and 2011. On each occasion he was found unfit to stand trial.
[37] In a report dated 14 June 2011, Dr Goodwin concluded that Mr Perston’s cognition presented consistently with his previously known IQ. He considered that Mr Perston showed little insight into his current legal situation and was unable to nominate a preferred plea or indicate any reasoning which might sit behind it. Dr Goodwin also observed that Mr Perston was unable to place information in context and his attention difficulties meant he was unable to follow court processes. Dr Goodwin concluded that Mr Perston was unfit to stand trial due to his lifelong intellectual disability which would not improve, even with additional coaching.
[38] Dr Clare Calvert, in a report dated 21 September 2011, also concluded that Mr Perston did not appear to understand what a plea was and had limited understanding of his current charges. He would most likely experience significant difficulties understanding the court process. In addition, Dr Calvert concluded that Mr Perston did not have the ability to instruct counsel or to mount a defence. She concluded that Mr Perston would likely be found unfit to stand trial.
[39] Considering the medical evidence in its entirety, there is no real doubt that Mr Perston was not fit to plead or stand trial at any time in his life. The medical reports before the Court are consistent as to Mr Perston’s intellectual disability. Mr Perston was first assessed as having an intellectual disability in 1983, when he was five years old. Regular testing of Mr Perston’s IQ between 1994 to 2011 demonstrates significant cognitive impairment and extremely low-level range of intellectual function. Significantly, there is no evidence of any improvement or fluctuation in his intellectual disability or cognitive impairments over time, remaining consistent throughout.
[40] Those cognitive impairments mean it is highly unlikely that Mr Perston was able to plead, understand the nature or purpose of the proceedings, or communicate adequately with counsel for the purposes of conducting a defence. The two reports that suggest otherwise are not substantiated and are contrary to the preponderance of medical opinion.
[41] Convicting Mr Perston when he was not fit to plead or stand trial resulted in an unfair trial in breach of s 25(a) of the New Zealand Bill of Rights Act, which led to a miscarriage of justice. The convictions must be set aside.
Result
[42]An extension of time to bring the appeal is granted.
[43] The appeal is allowed. The six convictions the subject of the appeal are set aside.
Edwards J
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