R v Corkran
[2023] NZHC 1602
•26 June 2023
IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY
I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE
CRI-2021-083-1688
[2023] NZHC 1602
THE KING v
JOHN RICHARD JAMES CORKRAN
Hearing: 19–20 June 2023 Counsel:
M Wilkinson-Smith and H R Hancock for Crown R Lithgow KC and A Jeremich for Defendant
Judgment:
26 June 2023
Reissued:
28 June 2023
JUDGMENT OF ISAC J
[Application for stay of proceedings]
Introduction
[1] Mr Corkran is 91 years old. He awaits trial in August 2023 on eight charges of cruelty to children.1 The offending is alleged to have occurred between 49 and 45 years ago at Lake Alice Hospital, where Mr Corkran was a psychiatric charge nurse. The Crown contends that during the relevant period Mr Corkran administered paraldehyde
1 Mr Corkran is charged under s 195 of the Crimes Act 1969 (as it stood in the 1970s, not the current version). It provided:
Every one is liable to imprisonment for a term not exceeding 5 years who, having the custody, control, or charge of any child under the age of 16 years, wilfully ill-treats or neglects the child, or wilfully causes or permits the child to be ill-treated, in a manner likely to cause him unnecessary suffering, actual bodily harm, injury to health, or any mental disorder or disability.
R v CORKRAN [2023] NZHC 1602 [28 June 2023]
injections to children and young people as punishment in circumstances giving rise to criminal responsibility.
[2]Mr Corkran made pre-trial applications for:
(a)a determination that the prosecution is barred by s 124 of the Mental Health Act 1969, which conferred an immunity from prosecution on health workers in certain circumstances;
(b)a stay of the proceeding on the basis that Mr Corkran’s right to a fair trial has been compromised;
(c)if the proceeding is not stayed, a determination that Mr Corkran is no longer fit to stand trial; and
(d)a discharge under s 147 of the Criminal Procedure Act 2011.
[3] A five-day pre-trial hearing was originally scheduled to determine these applications. However, after concluding evidence on Mr Corkran’s current mental and physical condition on the second day of the hearing, both counsel invited me to deliver a ruling on his application for a stay. They did so because if I were minded to grant the application the balance of Mr Corkran’s pre-trial applications would fall away.
[4] After adjourning to consider the evidence and submissions, I stayed the prosecution and delivered a results judgment. The balance of this judgment sets out my reasons for doing so. Given the interest of the complainants and members of the public in the reasons for my decision I have delivered judgment as quickly as possible.
Background
[5] Mr Corkran was employed at Lake Alice as a psychiatric nurse in 1960. He became a charge nurse in 1968.
[6] In 1972, Lake Alice opened a child and adolescent unit. From 1974, Mr Corkran became one of the charge nurses responsible for the unit.
[7] The essence of the Crown case is that between 1974 and 1977, Mr Corkran injected seven children with paraldehyde as a form of punishment. Paraldehyde was, at the time, used as a sedative. The evidence indicates that its administration caused very significant pain for hours and made the relevant limb unusable. It also caused those injected with the substance to have a distinct malodour.
[8] Public concern about the mistreatment of adult and adolescent patients at Lake Alice began to surface in the 1970s. Between 1976 and 2022 there were a number of investigations and reports by a range of state and international agencies, including New Zealand Police, the Ombudsman, medical bodies, the United Nations Committee Against Torture (UNCAT), and most recently, the Royal Commission of Inquiry into Historical Abuse in State Care.
[9] Sir Rodney Gallen released a damning report in 2006 into the mistreatment of patients at Lake Alice Hospital. He described the effects of electroconvulsive therapy on children as “chilling in the extreme”. He also noted: 2
There can be no doubt that paraldehyde was used by staff members on their own initiative, without any instruction from medical personnel, whenever the staff member concerned wished to impose a punishment, and on the basis of some of the statements it seems to have been administered on quite a capricious basis. The medical notes themselves indicate that paraldehyde was used as a punishment, and again I should emphasise that we are not here talking about adult or physically difficult patients, but children.
[10] In December 2019, UNCAT issued an adverse report calling on New Zealand to undertake a prompt, impartial and independent investigation into all allegations of torture and ill-treatment, including “where appropriate, the filing of specific torture and/or ill-treatment charges against perpetrators”. This finding informed the scope of a fourth Police investigation which had begun in October 2018. Initially its focus was on the use of electroconvulsive therapy, complaints of sexual abuse and the former psychiatrist responsible for the child and adolescent unit, Dr Selwyn Leeks,3 but it was
2 Rodney Gallen Report to confidential forum for former in-patients of psychiatric hospitals (11 May 2006) at [9] and [17]. While Justice Gallen was only appointed to determine the allocation of settlement moneys between claimants who had been patients at Lake Alice Hospital, his Honour clearly felt obliged to report on the complaints and allegations of mistreatment which he found, given their number and consistency, were in the main true and revealed an “appalling situation”.
