Police v Burrows
[2020] NZHC 1755
•21 July 2020
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CRI-2020-485-9
[2020] NZHC 1755
BETWEEN NEW ZEALAND POLICE
Appellant
AND
WAYNE JOHN BURROWS
Respondent
Hearing: 10 June 2020 Counsel:
A R T Garrick and N Azam for Appellant Mr Burrows in person
Judgment:
21 July 2020
JUDGMENT OF ELLIS J
[1] Here I record the reasons for my 11 June 2020 results judgment.1 In that judgment, I dismissed an appeal by Police from a decision of Judge Mill in the District Court at the end of last year.2
[2] In that decision, the Judge stayed two charges under s 8(1)(b) of the Harassment Act which had been laid against Mr Burrows on 13 March 2017. They were stayed, essentially, on the grounds that processes under the Criminal Procedure (Mentally Impaired Persons) Act 1993 (the CPMIP Act) had been triggered without jurisdiction. This was because the court had previously ordered a s 38 report when Mr Burrows was not, in Judge Mill’s view, “in custody” as the section requires. The judge said that these processes had resulted in a breach of Mr Burrows’ New Zealand Bill of Rights Act 1990 (NZBORA) right to be tried without undue delay, and that
1 Police v Burrows [2020] NZHC 1307.
2 Police v Burrows [2019] NZDC 25097.
NEW ZEALAND POLICE v BURROWS [2020] NZHC 1755 [21 July 2020]
permitting the proceedings to continue would undermine public confidence in the integrity of the judicial system.3
[3] On 7 May 2020, Churchman J granted Police leave to appeal that decision on two questions of law, namely:4
(a)whether Judge Mill was correct to find that Mr Burrows was not “in custody” at the time the report under s 38(1) of the CPMIP Act was ordered; and
(b)if so, whether a stay was the appropriate remedy.
[4] Because of the nature of the issues raised, it is necessary, before turning to Judge Mill’s decision, to set out certain matters of the background in further detail: the alleged harassment, the CPMIP Act processes, and the history of the proceedings against Mr Burrows.
The alleged harassment
[5] The two harassment charges were laid very shortly after a restraining order had been obtained against Mr Burrows by a woman who has been referred to in other judgments as “A”.5 Mr Burrows and A previously had a platonic friendship that Mr Burrows maintained was ended abruptly and without reason. It is clear that the friendship meant a lot to Mr Burrows.
[6] The alleged harassment began when Mr Burrows started sending A unsolicited letters, postcards, and e-mails. On 11 December 2016, Mr Burrows was served with a notice under the Harassment Act requiring him to stop communicating with A.
[7] It was alleged that, on 14 February 2017, Mr Burrows sent a further 18 pages of insulting e-mails to A. It is also alleged that on 17 February 2017, when Mr Burrows
3 The Judge did not expressly find that Mr Burrows’ right under s 25(b) of the New Zealand Bill of Rights Act 1990 had been breached. Mr Burrows’ application for a stay was made on both grounds.
4 Police v Burrows [2020] NZHC 930. The requirement for leave is contained in s 296 of the Criminal Procedure Act 2011.
5 Harassment Act 1997, s 8(1)(b) [maximum penalty of two years’ imprisonment].
saw A on her way to work in central Wellington, he yelled abusive comments at her. Mr Burrows has never really denied these incidents; he has maintained that he was merely speaking the truth and had no criminal intent.
[8] On 10 March 2017, A obtained a restraining order against Mr Burrows. That restraining order has now expired.6 There have been no further, similar incidents in the intervening period or since expiry. Nonetheless, I acknowledge that the events of early 2017 very much frightened A and affected her ongoing wellbeing.
The CPMIP Act processes
[9] The processes under the CPMIP Act are central both to the District Court Judge’s stay decision and to the first question of law upon which leave to appeal was granted. It is therefore useful to say more about them.
[10] The CPMIP Act governs the process for determining (among other things) whether a defendant is unfit to stand trial or may have a defence of insanity. Relevant in this case is the question of fitness. Under the Act, a person is said to be unfit to stand trial if, due to mental impairment, he or she is unable:
(a)to conduct a defence, either personally or through counsel;
(b)to plead;
(c)to adequately understand the nature, purpose, or possible consequences of the proceedings; or
(d)to communicate adequately with counsel for the purpose of conducting a defence.
The CPMIP Act process for determining fitness
[11] Under the Act as it was at the time material to Mr Burrows’ case, an inquiry as to a defendant’s fitness to stand trial involved the following process:7
6 Its duration was three years.
7 The s 9 and s 14 inquiries could be conducted in the absence of a defendant if he or she was too mentally impaired to come to Court: s 15.
(a)An “evidential sufficiency” hearing under s 9, which provided that:
A court may not make a finding as to whether a defendant is unfit to stand trial unless the court is satisfied, on the balance of probabilities, that the evidence against the defendant is sufficient to establish that the defendant caused the act or omission that forms the basis of the offence with which the defendant is charged.
(b)Following that hearing, s 13 required the Court:
(i)to discharge the defendant, if not satisfied that he or she had caused the relevant act or omission; or
(ii)to record that finding and proceed to determine the issue of fitness (under s 14), if satisfied that the defendant did cause the relevant act or omission.
(c)Then, in order to determine fitness under s 14, the Court had to receive the evidence of two health assessors opining on whether the defendant was mentally impaired and, if satisfied of such impairment (on the balance of probabilities), to:
(i)give each party an opportunity to be heard and to present evidence on whether the defendant was unfit to stand trial; and
(ii)make and record a finding one way or another.
