R v E - [2015] NZHC 2646

ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF DEFENDANT PURSUANT TO S 200 CRIMINAL PROCEDURE ACT 2011.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2014-090-001416 [2015] NZHC 2646

THE QUEEN

v

E

Hearing: 27 October 2015

Appearances:

J L S Shaw for Crown
T J Darby for Defendant

Judgment:

28 October 2015

JUDGMENT OF COURTNEY J

This judgment was delivered by Justice Courtney on 28 October 2015 at 4.30 pm
pursuant to R 11.5 of the High Court Rules

Registrar / Deputy Registrar

Date……………………….

R v E [2015] NZHC 2646 [28 October 2015]

Introduction

[1] E is facing one representative charge of being party to attempted sexual violation by rape1 and one representative charge of being party to sexual violation by unlawful sexual connection.2 The person charged as principal is K, a friend of E. The complainant is E’s daughter, who was aged between 9 and 13 at the time of the offending. It is alleged that E facilitated and encouraged the complainant to acquiesce in sexual activity with K.

[2] Both E and K are of limited intellect and both sustained head injuries as children. Following hearings under ss 9 and 14 of the Criminal Procedure (Mentally Impaired Persons) Act 2009 (CPMIP) K has been found to be unfit to stand trial. He is presently awaiting assessment to determine the most suitable method of dealing with him.3 The same process is underway in relation to E.

[3] Unusually, E had already pleaded guilty to the charges before the CPMIP process was triggered. However, a report obtained under s 38(1)(c) and (d) raised serious issues about E’s fitness to plead and to instruct counsel, leading to the direction for a s 9 hearing rather than sentencing. This process is permissible
notwithstanding the guilty plea.4

[4] Under s 9 a court may not find a defendant is unfit to stand trial unless satisfied, on the balance of probabilities, that the evidence against him or her 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”. Section 13 provides that if the Court is satisfied as to the matters specified in s 9 it must proceed to determine the matters specified in s 14. Section 14 requires the Court to obtain the evidence of two health assessors as to whether the defendant is mentally impaired and, if satisfied on that point, record that finding and allow the parties to be heard as to
whether the defendant is unfit to stand trial.

1      Crimes Act 1961, ss 129(1) and (66(1).
2      Crimes Act 1961, s 128(1) and s 66(1).
3      Criminal Procedure (Mentally Impaired Persons) Act 2009, s 23(4) and 23(5).
4      R v Komene [2009] NZHC 1347; Dalley v R [2009] NZCA 419.

[5] At a hearing before me on 27 October 2015 I was satisfied that E had caused the acts that formed the basis of the offences with…

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading R v E

Details

AGLC: R v E [2015] NZHC 2646
Case: [2015] NZHC 2646
Decision Date: 28 October 2015

CaseChat Overview and Summary

In the case of R v E, the defendant, E, is facing charges of being party to attempted sexual violation by rape and being party to sexual violation by unlawful sexual connection. The alleged victim is E's daughter, who was aged between nine and thirteen at the time of the offending. The person charged as the principal offender is K, a friend of E. The primary issue before the court was whether E was fit to stand trial, following a guilty plea and concerns raised about her fitness to plead and instruct counsel. The court had to determine whether E had caused the acts that formed the basis of the charges against her, as required by section 9 of the Criminal Procedure (Mentally Impaired Persons) Act 2009.

The court found that E had indeed caused the acts that formed the basis of the charges against her. The complainant's evidential interviews provided clear evidence of E's involvement in facilitating and encouraging the sexual activity between K and the complainant. This included telling the complainant to go into the room with K, instructing her to take off her clothes when K asked her to do so, threatening the complainant with violence, and, on some occasions, actually inflicting violence on her. Based on this evidence, the court was satisfied that E had caused the acts that formed the basis for the charges. Consequently, the court directed that an assessment report be provided under section 38(1)(a) for the purpose of assisting the court to determine whether E was unfit to stand trial.

The court also varied E's bail conditions to require her to attend an interview at the Mason Clinic on 20 November 2015 to facilitate the section 38 report. Furthermore, the court made interim orders for the suppression of the names and identifying details of E and the complainant, noting that an application for permanent name suppression was likely to be made. The court's decision was based on the clear evidence provided by the complainant and the necessity to assess E's fitness to stand trial.

Orders