3 New Zealand Police concluded that while there was sufficient evidence to commence a prosecution against Dr Leeks, he was by that stage unfit to stand trial.
broadened into a much wider investigation that began in February 2020 examining all Lake Alice allegations.4
[11] Against this complex and unsatisfactory background, Mr Corkran has been interviewed on four occasions at the request of New Zealand Police or the Crown. The first occurred in 2000, when he was interviewed by a private investigator engaged by the Crown Law Office. The second was in 2007, when he was interviewed by Detective Inspector Doug Brew. The third was a videotaped interview on 19 January 2021 conducted by a Detective Peter Boyd. During this interview, Mr Corkran was told that he was “not in any way, shape or form a suspect” but instead a witness to “establish the truth [as] to what’s been asserted by other people”. Detective Boyd also told him that “I don’t think anyone has said a word against you” in terms of the Police criminal investigations. Subsequently, Mr Corkran provided a statement to the Royal Commission of Inquiry into Abuse in Care in April 2021.
[12] It also seems that the Police position on Mr Corkran’s status changed in the course of 2021. By July, Police had resolved to interview Mr Corkran again, but this time as a suspect. Following legal advice, Mr Corkran exercised his right to silence.
[13] This procedural history is relevant for two reasons. First, while Mr Corkran exercised a right to silence when he was sought for interview on a fifth occasion, his previous statements appear to contain comments that may be relevant to the prosecution case. The second point is that Mr Corkran does not appear to have had the specific allegations in issue in the current proceeding put to him for a response. It follows that if he wished to provide the jury with an explanation of his conduct at odds with that of the complainants, he would almost certainly need to give evidence at the upcoming trial.
4 Royal Commission of Inquiry into Historical Abuse in State Care and in the Care of Faith-based Institutions Beautiful Children: Te Uiui o te Manga Tamariki me te Rangatahi ki Lake Alice | Inquiry into the Lake Alice Child and Adolescent Unit (December 2022) at [947]–[953].
Should the proceeding be stayed?
The application and the legal test
[14] Mr Corkran’s application for a permanent stay was advanced by his counsel, Mr Lithgow KC, on the basis of a combination of factors including:
(a)The events in issue are said to have taken place nearly 50 years ago. Such significant delay carries “presumptive prejudice”, including a large number of witnesses who are no longer available because they have passed away.
(b)The impact of extensive and adverse public reporting of events and allegation over decades.
(c)Mr Corkran’s advanced age, and mental and physical frailty, with its impact on his ability to mount an effective defence.
(d)An “imposed obligation to give evidence” because of the nature of the charges and his historical involvement with Police as a witness.
[15] The Crown accepts there has been undue delay. But in written submissions filed before the hearing it argued that there was no indication Mr Corkran could not receive a fair trial. In relation to Mr Corkran’s state of health, the Crown submitted:
In the present case no medical report has been received supporting a submission that a fair trial is not possible due to ill-health or advanced age.
[16] However, the Crown’s submissions were filed before the receipt of the most recent evidence on Mr Corkran’s physical and mental functioning. Having heard the evidence of the health assessors, while not making any concession, Ms Wilkinson- Smith did not expand upon her written submissions. I took her to acknowledge that the evidence raised serious questions about Mr Corkran’s ability to effectively participate in a trial and the risk to a fair trial caused by nearly 50 years of delay.
Stay of proceedings
[17] The law provides that before a person can be convicted and punished for a crime they must have the mental and physical capacity to effectively participate in their trial. As the Lord Chief Justice once said:5
Throughout history, seriously anti-social acts, particularly acts of violence, have been committed by people whose mental capacity was such that they… could not fairly be required to stand trial. Such cases pose an inescapable public, moral and human rights dilemma: for while such people may present a continuing danger from which the public deserve to be protected, it would be offensive to visit the full rigour of the law on those who are not… able to defend themselves, as an ordinary person of sound mind would be taken to be…
[18] Collins J expressed a similar concern in R v S. Noting that the right to a fair trial guaranteed by s 25(a) of the New Zealand Bills of Rights Act 1991 is inviolate, he observed:6
If a defendant cannot receive a fair trial because of the effects of his or her medical and/or physical impairment, then the proceedings must be stayed. There is no public interest consideration that needs to be weighed in these circumstances because there is no legitimate public interest in a defendant receiving an unfair trial.