[12] A defendant has a right of appeal against both the fitness inquiry and the outcome of the evidential sufficiency hearing.8
Ordering a health assessor report
[13] The power to order health assessors’ reports necessary for the s 14 inquiry was contained in s 38 of the CPMIP Act, which relevantly provides:
38 Power of court to require assessment report
(1)When a person is in custody at any stage of a proceeding against the person, whether before or during the hearing or trial, or while awaiting sentence or the determination of an appeal, a court may, on the
8 Section 16.
application of the prosecution or the defence or on its own initiative, order that a health assessor prepare an assessment report on the person for the purpose of assisting the court to determine 1 or more of the following matters:
(a)whether the person is unfit to stand trial:
(b)whether the person is insane within the meaning of section 23 of the Crimes Act 1961:
…
(2)If a court orders that an assessment report on a person be prepared under subsection (1), the court may—
(a)make it a condition of a grant of bail that the person go to a place approved by the court for the purpose of the assessment; or
(b)order that the person be detained in a prison for the purpose of the assessment for any period not exceeding 14 days as the court thinks fit; or
(c)order that the person be detained in a hospital or secure facility for the purpose of the assessment for any period not exceeding 14 days as the court thinks fit, if—
(i)a remand to a prison for that purpose would be inappropriate for any reason; and
(ii)a health assessor has expressed the opinion, in a certificate or in evidence, that it would be desirable if an assessment, or a further assessment, take place in a hospital or in a secure facility.
(3)No order may be made under subsection (2)(b) or (c) in respect of a person if—
(a)the person is bailable as of right; or
(b)the person would have been released on bail but for the need
for an assessment report. …
The relationship between s 38 reports and the CPMIP Act process
[14] In McKay v R, the Court of Appeal noted that, logically, s 38 reports will not ordinarily be ordered until after the Court had determined under s 9 that a defendant committed the actus reus of the relevant offence or offences.9 That necessarily gave rise to a question about what information was required to “trigger” the (prior)
9 McKay v R [2009] NZCA 378, [2010] 1 NZLR 441 (CA).
s 9 process. In McKay, the Court held that the threshold was a low one, namely that “the accused, his or her counsel, or the Crown raises a question as to the accused’s fitness to stand trial.”10
[15] The Court noted that such a threshold was dependent on the integrity and good judgment of counsel, and that the process should normally begin after such an application, unless the judge thought further inquiries were necessary:
[34] … In the normal course of events, whenever there is an application or request, the statutory process should thereafter be followed. Rarely, a judge may think that the application is sufficiently lacking in apparent merit that some further inquiry is appropriate before engaging the statutory process. In such cases, the judge must make such inquiries as seem appropriate in the circumstances, always bearing in mind that one should be cautious before refusing to respond to such a request.
[16] But the Court added that the judge may themselves trigger the process without an application, where the concern as to fitness is clear:
[40] … there may be rare cases where the procedure should be triggered even in the absence of an application by counsel. The judge himself or herself may consider that the accused’s conduct either during the course of the alleged offending or during the court proceeding itself has been or is so bizarre as to raise a concern as to the accused’s fitness to stand trial. If the judge has such concerns and if the accused is represented by counsel, the judge should discuss his or her concern with counsel. Where the accused is acting for himself or herself, the judge will need to make a call. Sometimes, the process may need to be initiated even over the wishes of the accused if the judge considers there is real doubt as to the accused’s fitness to stand trial. Fair trial considerations would override the rights of an accused in that circumstance.
[17] Subsequently, in Latimer v Police, the High Court was faced with a case in which the appellant argued that the fitness process under the CPMIP Act “should have been” followed but was not.11 Venning J began by noting that the Court in McKay had clarified that:12
[43] … we should not be understood as saying that s 38 reports can never be obtained in advance of s 9 inquiries. Section 38 after all empowers the court to order reports “at any stage of a proceeding”. All we are saying is that,
10 At [34].
11 Latimer v Police HC Auckland CRI-2011-404-15, 21 June 2011. The question of Mr Latimer’s fitness had been raised by a forensic liaison nurse present in Court but (as I understand it form the judgment) no s 38 report had been ordered.
12 McKay, above n 9, at [43].
where the Subpart 1 procedure has been triggered, that procedure and its sequencing must be followed.
[18] And later, the Judge explained that informal, preliminary “screening assessments” may be ordered before the s 9 inquiry and so before the CPMIP Act fitness process began:13
[21] However, as McKay confirms, the trigger will generally be an application or request that the issue be determined by the Court. The difference is between a question for determination being raised by the Court which triggers the procedure, as opposed to a responsible and reasonable expression of concern as to the mental state of the accused either at the time of the offending or when before the Court, which does not, at least at the stage it is initially raised, trigger the process. …
[22] Under the McKay test the Court would not ordinarily examine the bona fides, substance or evidentiary foundation of an application or request
… but instead will rely on counsels’ integrity and good [judgement]. It is nevertheless implicit that the Court considers the application would not be made except in good faith and where there was such a real and substantial issue for determination.
[23] Such an approach is broadly consistent with the practice of informal, or screening, assessments which have their place in informing the decision of counsel whether or not to make an application for determination. Such informal assessments should be directed, not at the ultimate question of fitness to plead, but rather at whether there exists a real and substantial issue as to the accused’s fitness to plead. If the screening test discloses that there is such an issue then it would be appropriate for counsel to make an application for determination.
[19] It is also relevant to note that, in November 2018, amendments to the CPMIP Act came into force. The relevant upshot of those amendments is that the s 9 (now ss 10–12) and s 14 (now s 8A) processes have been reversed. The principal purpose of this reversal was to avoid the need for a s 9 evidential sufficiency hearing where there was no issue with a defendant’s fitness to stand trial. In cases where it transpires there is no such issue, the reversal has the effect of sparing a complainant from potentially having to give evidence twice—first at the evidential sufficiency hearing and then again at trial. And for those cases it will also have the effect of substantially shortening the CPMIP Act process.14
13 Latimer, above n 11, at [21]–[23].
14 Although commentators had initially suggested that the requirements of s 9 could be satisfied on the basis of hand-up briefs, in practice they developed into mini trials. As well, s 9 hearings often give rise to really quite difficult issues about the distinction between the mens rea and actus reus of the relevant offence. As a result of the amendment, the need to engage with such complexity
History of the proceedings against Mr Burrows
[20] In order to consider the second question of law (undue delay and the appropriateness of the stay), it is also necessary to canvass the history of the harassment proceedings against Mr Burrows in more detail. The CPMIP Act process set out above plays a central role in that history.
2017
[21] As noted earlier, a restraining order against Mr Burrows was issued on 10 March 2017; three days later, Police filed the harassment charges and Mr Burrows first appeared in Court. He was granted bail on conditions, including that he not enter the Wellington area (where A lived and worked).
