R v Greig
[2025] NZHC 1064
•6 May 2025
IN THE HIGH COURT OF NEW ZEALAND CHRISTCHURCH REGISTRY
I TE KŌTI MATUA O AOTEAROA ŌTAUTAHI ROHE
CRI-2024-009-004424
[2025] NZHC 1064
THE KING v
ALEX ROBIN GREIG
Hearing: On the papers Appearances:
A M Harvey for Crown
K J Basire and J D Lucas for Defendant
Judgment:
6 May 2025
JUDGMENT OF EATON J
This judgment was delivered by me on …….. at ……… pursuant to Rule 11.5 of the High Court Rules
Registrar/Deputy Registrar Date:
R v GREIG [2025] NZHC 1064 [6 May 2025]
Introduction
[1] Alex Robin Greig (aged 37) faces trial on two charges of manslaughter1 and three charges of being a person in charge of a motor vehicle causing injury.2
[2] I received reports from two health assessors who have considered Mr Greig’s fitness to stand trial. The expert evidence is unanimous that Mr Greig is currently unfit to stand trial. This judgment considers whether Mr Greig is fit to stand trial under s 8A of the Criminal Procedure (Mentally Impaired Persons) Act 2003 (CP(MIP) Act). I am required to determine whether, given the evidence of the experts, the defendant is mentally impaired and whether he is unfit to stand trial.3 If he is found fit, the court must continue proceedings.4 If he is found unfit, the court must then inquire into the defendant’s involvement in the offence.5
The charges
[3] Mr Greig’s learner’s licence expired in May 2023. After this, he was unlicenced. The Crown alleges that on 30 December 2023, Mr Greig was driving on Tunnel Road heading towards Christchurch from Lyttleton. Mr Greig was driving a Toyota owned by Mr Monsall, who was, at the time of the incident giving rise to the charges, the front seat passenger, but who is unknown to the defendant. While in the Lyttleton tunnel, Mr Greig was driving over 100 km/h in a 50 km/h zone. Approximately 1.5 km after leaving the tunnel, prior to the Port Hills Road offramp, the motorist ahead of Mr Greig indicated to take the exit. This section of the road has a speed limit of 100 km/h and has two lanes heading in both directions. A centre barrier, separating the lanes, is in place from this point in the road.
[4] Mr Greig overtook the other motorist and in doing so ended up on the wrong side of the centre barrier, driving north in the south bound lanes. He approached a slight bend in the road and narrowly missed an oncoming motorist. At approximately
11.57 pm Mr Greig’s vehicle collided head-on with a Chevrolet vehicle. A driver and
1 Crimes Act ss 160(2)(a), 171 and 177; maximum penalty life imprisonment.
2 Land Transport Act 1998, s 61(1)(b); maximum penalty five years’ imprisonment or $20,000 fine.
3 Criminal Procedure (Mentally Impaired Persons) Act 2003, s 8A(2).
4 Section 8A(4).
5 Section 8A(5).
two passengers were within the Chevrolet. The impact caused the Chevrolet to explode into a large fireball. After the impact, both the cars spun sideways. While Mr Greig’s vehicle was spinning it was hit by a motorcyclist. At the time of the crash, Mr Greig’s average speed was estimated between 120–139 km/h and the Chevrolet’s average speed was estimated between 101–118 km/h.
[5] Two occupants of the Chevrolet were declared dead at the scene. The remaining occupant, the passenger in the car Mr Greig was driving and the motorcyclist were taken to hospital in a critical condition.
[6] A blood sample was taken from Mr Greig approximately six hours after the crash. The results revealed the presence of THC and a blood alcohol level of 109 milligrams of alcohol per 100 millilitres of blood. Mr Greig stated he had no memory of the crash and could not remember anything after 25 December 2023.
Fitness to stand trial — legal principles
[7] The legal principles that apply are not in dispute. The CP(MIP) Act outlines the regime for determining if a defendant is unfit to stand trial and, if so, what should occur after such a finding.