[19] Historically the power to stay criminal proceedings involved the exercise of inherent jurisdiction.7 In R v Horseferry Road Magistrates’ Court, ex p Bennett, Lord Lowry identified two categories of case where a stay may be granted—those where a fair trial was no longer possible, and those where the prosecution’s conduct was so improper that it offends the court’s sense of justice and propriety:8
I consider that a court has a discretion to stay any criminal proceedings on the ground that to try those proceedings will amount to an abuse of its own process either (1) because it will be impossible (usually by reason of delay) to give the accused a fair trial or (2) because it offends the court's sense of justice and propriety to be asked to try the accused in the circumstances of a particular case. I agree that prima facie it is the duty of a court to try a person who is charged before it with an offence which the court has power to try and therefore that the jurisdiction to stay must be exercised carefully and sparingly and only for very compelling reasons. The discretion to stay is not a
5 R v Antoine [2001] AC 340 (HL) at 344 per Lord Bingham of Cornhill CJ.
6 R v S [2015] NZHC 1862 at [34].
7 Connelly v Director of Public Prosecutions [1964] AC 1254 (HL) at 1347.
8 R v Horseferry Road Magistrates’ Court, ex p Bennett [1994] 1 AC 42 (HL) at 74, approved in
Fox v Attorney-General [2002] 3 NZLR 62 (CA) at [36].
disciplinary jurisdiction and ought not to be exercised in order to express the court’s disapproval of official conduct.
[20] The present case falls squarely within the first category. However, the court’s jurisdiction in relation to such cases stems not from its inherent power, but from the Bill of Rights itself.9 And in this regard, there is no such thing as a “partially fair trial”.10 A fair hearing and the right to present a defence are minimum standards of criminal procedure which apply in all cases.11
[21] A stay is warranted when a defendant has established, on the balance of probabilities, that their mental or physical health prevents them from adequately defending themselves as a result of an inability to give evidence.12
[22] Delay may be a discrete factor warranting a stay. The following principles were identified by the Supreme Court in CT v R:13
(a)Delay between alleged offending and prosecution does not, of itself, erase criminal liability.
(b)The inadequacy of any explanation for delay is not itself a ground for a stay, at least in the case of serious crime. But a judge should grant a stay if persuaded that, despite the operation of the burden and standard of proof and the steps which a trial judge must take to mitigate the risk of prejudice, there cannot be a fair trial.
(c)The exercise does not turn on whether the Judge is satisfied on the balance of probabilities as to any particular item of alleged prejudice (for instance, that the delay may have resulted in identifiable evidence
9 As the Court of Appeal held in Simpson v Attorney-General [1994] 3 NZLR 667 (CA) (Baigent’s Case), there must be effective remedies for breaches of the Bill of Rights. In Martin v District Court [1995] 2 NZLR 419 (CA) at 424, Cooke P in the context of the right in s 25(b) of the Bill of Rights to be tried without undue delay noted that the standard remedy under the Bill of Rights for undue delay “should logically be a stay”. See too Andrew Butler and Petra Butler The New Zealand Bill of Rights Act: a commentary (2nd ed, LexisNexis, Wellington, 2015) at [26.7.8]– [26.7.16], [26.8] and [26.9]
10 R v S, above n 6, at [44].
11 Bill of Rights Act 1990, s 25(a) and (e).
12 R v Magomadova [2015] AWLD 968 at [24], approved in R v S, above n 6, at [37]–[38].
13 CT v R [2014] NZSC 155, [2015] 1 NZLR 465 at [32].
that would have assisted the defendant is no longer available). Rather, what is required is a judicial evaluation based on assessments of the circumstances as they are at the time of trial and the likely prejudicial effects of delay.
(d)Relevant factors to the assessment may include the availability (or more commonly, the unavailability) of defence witnesses, relevant documents and independent evidence of whereabouts and activity, the general impact of time on memory, any deterioration in the defendant’s physical or mental health (with consequent impact on ability to mount a defence), indeterminacy as to the specifics of the alleged offending (particularly where an isolated act of offending is in issue) and the apparent strength or weakness of the Crown case.
(e)A defendant facing serious charges will usually have to point to tangible delay-related prejudice, although a combination of a very lengthy delay and a weak Crown case may justify a stay.
(f)Stay applications entail an evaluative assessment of all the facts of the case at hand.