[22] On 31 March, Judge Barry’s notes record that he ordered a “screening” report under s 38 of the CPMIP Act.15
[23] On 5 May, Dr Barry-Walsh completed this report, which concluded Mr Burrows was not insane and was fit to stand trial:
Mr Burrows is not unfit to stand trial. Although there is a core of irrationality in his view about the alleged offending this in my view is the product of an interaction between circumstance and personality and is not driven by an underlying mental illness. Further, Mr Burrows has a good understanding of court process, is well able to instruct counsel, enter pleas and is manifestly able to follow legal process. If things don’t go his way he may be at risk of becoming distressed and dysregulated but this would not be sufficient for a finding of unfitness.
At this stage Mr Burrows would not have a defence of insanity. There is no clear cut disease of the mind notwithstanding the irrationality of some of his thinking around the alleged offending. It is conceivable should Mr Burrows’ mental state deteriorate that he may develop what would constitute a disease of the mind and at that stage may have a defence of insanity.16
can now be avoided, at least in cases where the s 14 hearing has already determined that the defendant is fit to stand trial.
15 The idea of a “screening” report seems principally to be derived from the Latimer decision (discussed above), though the “screening” report in that case was not ordered under s 38. The District Court Judge in Latimer was plainly aware that there might be a fitness issue and simply wanted some preliminary advice about that without triggering the requirement for a s 9 hearing.
16 It might be observed that this paragraph sits uneasily with the legal defence of insanity, which turns (among other things) on a defendant having a relevant mental disorder at the time of the events giving rise to the charge, not subsequently.
[24] On 29 May, Mr Burrows’ attendance at Court was excused following his eviction from the Court by security staff. Not guilty pleas were entered on his behalf by his then counsel, Ms Caris, and a case review hearing was scheduled for 27 July.
[25] On 27 July, the case review hearing took place. Mr Burrows’ attendance that day had again been excused: he was not present. The transcript of the discussion between the Judge, Ms Caris, and the Court’s mental health liaison officer is set out in Judge Mill’s decision. The liaison officer had advised the Court that Mr Burrows had not complied with an “agreement” reached with Dr Barry-Walsh—in which, she said, he “undertook to engage in treatment with a GP and various things that would enhance his fitness”—and that she had heard other concerns from “various sources” about a deterioration in his mental health. She asked the Court to order a “new section 38”.
[26] The Judge then asked whether Mr Burrows needed to be present for such an order to be made. The liaison officer said that he did not. The Judge then reaffirmed his hesitations:
Sure, but all I want to know is I’m going to order a section 38 report as long as I am able to do that in his absence because if there’s any doubt about whether I can do that in his absence I think we can all be assured that this will protract matters considerably and the quick sand will get deeper. So I just want, I under what’s being suggested in the sense that I’ve read Dr Barry Walsh’s report, I understand it was conditional on Mr Burrows doing certain things and if it turns out it may be useful to get an update on that in any event. But subject to my ability to turn on a Court computer system, I always thought there was problems with ordering section 38 reports without the defendant present.
[27] After the morning tea adjournment, the discussion resumed. Mr Burrows’ lawyer advised the Court that she could not see anything “overtly in the Act that prevents an order being made in the client’s absence”. So, after noting that Mr Burrows’ absence meant that he could not make Mr Burrows’ compliance a condition of bail (because Mr Burrows was not present to sign the bail bond), the Judge wrote on the charging documents, “s 38(1)(a) and (b) report to consider fitness and insanity”.
[28] I interpolate at this point that Mr Burrows very much disputed the factual basis for the order and denied that he gave his lawyer any instructions either to raise the
possibility of a further report or to consent to it.17 In particular, he is adamant that he had been compliant with the understanding he had reached with Dr Barry-Walsh and had continued to see his GP regularly. It also transpired that the “various sources” referred to by the mental health liaison officer were reports of Mr Burrows’ altercations with Court security staff—not reports of a more formal or medically- qualified kind.18 In any event, it seems that Mr Burrows could, and would, have disputed the advice had he been present at the case review hearing.
[29] The further report ordered in July was provided by Dr Barry-Walsh on 21 September. Again, the conclusion was that Mr Burrows was fit to stand trial. On 26 September the case was adjourned to allow Mr Burrows’ counsel to consider his position in light of that report. Another adjournment was granted on 19 October.
[30] On 26 October, Judge Mill noted that the CPMIP Act processes had been triggered by the ordering of the report on 27 July 2017 and that a s 9 hearing therefore needed to be held.
[31] On 23 November, Judge Hobbs heard Mr Burrows’ application for an oral evidence order under s 92 of Criminal Procedure Act 2011 in relation to the s 9 hearing. Mr Burrows was, by this time, representing himself. The Judge declined the application on 7 December, noting that it raised a contentious jurisdictional issue. The following day, a half-day s 9 hearing was scheduled for 1 February 2018.
[32] On 20 December 2017, Judge Mill refused Mr Burrows’ application to obtain a copy of A’s Victim Impact Statement.
[33] Mr Burrows then filed judicial review proceedings in relation to both Judge Hobbs’ and Judge Mill’s decisions.
2018
[34] On 1 February 2018, the s 9 hearing was adjourned, part-heard, to 13 March. On that day, the s 9 hearing was again adjourned pending the outcome of the judicial
17 Any failure to follow Mr Burrows’ instructions forms no part of this appeal, however, and I make no finding about that.
18 Mr Burrows has since received written confirmation about this from the Mental Health Services.
review proceedings. There were further adjournments because the applications were not heard in the High Court until 9 May and the judgment was not delivered until 4 July. Both applications were dismissed.19
[35] On 5 September, the s 9 hearing resumed but was again adjourned to the following day as there was insufficient time. Mr Burrows then applied for dismissal of the charges pursuant to s 147 of the Criminal Procedure Act; that application remains unheard.
[36] Further submissions on specific issues for the s 9 hearing were sought by the District Court on 1 October.
[37] On 18 October, Mr Burrows’ appeal against the March 2017 restraining order was heard, and on 24 October it was dismissed by Churchman J.20
2019
[38] On 12 February 2019, Judge Butler issued a judgment finding (under s 9) that Mr Burrows had done the acts on which the harassment charges were based.21 In accordance with s 14, he ordered a report from a second health assessor under s 38 for the fitness inquiry.