[8]Section 4 of the CP(MIP) Act defines “unfit to stand trial” as follows:
unfit to stand trial, in relation to a defendant,—
(a)means a defendant who is unable, due to mental impairment, to conduct a defence or to instruct counsel to do so; and
(b)includes a defendant who, due to mental impairment, is unable—
(i)to plead:
(ii)to adequately understand the nature or purpose or possible consequences of the proceedings:
(iii)to communicate adequately with counsel for the purposes of conducting a defence
…
[9]Section 8A prescribes the process to determine fitness:
8A Determining if defendant unfit to stand trial
(1)The court must receive the evidence of 2 health assessors as to whether the defendant is mentally impaired.
(2)If the court is satisfied on the evidence given under subsection (1) that the defendant is mentally impaired, the court must record a finding to that effect and—
(a)give each party an opportunity to be heard and to present evidence as to whether the defendant is unfit to stand trial; and
(b)find whether or not the defendant is unfit to stand trial; and
(c)record the finding made under paragraph (b).
(3)The standard of proof required for a finding under subsection (2) is the balance of probabilities.
(4)If the court records a finding under subsection (2) that the defendant is fit to stand trial, the court must continue the proceedings.
(5)If the court records a finding under subsection (2) that the defendant is unfit to stand trial, the court must inquire into the defendant’s involvement in the offence under section 10, 11, or 12, as the case requires.
[10] The Court of Appeal in Nonu v R referred to the three legal principles underpinning the fitness to stand trial requirements.6
[26] …First, the requirements promote fairness to a defendant by protecting his or her rights to a fair trial and to present a defence. Second, the requirements also promote the integrity and legitimacy of the criminal justice system by only holding defendants accountable if they understand the reasons why they have been prosecuted, convicted and punished. Third, the requirements enhance society’s interest in having a reliable criminal justice system by not placing on trial defendants who, through lack of fitness, are unable to advance an available defence.
(footnotes omitted)
[11]The Court also said:
[29] An inquiry into a defendant’s fitness to stand trial, however, involves more than an assessment of whether or not the defendant can participate in his or her trial by simply performing relevant trial functions. A defendant must also have the capacity to participate effectively in his or her trial. This involves an assessment of the defendant’s intellectual capacity to carry out relevant trial
6 Nonu v R [2017] NZCA 170.
functions. The reason for the need to inquire into the defendant’s capacity to participate effectively in his or her trial is that the principles we have explained above are not honoured in cases where, for example, a defendant superficially appears to participate in his or her trial but in reality is, because of intellectual disability, nothing more than a bystander.
(footnote omitted)
[12] Importantly, Nonu decided that the legal standard for fitness was that of effective participation.7 This means a defendant need not be capable of perfect participation to be deemed fit to stand trial.
[13] In Hanara v R, the Court of Appeal reviewed and affirmed the principles outlined in Nonu but also emphasised s 25(i) of the New Zealand Bill of Rights Act 1990 and the importance of international instruments such as art 13 of the United Nations Convention on the Rights of Persons with Disabilities and the need to “ensure effective access to justice for persons with disabilities”.8
[14]The Court of Appeal set out the relevant factors for the determination.
[120] It is for a judge to ultimately determine whether or not a defendant is fit to stand trial. That decision will be informed by the advice of health assessors, particularly when determining if the defendant has a mental impairment. The assessment of whether or not a defendant is fit to stand trial may, however, involve considerations beyond medical assessments of a defendant’s mental impairment. Issues such as the complexity of the trial, whether the defendant will need to give evidence, what if any communication assistance is available for the defendant, and what changes can be made to the trial process to assist the defendant may be significant considerations in assessing whether or not a defendant is fit to stand trial.
(footnote omitted)
[15] The Supreme Court has since agreed that the “effective participation” approach in Nonu v R is appropriate for assessing trial fitness.9
7 At [29].
8 Hanara v R [2022] NZCA 608 at [111] referring to the Convention on the Rights of Persons with Disabilities 2515 UNTS 3 (opened for signature 30 March 2007, entered into force 3 May 2008, ratified by New Zealand March 2011).