Mental impairment and fitness to stand trial
[23] Under the Criminal Procedure (Mentally Impaired Persons) Act 2003 (CPMIP Act) the concept of “mental impairment” will generally require an assessment of whether a defendant can give “any necessary instructions” to their counsel in order to make their defence by giving their own version of the facts or, if necessary, telling the Court directly what that version of events is.14
[24] Ultimately, it is for the Judge to determine whether or not a defendant is fit to stand trial.15 The decision will be informed by the advice of health assessors, and may
14 R v Presser [1958] VR 45 (SC) at 48, approved in Hanara v R [2022] NZCA 608.
15 Hanara v R, above n 14, at [120].
involve considerations beyond medical assessments of a defendant’s mental impairment. Issues that may be relevant include:16
(a)the complexity of the trial;
(b)whether the defendant will need to give evidence; and
(c)any accommodations that can be made to the trial process to mitigate the effects of a defendant’s mental impairment.
[25] The Bill of Rights’ concern for a fair trial is also reflected in the assessment of a defendant’s mental impairment and its impact on fitness to stand trial. The Court of Appeal has recently reaffirmed, in Hanara v R, that the court must be satisfied of a defendant’s effective participation in a trial.17 Further, when considering fitness a health assessor should consider the cognitive demands associated with judicial proceedings, including whether a defendant may need to give evidence.18
[26] The Court also observed, as obiter, that capacity to make an informed election to give evidence engages the fundamental right of a defendant to present his or her defence affirmed in s 25(e) of the Bill of Rights.19 However, the Court of Appeal doubted a lack of capacity to give evidence would necessarily engage the right to a fair trial.20 Instead, it considered that where a defendant lacks the capacity to give evidence, but may still receive a fair trial, they cannot be unfit to stand trial.21
[27] Although this point makes no difference to the conclusion I have reached, in my view a trial involving a defendant who elects to give evidence but lacks the capacity to do so is by definition unfair. That is because the ability to give evidence in one’s defence is a precondition of a fair trial. It is also difficult to see why s 25(e) is only engaged when a defendant makes the election to give evidence but not when they endeavour to do so. I would be inclined to consider that where a defendant lacks the
16 At [120].
17 At [114].
18 At [118].
19 At [133]–[134].
20 At [140]–[146].
21 At [147].
capacity to give evidence the Court ought not embark on a further enquiry to determine whether a fair trial is still possible.
Mr Corkran’s physical and mental condition
[28] The Court received evidence from a range of medical practitioners addressing Mr Corkran’s physical and mental condition. This included two psychiatrists, Drs Oliver Hansby and Justin Barry-Walsh, a neuropsychologist, Dr Duncan Thomson, two urologists, and Mr Corkran’s general practitioner. The Court also received letters from two of Mr Corkran’s children outlining their observations of the decline in his health and functioning. The following picture is clearly established.
[29] Mr Corkran is dying. He has stage four metastatic prostate cancer. Recent scans reveal lesions in his bones. These are causing him pain which now requires the use of opioid painkillers. He also has a second form of cancer which may have spread to lymph nodes in his groin.
[30] Mr Corkran is not receiving treatment for his prostate cancer.22 A recent assessment by a urologist is that he likely has months, rather than years, to live. Given the disease is progressing, Mr Corkran’s level of pain will increase as time moves on. Family members have reported that the defendant now has difficulty swallowing and is unable to tolerate solid food. He also suffers from poor hearing and vision (he is blind in one eye), and spends most of his days sleeping. When he once enjoyed reading for pleasure, he is now unable to do so as it causes him headaches. He has been referred to a hospice by his general practitioner for further management.
[31] Mr Corkran’s physical condition led his general practitioner to state in a letter of 15 June 2023 that he “is not medically fit to attend the court hearing given his frailty related to the cancer”.
22 A recent urologists report of 15 June 2023 indicates that treatment by androgen deprivation therapies might put the metastatic skeletal lesions into remission but “does not greatly alter the life expectancy” of someone in Mr Corkran’s situation. It would, however, limit “the pain and prevents some of the complications such as obstruction of the urinary system or collapse/fracture of the spine leading to paralysis”.