[39]On 13 March, Mr Burrows filed an appeal against Judge Butler’s decision.
That appeal was dismissed by Churchman J on 29 May.22
[40] On 16 July, the s 14 hearing was allocated a date of 26 September (one day). Judge Tuohy reconfirmed Judge Butler’s order for a further s 38 report (Judge Butler’s order having not been actioned). The matter was called on 26 September but was adjourned because neither Mr Burrows nor the Court had been given a copy of the s 38 report.
19 Burrows v Police [2018] NZHC 1628.
20 Burrows v A [2018] NZHC 2761.
21 Police v Burrows [2019] NZDC 2576.
22 Burrows v Police [2019] NZHC 1198.
[41] On 23 October, a date of 20 February 2020 for the s 14 hearing was proposed, but Mr Burrows advised he would be out of the country. Sometime in March 2020 was suggested as the likely date.
[42] On 1 November, Mr Burrows filed a stay application, based (among other things) on undue delay. Police later advised that they would not be able to file submissions until after 18 November.
Judge Mill’s stay decision
[43] On 27 November 2019, Judge Mill heard the stay application; on 19 December he granted the stay.
[44] In his decision, the Judge said that the delay of Mr Burrows’ case did not meet the R v Williams standard of being undue or unjustifiable.23 It constituted standard delays, systemic delays, and delays related to Mr Burrows’ judicial reviews and appeals. He concluded that the delay was not so egregious as to warrant a stay over any other remedy: there could still be a fair trial.
[45] But Judge Mill continued. He turned his attention to the 27 July 2017 decision to order a s 38 report (reaffirmed in February 2019 and then 16 July 2019) that Mr Burrows claimed was made without jurisdiction. Judge Mill agreed, because Mr Burrows was not “in custody” when the order was made, as required by s 38(1) of the CPMIP Act. Judge Mill acknowledged that—had it not been for this process—the case would have been concluded by now. Instead, Mr Burrows had been under restrictive bail terms for longer than necessary and had otherwise suffered as a result of the prolonged proceedings. And it was because of the s 38 report that Mr Burrows brought his appeals, which added to the delay. Judge Mill thought that the delays caused by the CPMIP Act process were egregious and undue.
[46] Despite recognising the public interest in having the charges heard, the Judge said that continuing the proceedings under these circumstances would undermine public confidence in the integrity of the judicial system. The Judge was fortified in
23 R v Williams [2009] NZSC 41, [2009] 2 NZLR 750.
his view by the fact that Mr Burrows had complied with the restraining order without incident, was defending the charges on legitimate grounds, and (if convicted) was not facing a substantial penalty.
The appeal
[47]As noted earlier, leave to appeal has been granted on two questions of law:
(a)whether Judge Mill was correct to find that Mr Burrows was not “in custody” at the time the report under s 38(1) of the CPMIP Act was ordered; and
(b)if so, whether a stay was the appropriate remedy.
[48]I consider each in turn.
Was Mr Burrows “in custody” when the s 38 order was made in July 2017?
[49] It cannot be disputed that the power to order a report under s 38(1) is predicated on a defendant being “in custody”. That status would appear to be (as Judge Mill found) a jurisdictional fact. The Police did not seek to argue otherwise.
[50] The legislative history gives some sense of how the requirement came to exist, although the continued reason for it is not entirely clear.
Legislative history
[51] The legislative history shows that s 38 represents the coming together of three separate (but related) historical threads:
(a)The power to order a mentally disordered defendant to be kept in strict custody.
(b)The power to order a defendant to be detained where it was expedient that his mental condition be observed pending trial, sentence, or determination of appeal.
(c)The power to order a defendant to undergo a psychiatric examination for the purpose of preparing a report to assist the Court.
[52] First, s 32 of the Mental Health Act 1911 (the 1911 Act)24 contained a power to order a defendant who the Court was satisfied was insane—and so could not be tried or committed for trial—be kept in “strict custody” (in either a prison or a psychiatric institution). The finding of insanity had to be based on the “evidence of two medical practitioners”.
[53] Section 32 later became s 39C25 of the Criminal Justice Act 1954 (the 1954 Act). Section 39C provided that, if the Court was satisfied on the evidence of two medical practitioners that the defendant was mentally disordered, the Court was then to determine (after a hearing) whether he was “under disability”—that is, unfit to stand trial.26 Section 39C also permitted deferral of this fitness determination until after the close of the Crown case at trial (which meant that a defendant under disability could be acquitted if the Crown had failed to prove its case). The consequence of finding a defendant was under disability was dealt with in s 39G: detention in a hospital as a special patient under the Mental Health Act 1969 (pending further direction under s 39H).
[54] Secondly, s 37 of the 1911 Act contained a power to order that a defendant be detained in a psychiatric institution pending trial, sentence, or (later) the determination of appeal. This power was exercisable if the Court was “satisfied that it [was] necessary or expedient that [the defendant’s] mental condition should be under observation in an institution”. There was no requirement that the Court’s satisfaction be based on medical evidence or a report. It was, however, a prerequisite that the defendant be “in custody” at the time of the order. And the section expressly deemed that a defendant made the subject of such an order remained in the custody of the person in charge of the penal institution or police station where the defendant had previously been held.
24 It is unnecessary, for present purposes, to go back further than this.
25 As inserted in 1968.
26 The Act provided that a person was “under disability” if, because of the extent to which he is mentally disordered, he is unable (a) to plead, (b) to understand the nature or purpose of the proceedings, or (c) to communicate adequately with a solicitor for the purposes of conducting a defence.
[55] Section 37 later became s 39B of the 1954 Act. This was in similar terms, except that (as well as being satisfied that observation was necessary or expedient) the Court also needed to consider that the defendant might be under disability or insane at the time of the alleged offending. Again, however, there was no stipulated evidentiary basis for such a belief. But again, it was necessary that the defendant be “in custody” when the order was made, with that custody then deemed to continue after the making of the order. Additionally, the power was further defined and qualified in that:
(a)the section expressly provided that, if he was represented by counsel, a defendant need not be in Court when the order was made;
(b)the making of an order had the effect of authorising “medical treatment or procedures as in the opinion of the superintendent [were] necessary to prevent the deterioration of the person’s mental health”; and
(c)time limits were placed on the order’s duration, although a defendant could also be ordered to be “returned to custody” for the purposes of hearing or trial at an earlier point, on receipt of a report from the superintendent of the institution in question.