[32] Dr Hansby and Dr Barry-Walsh confirm the defendant has a mental impairment in terms of s 38 of the CPMIP Act. They identify a mild neurocognitive disorder consistent with his age. In addition, he now presents with a major depressive disorder, which also affects his level of cognitive functioning. Both clinicians confirmed that the presence of pain and opioid use will exacerbate Mr Corkran’s mental impairment. They were not prepared to provide a definitive opinion that he is currently unfit to stand trial for the purposes of s 38 because that would depend on an assessment of what effective participation might require in the context of Mr Corkran’s trial, a matter they considered, responsibly, was for the Court. However, they both expressed “real concern” if what they described as a frail old man was to face a trial lasting up to eight weeks. In their view, the length of the trial, its complexity, and the requirement for Mr Corkran to attend a trial out of region will also materially degrade his ability to effectively participate.23
[33] Dr Hansby considered that with a trial of the length Mr Corkran faces, it would become increasingly less likely as the hearing progressed that any accommodations (such as shortened sitting hours or rest periods) would reduce the physical and cognitive fatigue caused by a long trial. As Mr Corkran’s cancer is progressive, Dr Hansby also noted that the disease will cause increasing fatigue unrelated to the pain Mr Corkran will experience.
[34] Dr Barry-Walsh noted that since he had prepared his first report in 2022, there was clear evidence that Mr Corkran’s mental capacity had deteriorated further. When asked whether Mr Corkran would be capable of giving evidence and being cross-examined after weeks of trial, Dr Barry-Walsh had “real concerns about his ability to do that”. In addition, Dr Barry-Walsh considered that the recent advice from Mr Corkran’s general practitioner about his general physical condition suggested there were “real questions” about Mr Corkran’s physical ability “to last the Court process”.
[35] Finally, Mr Corkran’s general practitioner, Dr Mohd Nazlee bin Abdullah, conducted a “mini-ACE” test in mid-May 2023 and observed clinical signs and symptoms consistent with Alzheimer’s dementia. He subsequently signed a certificate
23 Dr Hansby in evidence said that an out of region trial “would likely be a significant stressor and exacerbate his degree of mental impairment. Significantly so.”
of mental incapacity for an enduring power of attorney in relation to Mr Corkran’s personal care and welfare.
Consideration
[36] Mr Corkran has a major depressive disorder and is experiencing pain and fatigue consistent with stage four metastatic cancer. His mental and physical ability to contend with a trial are very significantly impaired. These difficulties are amplified by his visual and auditory deficits, and as his cancer progresses, they will grow worse. Despite this, it is also clear that he has capacity to plead to the charges, understands the nature and purpose of the proceedings, and understands their possible consequences. The only issue is whether I am satisfied that his mental and physical impairments cannot be accommodated sufficiently to ensure a fair trial.
[37]The factors which are particularly relevant to my assessment are:
(a)The length of the trial. It is expected to last between six and eight weeks.
(b)The trial’s complexity. There are eight charges and seven complainants. The Crown currently identifies 22 witnesses it intends to call. In addition, I was advised that criminal disclosure runs to approximately 64,000 pages, including hospital records dating back almost 50 years. Some of the complainants’ formal written statements and evidential video interviews run over 100 pages.
(c)The nature of the charges and the evidence against Mr Corkran leave me in little doubt that he will need to give an account of himself in evidence if he is to present a defence. The specific circumstances and context in which paraldehyde was administered will be central to the jury’s determination of whether it was administered as a punishment rather than for a therapeutic or other legitimate purpose. In that respect, paraldehyde was extensively used at Lake Alice as a sedative. The Crown does not appear to contend that its use per se was criminal.
[38] As Collins J noted in R v S, the adversarial nature of cross-examination of a defendant in a criminal trial can create serious challenges even for the most physically and mentally fit defendant. The process of cross-examination is “vastly different from the compassionate and understanding way in which health professionals… conduct interviews and assessments of patients in the position of [a mentally impaired defendant]”.24
[39] And therein lies the problem. Mr Corkran is a 91 year old man dying of cancer who has serious physical and mental impairments that, in my view, rob him of the ability to give evidence before a jury. My assessment of the evidence satisfies me that he is incapable of providing a clear or consistent account of his case should he choose to enter the witness box. He regularly loses his train of thought or is unable to remember the point of questioning. This may result in confabulation, where he accommodates a lack of memory or understanding by inventing details to “fill in the blanks”, or circumstantiality, where he is unable to give a clear or direct answer to a question. And I do not consider a fair trial can take place if Mr Corkran is incapable of giving evidence in his own defence. My assessment is that effective participation in this case would require that he be able to do so.
[40] Nor am I satisfied that Mr Corkran’s challenges can be accommodated in the context of a carefully managed trial. The expert evidence indicates that accommodations such as reduced sitting hours or regular breaks are unlikely to mitigate the combined effect of cognitive load, fatigue, pain, opiate use, a major depressive disorder, and their overall impact on Mr Corkran’s cognitive disorder over the course of an eight week out of region trial.
[41] I am also satisfied that Mr Corkran is not capable of providing “real time” instructions to counsel about the evidence either before the trial or as the trial unfolds. Both Dr Hansby and Dr Barry-Walsh considered it unlikely Mr Corkran could participate as an “active defendant” in a trial. I was left with the distinct impression that, at best, he would be left as a mere spectator in his own criminal trial.
24 R v S, above n 6, at [54].
[42] Finally, the very serious delay in this case has also affected Mr Corkran’s ability to have a fair trial. In the 47 years since the first official investigation into complaints about Lake Alice patients, 30 former employees who might have been able to give evidence for the defence have passed away.25 The total number of potential witnesses who are no longer available is over 50. Unsurprisingly, the delay has also affected Mr Corkran’s ability to recall and relay relevant events or understand and explain available evidence, such as medical records that still exists. Having regard to the principles identified by the Supreme Court in CT v R,26 the very serious delay in the present case and its impact on the availability of witnesses raises serious questions about the ability of Mr Corkran to obtain a fair trial. It certainly supports the conclusion I have reached based on his physical and mental impairment.
[43] For these reasons, I concluded that even with accommodations Mr Corkran cannot receive a fair trial and the present case is one of those rare instances where it is necessary to stay the prosecution. Given there is no prospect Mr Corkran’s condition improving, the stay must be permanent.
[44] I have no doubt my decision will cause further distress to those who have endured grave injustices without voice or acknowledgment for many decades. But it would be wrong to allow such considerations to result in a further injustice to the defendant.
Does the immunity in s 124 of the Mental Health Act 1969 apply here?
[45] While it is unnecessary to do so, out of deference to the careful submissions from counsel I express my tentative views on Mr Corkran’s argument that he is entitled to an immunity from prosecution.
[46] Section 124 of the Mental Health Act 1969 provided workers in psychiatric institutions with a broad immunity against legal liability, and imposed stringent leave
25 As Mr Lithgow submitted, disclosure reveals an incomplete list of 30 staff who are deceased, including nurses and assistants in the Child and Adolescent Unit and also senior clinicians responsible for the unit including the Director General of Health, Dr Mirams, the medical superintendent, Dr Pugmire, and other psychiatrists familiar with the hospital and its operation.
26 As noted above at [22].
and limitation requirements in relation to the initiation of proceedings. The section relevantly provided:
124. Protection of persons acting under authority of Act
(1)Neither the Crown nor any person who does any act in pursuance or intended pursuance of any of the provisions of this Act shall be under any civil or criminal liability in respect of any such act, whether on the ground of want of jurisdiction, or mistake of law or fact, or any other ground, unless the person has acted in bad faith or without reasonable care.
(2)No proceedings, civil or criminal, shall be brought against the Crown or any person in any Court in respect of any such act except by leave of a Judge of the Supreme Court. Such leave shall not be given unless the Judge is satisfied that there is substantial ground for the contention that the person in respect of whose act or omission it is sought to bring the proceedings has acted in bad faith or without reasonable care.
(3)Notice of any application under subsection (2) of this section shall be given to the party against whom it is sought to bring the proceedings, and that party shall be entitled to be heard against the application.
(4)Leave to bring such proceedings shall not be granted unless application for such leave is made within six months after the act complained of, or, in the case of a continuance of injury or damage, within six months after the ceasing of such injury or damage...
[47] There are three important elements of the provision. The first is an immunity from prosecution. Subsection (1) provides an immunity against civil or criminal liability for acts done in the pursuance or intended pursuance of the Act unless the acts were done in bad faith or without reasonable care. The immunity applies to all acts that are honestly (even if mistakenly) thought to be in pursuance of the legislation, and could even extend to include acts which are known to be offences against the legislation but where the individual honestly considers that they were acting in the interests of the patients or for the protection of others.27
[48] The second element is a leave requirement. Subsection (2) provides that leave is required to bring litigation in relation to conduct done in pursuance of the Act. Leave shall only be granted if the Court is satisfied there is substantial ground for the contention that the acts were in bad faith or without reasonable care.
27 Crown Health Financing Agency v P [2008] NZCA 362, [2009] 2 NZLR 149 at [52] per Glazebrook J.
[49] The third component is a time bar. Subsection (4) requires, generally speaking, that an application for leave must be brought within six months of the act in question.