[56] Thirdly, s 47A27 of the 1954 Act provided that the Court could require a defendant to undergo a psychiatric examination by a medical practitioner. That power was also only exercisable when a person charged or convicted was in custody (pending or during trial, awaiting sentence, or pending the determination of an appeal) and when it appeared to the Court to be “expedient that a psychiatric report on the person’s mental condition should be made available”.28 The Court could then make the order in one of three ways:
(a)by making attendance for the psychiatric examination a condition of bail;
27 As inserted in 1968.
28 Although not clear on the face of the provision, it appears from the NZPDs that one of its concerns was to enable the Court to obtain such a report for dispositional purposes.
(b)by committing the defendant to a penal institution for the purpose of the psychiatric examination; or
(c)by committing the defendant to a psychiatric institution for the purpose of the psychiatric examination, in which case the defendant was deemed to remain in the custody of the person in charge of the penal institution in which he had been detained previously.
[57] These three threads were then tied together in the Criminal Justice Act 1985 (the 1985 Act), which repealed and replaced the 1954 Act.
[58] First, the former s 39C largely found form in s 111. As before, a finding that a defendant was under disability had to be based on the evidence of two medical practitioners—but now this could only be made after a hearing (which could occur in the defendant’s absence if he was too ill to come to court). And as before, there was no requirement that the defendant be “in custody” prior to the inquiry.
[59] More relevant for present purposes is what became of the second and third threads: s 39B and s 47A. These found new combined form in s 121, which was entitled “Power of court to require psychiatric report”. Like both s 39B and s 47A before it, s 121 stated that a psychiatric report could be ordered when the defendant was “in custody while awaiting or during the course of the hearing or trial or while awaiting sentence … or pending the determination of any appeal”. But s 121 also went further and specified that:
(a)an order could be initiated by “the application of the prosecutor or the defendant or of [the court’s] own motion”; and
(b)the purpose of such a report was to assist the court in determining:
(i)if the defendant is under disability; or
(ii)if the defendant is insane within the meaning of s 23 of the Crimes Act 1961;
(iii)the type and length of any sentence that might be imposed;
(iv)the nature of any requirement that it may impose as part of, or as a condition of, any sentence or order.
[60] And in terms of the mechanics, s 121(2)—like s 47A(2) before it—provided that, if satisfied a report was required, the Court could:
(a)make it a condition of any grant of bail that the defendant attend a place approved by the Court for a psychiatric examination; or
(b)make an order—
(i)committing the defendant to a penal institution for a psychiatric examination; or
(ii)committing the defendant to a psychiatric hospital for a psychiatric examination (where remand to a penal institution was, for any reason, inappropriate).
[61] Orders of the kind referred to in [60](b)(i) or (ii) could not be made against a defendant who was bailable as of right.29 And an order of the kind in [60](b)(ii) constituted:30
… sufficient authority for the administration to the defendant of any medical treatment or procedures with the consent of the defendant or, where the defendant is incapable of giving consent, such medical treatment or procedures as, in the opinion of the Superintendent, are immediately necessary to prevent the physical or mental deterioration of the defendant or serious suffering by the defendant, or to prevent the defendant causing harm to himself or herself or to others.
[62] Finally, it is clear that s 38 of the CPMIP Act represents a further interweaving of s 111 and s 121. Thus, in s 38:
29 Section 121(3)(a).
30 Section 121(9).
(a)The s 111 requirement that a finding of disability be preceded by evidence of two medical practitioners as to mental disorder has transmogrified into a requirement that it be based on two health assessors’ reports of the kind previously contemplated by s 121.
(b)The s 121(1) requirement that the defendant be in custody when the reports are ordered has been retained.
(c)The s 121(2) mechanics by which the reports can be facilitated have been retained.31
What can be gleaned from the legislative history
[63] The foregoing review makes it clear beyond doubt that the early requirement for a defendant to be “in custody” when an order was made meant that the defendant had to be detained either in a penal institution or in a police jail. Historically, that requirement made sense: it was a function of the fact that—as s 37 of the 1911 Act and s 39B of the 1954 Act make clear—the effect of an order was simply to substitute one form of detention for another (with the second deemed to be a continuation of the first). And, importantly, from 1968 onwards, the effect of such an order for detention under the 1954 Act was that the defendant could be compulsorily treated.
[64] Where matters become less clear, of course, is with the introduction of s 47A. It is difficult to discern any policy reason for the requirement in s 47A that a defendant be “in custody” at the time of ordering a report, except that the “in custody” status afforded the Court the power to compel assessment, including through the conditional grant of bail.32 Perhaps it was thought that any issue as to fitness or insanity would
31 I would read s 38 as continuing to require that the order for two psychiatric reports can only be made in one of the three specified ways: as a condition of bail or as part of order for detention either in a prison or hospital. That is consistent with the approach under s 38’s predecessors and with there being, in the absence of the order attaching to a bail bond, no straightforward way of compelling compliance. Moreover, by virtue of s 42(3) of the Bail Act 2000, a defendant would have a right of appeal against such a bail condition which does not, presumably, exist against an “unattached” order. There appears to be no right of appeal against orders requiring assessment while detained.
32 Although it may be that some defendants would consent to an assessment, Mr Burrows did very much dispute the factual basis on which the order was made and denied that he gave his lawyer any instructions either to raise the possibility of a further report or to consent to it. And the Courts have recognised—in relation to the not dissimilar power to require a person to undergo a medical
routinely be evident—and so raised—at a defendant’s first appearance (prior to any bail being granted).33
[65] Alternatively, it may just be that the “in custody” requirement was initially included in s 47A because it was thought to be closely related to s 39B (where the “in custody” requirement continued to make sense).
The decision in Togia
[66] The vexed problem to which the s 38 “in custody” requirement gives rise was considered by the Court of Appeal in Togia v R.34 Mr Togia was on bail at the time an order under s 38 was made. His counsel later argued that being “in custody” was a necessary pre-requisite under s 38(1) and so that the resulting report in Mr Togia’s case was unlawful.