[50] The leading authorities on s 124 are the Court of Appeal’s decision in Crown Health Financing Agency v P,28 and the Supreme Court’s subsequent decision in B v Crown Health Financing Agency.29 The Crown’s initial argument was that the Supreme Court’s decision excluded the immunity in s 124 from applying to “informal patients”. Given that all the complainants in the present case were informal patients, the Crown argued Mr Corkran cannot avail himself of the immunity.30
[51] In order to understand the submissions made by Mr Corkran in response it is useful to begin with some context.
[52] The proceedings in the Crown Health Financing Agency cases concerned civil claims by former patients at the Porirua and Lake Alice psychiatric hospitals in relation to allegations of abuse and mistreatment while they were patients in the 1960’s and early 1970’s. The claimants had not sought leave to bring the proceedings as required by s 124 (and its predecessor provision) and were out of time to do so. They argued that leave was not required because the conduct complained of was not in the intended pursuance of the legislation and was therefore outside the scope of the immunity. The defendant sought to have the claims struck out for non-compliance with the leave requirements.
[53] The issues before the Court of Appeal involved, broadly, the correct approach to the immunity and leave provisions, and the appropriate process for determining whether leave was required. Two questions were whether the immunity and leave provisions applied to informal patients and, if so, whether that continued to be the case after 1 April 1972, when nearly all psychiatric hospitals were brought under the control of hospital boards. The Court of Appeal held that the s 124 immunity did apply
28 Crown Health Financing Agency v P, above n 27.
29 B v Crown Health Financing Agency [2009] NZSC 97, [2010] 1 NZLR 338.
30 The exception is that one of the claimants was admitted to Lake Alice on three occasions as an informal patient, and on a fourth and final occasion was committed as an ordinary patient under s 19 of the Act.
to informal as well as committed patients, and continued to do so after the 1972 health reforms.
[54] On appeal, the Supreme Court’s decision was confined to consideration of those two (narrow) issues.31 It overturned the Court of Appeal’s judgment in part, holding that the immunity in s 124 did not apply to informal patients in the care of hospital boards after 1 April 1972.32 Otherwise, it dismissed the appeal.
[55] The effect and importance of these conclusions became apparent during Mr Lithgow’s submissions on the first morning of the hearing. As he pointed out, properly understood the Supreme Court did not entirely overturn the Court of Appeal’s finding that the s 124 immunity could apply to claims made by both informal and formal patients after the 1972 health reforms. Rather, the scope of leave, and the Supreme Court’s final order, reflect that the critical issue, at least in terms of the present case, was not the status of the patient but rather the status of the institution.
[56] As Mr Lithgow highlighted, the Supreme Court was concerned to clarify that the immunity ceased to apply to informal patients treated in hospitals or institutions which, after the 1972 health reforms, were no longer under the control of the Crown and instead fell under the auspices of a health board. By contrast, professional staff employed in a psychiatric hospital or institution which remained in Crown control continued to enjoy the immunity provided by s 124, irrespective of the admission status of the patients. While the Crown was not prepared to concede the issue, the findings of the High Court and the Royal Commission strongly suggest that Lake Alice continued to operate as a Crown institution until 1986.33 It would follow that the complainants in the present case remained under the control of the Crown, and Mr Corkran would be entitled to raise the immunity as a bar to the prosecution. The more difficult question is the process by which the Court should determine whether a defendant is entitled to the benefit of the immunity, to which I now turn.
31 B v Crown Health Financing Agency, above n 29, at [19].
32 At [74]–[75].
33 P v Crown Health Funding Agency HC Wellington CIV-2003-485-1625 at [8]; and Royal Commission of Inquiry, above n 4, at [664].
Process
[57] In contrast to the present case, the higher courts in Crown Health Financing Agency were concerned with a civil claim by former patients at the Lake Alice and Porirua psychiatric hospitals. All of the judges in the Court of Appeal considered the appropriate process by which a court should determine whether or not a defendant was entitled to the immunity but arrived at different views.
[58] Glazebrook J considered that a defendant wishing to rely on s 124 should either seek to have the leave question determined as a “preliminary issue”, or apply to strike the claim out.34 Where the issue of leave is to be tried as a preliminary issue, her Honour considered that could be determined on the basis of affidavit evidence,35 and claimants would bear the onus of “proving” that leave was not required.36 The question of leave would involve the court engaging in an evaluative (and, to a degree, hypothetical) exercise.37 In cases involving conflicting evidence, her Honour observed that “unless there had been cross-examination”, the judge may decide that the outcome should await trial.38
[59] Hammond J suggested staying all of the proceedings to allow the claimants an opportunity to file an originating application seeking a determination that the acts complained of fell outside the immunity.39 His Honour anticipated that the originating applications would be supported by affidavits and would typically be decided on the papers, although in some rare cases may warrant a full “trial” on the question of leave.40
[60] O’Regan and Robertson JJ considered that an application to strike out a claim is the appropriate procedure where the need to obtain leave is disputed.41 Where the
34 Crown Health Financing Agency v P, above n 27, at [66].
35 At [66].
36 At [67]. Claimants would have to “prove” first that the conduct was not in pursuance of the Act (for instance, for the control and protection of those both inside and outside the institution), and second, that a person could not honestly have thought the conduct was for such a purpose.