[67] The High Court had rejected that argument, essentially on the basis that when Mr Togia surrendered to his bail for the Court appearance (at which the report was ordered) he was “in the custody” of the Court.35 Clifford J subsequently granted leave to appeal on the following relevant question of law:36
(a) Whether I was correct in determining that Mr Togia was in custody at the time the relevant s 38 reports were ordered …
[68] The Court of Appeal began by noting that the question of whether a person on bail could be said to be “in custody” for the purposes of s 38 had been raised but not answered in an earlier decision of that Court, McKay v R.37 After discussing the submissions made on behalf of Mr Togia, the Court noted that the “in custody” requirement in relation to bailed defendants was problematic:
or psychiatric examination contained in s 44 of the Senior Courts Act 2016—that “a medical examination ordered by the court against the will of the person to be examined involves a significant invasion of personal liberty”: W v S [2012] NZCA 166 at [16], citing the English Court of Appeal in Starr v National Coal Board [1977] 1 All ER 243 at 250 per Scarman LJ.
33 Where the order is made pending sentence or appeal it is, of course, much more likely that the defendant will be “in custody”.
34 Togia v New Zealand Police [2012] NZCA 544, [2013] 2 NZLR 478.
35 Togia v Police HC Wellington CRI-2010-485-39, 4 October 2011.
36 Togia v Police [2012] NZHC 1221.
37 McKay v R, above n 9. The Court noted that the cases in which the issue would arise were likely to be rare, because a defendant on bail “will probably usually be willing to undergo assessment as to whether he or she is mentally impaired.”
[21] The scope of the Court’s powers under s 38 is therefore to be analysed on the basis that if the pre-condition of the person being “in custody” excludes accused persons who have already been bailed, then there would be an absence of power on the part of the Court to require reports in those cases. When pressed, Mr Ellis acknowledged that such a gap in the Court’s powers to progress issues under CPMIP in this respect would be an unintended oversight by Parliament, rather than an intentional gap.
[69] And the Court agreed with the Crown’s submission that it was not forced or artificial to interpret “in custody” as extending to a person who was in custody of the Court for the purposes of a hearing, particularly as the wording of s 32(3) of the Bail Act supported that interpretation:
[26] Those other statutory references are consistent with a person required to be at Court to answer bail being in a form of custody of the Court, irrespective of whether they are constrained to a particular part of a courtroom or indeed cells attached to the Court.
[27] The remaining terms of s 38 of CPMIP are also consistent with that. If the Court makes an order under s 38 when a person first appears, then the person has been delivered into the custody of the Court as a result of compulsion by the Police for the person to attend. The person is then in the custody of the Court until the Court decides to grant bail. If a report is ordered on a subsequent appearance when the person has previously been bailed and has answered to it, then the person is in the same sense in the custody of the Court at the time the Court is dealing with the requirement for a report. …
[70] The Court thus concluded that s 38 reports could be properly ordered for persons on bail who appear before the Court:
[30] The limitation in s 38(3) on the Court’s powers to order that a person be detained in a prison, hospital or in a secure facility under s 38(2)(b) or (c) if the person would otherwise be bailed does not apply in the same way to constrain the Court’s power to impose relevant conditions of bail under s 38(2)(a). For example, the Court may still make it a condition of bail that the person go to a place approved by the Court for the purpose of the assessment under s 38(2)(a), even if that person is bailable as of right. Those constraints on the Court’s power can only be read to give them the scope obviously intended for them if the concept of “in custody” in s 38(1) extends to the status of a person who is either being granted bail, or about to be re- bailed.
[31] It follows that for the above reasons on the analysis of s 38, and for the reasons given by Clifford J … we do not agree with the suggestion in McKay that there may be a lack of jurisdiction to order reports under s 38 of CPMIP in respect of persons on bail.
[71] Although on occasion the Court’s reasoning in Togia is arguably expressed more broadly (such as in the concluding sentence in [31]), the reasoning overall is
predicated on a defendant answering bail and being present in—and so “in the custody of”—the Court. That is plainly the basis on which the case was argued on behalf of the Crown, and the scope of the Court of Appeal’s decision was confirmed in the Supreme Court’s later decision denying Mr Togia leave to appeal:38
[3] It was held by the Court of Appeal that Mr Togia was “in custody” at the time the report was ordered, even though he was on bail. The Court of Appeal approved the reasoning of Clifford J, who had held that, when a person on bail appears in court, they are under the supervision of the court and thus in custody for the purpose of s 38(1) when the report is ordered.
…
[7] The issue as to the ability to order a report about a person on bail is of public importance but the Court of Appeal decision on that point was clearly correct.
The present case
[72] The signal difference between Mr Togia’s case and the present, then, is that Mr Burrows was not required to answer bail or to appear in Court on 27 July 2017 when the s 38 report was ordered. And the proposition that a defendant is, in fact, in the custody of the Court (and so “in custody” for the purposes of s 38) at any time when he or she is on bail is, I think, a qualitatively different proposition—one which stretches the ordinary meaning of “in custody” too far. The ordinary meaning of “bail” is “to set at liberty a person arrested or imprisoned”.39 Being “on bail” is the opposite of being “in custody”, at least until a defendant is required to answer it by appearing in Court.
[73] It follows that I am unable to accept the appellant’s submissions that the words “in custody” include being “on bail” because a defendant who is on bail somehow remains in the protection, care, or guardianship of the Court, or remains subject to the authority of the Court. As I have said, being granted bail is conceptually the obverse of being detained in custody. To hold otherwise would be to engage in the “Humpty Dumpty” method of statutory interpretation that was so famously excoriated by Lord Atkin over three quarters of a century ago.40 If the ordinary and
38 Togia v New Zealand Police [2013] NZSC 4, [2013] 2 NZLR 478 (emphasis added).
39 Daniel Greenberg Jowitt’s Dictionary of English Law (5th ed, Sweet & Maxwell, London, 2019).
40 Liversidge v Anderson [1941] UKHL 1, [1942] AC 206. Lord Atkin rejected the interpretation advanced by the Crown in that case, saying:
straightforward meaning of the phrase creates difficulties beyond the circumstances of this case, that is a matter for Parliament.
[74] Nor do I accept that it is relevant that both the CPMIP Act and other legislation expressly refer, on occasion, to a defendant either being required or not being required to be present for certain events.41 The defendant’s presence or absence from Court is not the issue here. The requirement is that the defendant be “in custody” at the time the order is made. As a result of the decision in Togia, this has been extended to include a defendant who, by virtue of answering his bail and appearing, is “in the custody of” the Court.
[75] And lastly, I am also unable to agree that the legislative history does not support the “narrow” interpretation of “in custody” preferred by me and by Judge Mill. While true that it is possible to trace the anomalous wording back to s 47A of the 1954 Act (as inserted in 1968), nothing can be taken from that. The more comprehensive historical review undertaken above makes it clear that s 47A is derived from, or related to, provisions in which the words “in custody” have always meant what they say.42
Was a stay the appropriate remedy?
[76]This issue involves consideration of two questions:
(a)was there undue delay; and
(b)is a stay the appropriate remedy?
I know of only one authority which might justify the suggested method of construction: “ ‘When I use a word,’ Humpty Dumpty said, in rather a scornful tone, ‘it means just what I choose it to mean, neither more nor less.’ ‘The question is,’ said Alice, ‘whether you can make words mean so many different things.’ ‘The question is,’ said Humpty Dumpty, ‘which is to be the master, that’s all.’ ”
41 For example, s 15 of the CPMIP Act provided (at the relevant time) that “[t]he jurisdiction under any of sections 10 to 14 [that is, the fitness inquiry] may be exercised in the absence of the defendant if the court is satisfied that the defendant is too mentally impaired to come to court”.
42 And would arguably not support the more liberal interpretation in Togia.
Undue delay: the law
[77] The law relating to the NZBORA right to be tried without undue delay has been canvassed most authoritatively and recently by the Supreme Court in R v Williams.43 There, the Court began by citing with approval the decision in R v Harmer, where the Court of Appeal had said that the right to be tried without undue delay could exist independently of the question of whether the delay affected fair trial:44
[130] The Bill of Rights guarantee of a trial without undue delay often overlaps with and supports the guarantee of a fair trial (s 25(a)) but it is a distinct right whose purpose is also to minimise pre-trial restraints (imprisonment or restrictive bail conditions) and to minimise other personal disadvantage as well as anxiety for someone who is entitled to be presumed innocent until guilt is established by verdict at a trial. Consequently, delay which has no appearance of prejudicing the fairness of a trial can become undue because of the elapsing of too long a period of time after the laying of a charge. …
[131] Whether delay can said to be undue despite not affecting the fairness of a trial therefore falls to be determined on a case by case assessment of particular circumstances. The length and causes of delay must be considered.
…
[78] Then, the Supreme Court went on to confirm that undue delay could occur without prejudice to a defendant’s fair trial rights, and that both the assessment of the delay and the appropriate remedy were case-specific:45
[10] There are thus two distinct rights: the right to a fair trial and the right to trial without undue delay. The right to trial without undue delay is directed to the time that elapses between arrest and final disposition, including any appeal, whereas the right to a fair trial comes into play at the time of trial. The two rights overlap, however, where the consequence of undue delay in bringing an accused to trial is that a fair trial cannot be held. Both rights are then breached.
[11] In an earlier decision of the Court of Appeal, Martin v Tauranga District Court, Cooke P and McKay J had adopted the approach of the Supreme Court of Canada in R v Morin. That approach is to look at a range of factors, including the length of the overall delay, any waiver of time periods, the reasons for the delay (including time requirements, actions of the accused and the Crown, limits on institutional resources and any other reasons) and prejudice to the accused. It is important, however, to emphasise that there can be undue delay and a breach of that right without there being any prejudice to a fair trial. That is one of the reasons why, as we will
43 R v Williams, above n 23.
44 R v Harmer CA 324/02 and 352/02, 26 June 2003.
45 (Emphases added).
mention again when considering the question of remedy, a stay is neither a mandatory nor a usual remedy for undue delay.
[12] Whether there has been undue delay in a particular case is a function of time, cause and circumstance. Undue in this context is synonymous with unjustifiable. An accused may acquiesce in the delay, whether in the expectation that it will make the task of the prosecution more difficult or because it defers the day of reckoning. Notwithstanding the suggestions to the contrary of Hardie Boys and McKay JJ in Martin, there is no obligation on any accused to progress matters towards trial, or to protest about delay; the obligation is on the prosecution to ensure trial without undue delay. Whether delay is attributable to the Courts or to the prosecution is irrelevant to the determination of the question of excessive delay, but may be relevant in assessing the validity of any explanation for the delay and (if necessary) what remedy should be granted.
Undue delay: this case
[79] As in Williams, Mr Burrows’ stay application did not depend on the delay’s effect on his fair trial rights. It is still accepted that those rights have not materially been affected by the delay. Rather, the question is whether the delay has otherwise been “undue”. That requires consideration of relevant matters of context and proportionality and of the reasons for the delay including, in particular, the CPMIP Act processes.
[80] As to general matters of context and proportionality, there are a number of matters that can usefully be recorded at the outset.
[81] First, at the time the stay application came before Judge Mill, the proceedings against Mr Burrows had been on foot for almost three years. A trial date had not been set and the CPMIP Act processes had not been completed.
[82] Secondly, and notwithstanding that the charges involved events that were— undoubtedly—extremely distressing for A, the alleged offending here was relatively less serious. The maximum penalty for a criminal harassment charge is two years’ imprisonment, and, on any analysis, Mr Burrows’ alleged conduct falls at the less serious end of the harassment spectrum. Even if the matter had progressed quickly, a sentence of imprisonment would have been highly unlikely. Indeed, it seems to me that, in light of Mr Burrows’ previous good character and the effect of the proceedings on him (discussed shortly below), the possibility of a discharge without conviction
would not have been off the table. When this possible outcome is weighed against the length of the delay there is, clearly, a proportionality problem.
[83] Thirdly, it is relevant that there have been no repeat incidents of harassment or breaches of the protection order since the charges were laid.
[84] Fourthly, Mr Burrows has been on bail throughout. Although I accept the police submissions that the terms of his bail were not (relatively) onerous, his ability to travel was curtailed for a period and he was subject to standard conditions.