37 At [68].
38 At [69].
39 At [260].
40 At [262].
41 At [288].
leave issue cannot be resolved before trial, they considered, like Glazebrook J, that a preliminary determination may be an available alternative.42
[61] Baragwanath J disagreed that the strike out or preliminary determination procedures were appropriate.43 Instead, he suggested an alternative procedure whereby claimants provide on oath the particulars of their claim and the evidence supporting it.44 If the defendant files an affidavit raising an issue as to whether the conduct in question was in pursuance or intended pursuance of the legislation, the Court would have the following options:45
(a)strike out the claim as brought without leave;
(b)reject the case of one side or the other (as frequently done in summary judgment cases);
(c)order trial of an issue whether leave is required; or
(d)in an exceptional case, allow the case to go to trial to allow facts to be found in order to determine whether the absence of leave is fatal.
[62] Although the judges in the Court of Appeal came to different conclusions on the appropriate process, they were unanimous in accepting that the question of the immunity and leave will require a pre-trial enquiry at which the party asserting the immunity must have an opportunity to provide evidence to contradict the claimant’s assertions. In addition, they also appear to have accepted that in appropriate cases the enquiry may well require a determination of contested facts. This approach—an evidential enquiry into the merits of the claim to the immunity—is also consistent with the criminal cases Ms Wilkinson-Smith referred me to, where the question was dealt with in a pre-trial hearing “in the nature of a voir dire”.46
42 At [289].
43 At [347]–[349].
44 At [350].
45 At [352].
46 Reille v Police [1993] 1 NZLR 587 (HC) at 594; and R v Heslehurst [2009] NZCA 444 at [21].
[63] Crown counsel initially submitted that in a criminal case the availability of the immunity should be determined by reference to the allegations contained in the formal written statements of the complainants and on the papers. In essence, I was invited to approach the immunity as though it were an application for a discharge under s 147 of the Criminal Procedure Act, where the Crown evidence is taken at its highest.
[64] I have little hesitation rejecting these propositions. To do so would render the immunity largely redundant and in most cases require a defendant entitled to an immunity from prosecution to go through the ordeal of a trial. Moreover, s 124 places the onus on a plaintiff, or the Crown, to seek leave before commencing a proceeding. A judge may not grant leave unless satisfied “there is substantial ground for the contention that the person [claiming the immunity] has acted in bad faith or without reasonable excuse”. It follows from this, in keeping with Glazebrook J’s observations, that it is for the prosecution to “prove” first that the conduct was not in pursuance of the Act (for instance, for the control and protection of those both inside and outside the institution), and second, that the defendant could not honestly have thought the conduct was for such a purpose.
[65] Ultimately, Ms Wilkinson-Smith was driven to accept that a pre-trial factual enquiry would be necessary, at which Mr Corkran would be permitted to provide evidence supporting his claim to the immunity. The enquiry might also require determination of contested facts after hearing evidence. Such an approach seems entirely consistent with the judgments in Crown Health Financing Agency, and the criminal cases the Crown relied on before me.
[66] Accordingly, I reached the preliminary view that even if I had not granted Mr Corkran’s application for a stay based on prejudice to his fair trial rights, the proceeding ought to be stayed conditionally in order to complete an enquiry into the availability of the s 124 immunity. That has not been necessary. But given Mr Corkran’s frail state of health, obvious difficulties would arise for any such enquiry, and there would be little prospect of determining the question before the scheduled trial, putting it at risk. These are further considerations going to the prejudice Mr Corkran would have experienced had I not stayed the prosecution.
Is Mr Corkran fit to stand trial?
[67] Given I have granted Mr Corkran’s application for a stay, it is unnecessary to determine whether he is unfit to stand trial under the CPMIP Act.
Conclusion and result
[68]The charges against Mr Corkran are stayed.
[69] Given Mr Corkran no longer faces a trial the suppression order I made at the commencement of the hearing is no longer needed to preserve fair trial rights. It is revoked accordingly.
Isac J
Solicitors:
Crown Solicitor, Whanganui for Attorney-General
0
4
0