[85] And lastly, Mr Burrows filed evidence setting out more widely the adverse effects—psychological and financial—that the proceedings have had on him. In my view, the psychiatric reports prepared for the purposes of the CPMIP Act processes provide some support for his account. In particular, the most recent s 38 report by Dr Leslie (dated 25 September 2019) records her view (and the reasons for it) that Mr Burrows’ mental state had clearly been negatively affected by these proceedings.
[86] On their face, all these general matters point towards a conclusion that the delay here was, indeed, undue.
[87] The next matter that must be considered is the reasons for the delay. Judge Mill attributed much of it to the CPMIP Act processes—a conclusion with which it is difficult to argue. And while the police are right to say that certain steps taken by Mr Burrows in the course of those processes contributed to the delay, in my view that contribution is relatively minor.
[88] The most that can be said is that there was a period of seven and a half months (between the end of November 2017 and the beginning of July 2018) when progress with the CPMIP Act process was held up due to Mr Burrows’ two applications for judicial review.46 At least one of those two applications would not have been made were it not for the initiation of the CPMIP Act process. By comparison, it has taken 15 months (from 4 July 2018 until 23 October 2019) to complete the s 9 hearing and to obtain the second health assessor’s report. Almost half of that appears to have
46 Two months of that period was the time it took me to write my decision on the applications.
involved an administrative error in not actioning the Court’s direction for the second report and then not providing it to Mr Burrows and the Court. Insufficient time appears to have been allocated for the first s 9 hearing. And as noted earlier, at the time the application for stay was heard, the fitness hearing had not yet occurred and the trial date had not yet been set.
[89] And then there is the point that the initiating order made under the CPMIP Act was made when Mr Burrows was not “in custody”. Counsel for the Police did not seek to argue that the District Court Judge was wrong to conclude that the requirement that a defendant be “in custody” was a “precedent fact” going to the Court’s jurisdiction. And notwithstanding that the policy rationale for the requirement remains murky, it is difficult to see otherwise. Whether or not a person is “in custody” at the relevant time is an objective factual question, about which there is no real room for debate.
[90] If that is so, then it tends to follow that the delays caused by an unlawful CPMIP Act process here were—almost by definition—unjustifiable and therefore undue. I use the word “tends” here because it is, I suppose, arguable that, had it not been for Mr Burrows’ absence, a further order under s 38 (and the formal triggering of the CPMIP Act process thereby) would otherwise have been appropriate.
[91] But I have doubts about that. Dr Barry-Walsh made it clear in his first report that even if Mr Burrows’ mental state did deteriorate, he would remain fit to stand trial. Any such deterioration seems to have been regarded as relevant only to a possible insanity defence, which does not really make sense. And as noted earlier, Mr Burrows disputes the factual correctness of the advice received by the Court which seems to have prompted the ordering of the report.
Given the delay, was a stay the appropriate remedy?
[92] I acknowledge that in Williams the Supreme Court said that remedies other than a stay will often be more appropriate in cases of undue delay.47 But there are a number of matters here that lead me to the opposite conclusion:
47 Compare, however, Cooke P’s observation in Martin v Tauranga District Court [1995] 2 NZLR 419 at 424–425:
(a)the CPMIP Act process is not yet complete (the fitness hearing has yet to take place);
(b)no trial date has been allocated; and
(c)the impact of the COVID-19 lockdown will almost certainly give rise to further delays in that regard.
[93] And lastly, when the length of delay (over 36 months) and both the maximum and the likely penalties are weighed, the present compares favourably with other cases in which stays have been granted, including:
(a)Auckland District Court v Attorney-General:48 50 months between the charge and proposed date of trial. This included the Crown’s seven month delay before seeking judicial review of the decision to discharge without conviction, delays in transferring the proceedings, and delays in filing. The charge (possessing cannabis for supply) had a maximum penalty of 8 years’ imprisonment—it was entirely possible that the defendant would have already completed any finite sentence imposed timeously. The court allowed the appeal, and so upheld the discharge.
(b)Police v Auckland District Court:49 27–30 months between laying informations and trial. Half of that delay was caused by the Crown’s delay in particularising indictments and inherent systemic delay. The case involved far-reaching effects on the defendant and their family. The charge (making copies of objectionable material for distribution) had a maximum penalty of 1 years’ imprisonment. The court dismissed
A standard remedy under the Bill of Rights for undue delay should logically be a stay. A wide range of factors fall for consideration in deciding whether the delay has been undue,
including the public or societal interest in the prosecution of crime; but, if a balancing of the factors leads to the conclusion that there has in truth been undue delay, it would normally be unsatisfactory (to say the least) for the state to insist on trial thereafter. A trial would then
ipso facto be in breach of the right of the person charged to be tried without undue delay.
48 Auckland District Court v Attorney-General [1993] 2 NZLR 129 (CA).
49 Police v Auckland District Court (1999) 5 HRNZ 419 (HC).
the application for review, the effect of which was to end the prosecution.50
(c)R v Williams:51 56–58 months between arrest and trial. Asher J characterised this as inherent systemic delay that arose from an unfortunate combination of circumstances. And he held that the defendants had suffered serious adverse effects as a result of living their lives this long on bail. For those defendants on the periphery of the offending—and whose likely sentences of 3–4 years meant that they would have long been released after a timeous trial—he granted a stay.
[94] The short point is that under s 296(1)(b) of the CPA the Police must show that Judge Mill’s decision to stay the prosecution both was erroneous and resulted in a miscarriage of justice. Even if I thought that it was erroneous (which I do not), I would not be persuaded that it resulted in a miscarriage of justice.
Conclusion
[95]For the reasons I have given, my answers to the two questions of law were:
(a)Judge Mill was correct to find that Mr Burrows was not “in custody” at the time the report under s 38(1) of the CPMIP Act was ordered; and
(b)a stay was the appropriate remedy.
[96]The appeal was dismissed, accordingly.
Rebecca Ellis J
Solicitors:
Crown Solicitor’s Office, Wellington for Appellant
50 The review was for a decision not to grant an adjournment. Without that adjournment, the Police would be unable to obtain the requisite classifications of the objectionable material from the Classifications Office. Because Paterson J had previously declared that the proceedings could not continue without those further classifications, the refusal to adjourn brought the prosecution to an end.
51 R v Williams HC Auckland CRI 2007-404-6 and CRI 2007-404-7, 10 August 2007.
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