9 Tihema v R [2024] NZSC 112 at [46].
Evidence
[16] Two experts, Dr Foulds and Dr Dean, both consultant psychiatrists, were requested to prepare reports for the Court under s 38 of the CP(MIP) Act on whether Mr Greig was fit to stand trial. They each provided an initial psychiatric report in November 2024 following interviews with Mr Greig in October and November 2024. Dr Foulds’ first report was dated 1 November 2024. Dr Dean’s first report was dated 21 November 2024. They were each then instructed to provide updates in early 2025 and were provided supplementary questions or routes of inquiry. Dr Dean provided an addendum to his initial report dated 3 March 2025. Dr Foulds reinterviewed Mr Greig on 10 March 2025 and provided an updated report dated 12 March 2025.
[17]The Court has been provided a joint memorandum of health assessors, dated
16 April 2025. This summarises the conclusions, reaches a unanimous recommendation and is signed by both Dr Foulds and Dr Dean.
[18] The joint memorandum concludes that Mr Greig sustained a severe traumatic brain injury in the events of 30 December 2023. His brain imaging confirms he has had a diffuse axonal injury. His poor clinical trajectory is consistent with what is expected from the imaging findings.
[19] The experts could not exclude the possibility that Mr Greig’s medication is having some negative impact on his fatigue and cognition. However, they note that the impact of his medication is likely to be no more than minor; it appears not to be feasible (at least in the short to medium term) to withdraw some medications that may be contributing to fatigue and memory problems; and a substantial improvement in Mr Greig’s cognitive functioning would need to take place before Mr Greig would be fit to stand trial. The experts expect little change based on the natural history of diffuse axonal injury of the kind Mr Greig has experienced. Consequently, it remains the view of both experts that Mr Greig is unfit to stand trial.
[20]I now outline the reasons the experts provided in reaching this conclusion.
Dr Foulds’ reports
[21] In his initial report, Dr Foulds recorded that Mr Greig struggled with fatigue, difficulties with attention and registering information, poor memory, and impaired language, and has shown problems with cognition. Notably, Mr Greig reported no memory of the driving incident. Dr Foulds reported that this recovery is consistent with the mechanism of his injury and initial severity of his brain injury.
[22] Dr Foulds concluded that Mr Greig has a mental impairment due to a diffuse axonal injury of the brain. He initially gave limited detail about his charges. He did not know the maximum penalty for manslaughter. When told it was life imprisonment, he did not retain this information during the interview. Mr Greig understood the meaning of guilty and not guilty pleas. However, Dr Foulds opines that to plead to the charges, Mr Greig would need to be able to retain information about the potential consequences of each plea option. He would need to understand potential defence strategies and talk these options through with counsel and weigh up and decide them for himself. Dr Foulds noted his poor memory would make this extremely difficult.
[23] If Mr Greig could be supported to enter a plea, Dr Foulds considers he could not participate effectively in an evidential trial. He would struggle to understand evidence as it is presented and would retain little information about the evidence afterwards. Due to his fatigue, breaks every 30 minutes would be needed.
[24] Further, Dr Foulds reports the appointment of a communication assistant (CA) would not make a meaningful difference to Mr Greig’s ability to make decisions, communicate them, or participate in court because his deficits go beyond problems with language and involve profound deficits in his memory faculties.
[25] In his 12 March report, Dr Foulds presents the results from cognitive testing. He reports that Mr Greig suffers from cognitive impairments, particularly in relation to attention, memory and language and that he experiences fatigue. Applying the results of the ACE-III test, Mr Greig’s received a cognitive score similar to that expected of people with mild to moderate dementia.
[26] Dr Foulds concluded that Mr Greig could not hold information long enough in his memory to undertake such a complex and high-stakes decision-making process as entering pleas and undergoing a trial. He found he was not fit to enter a plea. Dr Foulds found Mr Greig had lost his memories and knowledge of the criminal justice system. He concludes the key issue was information retention as to the charges faced and the consequent ability to weigh up that information to enable decision making. Dr Foulds found no evidence of malingering.
[27] Reporting directly on the memory and recall of Mr Greig, Dr Foulds says Mr Greig recalled hurting someone in a driving crash, and that two people died. However, he could not distinguish between murder and manslaughter. He also could not distinguish between guilty and not guilty and what a plea would mean. This was notably different to the October interview, where Mr Greig could explain the impact of a plea, albeit with difficulty.
Dr Dean’s reports
[28] In Dr Dean’s initial report, he describes Mr Greig as presenting with cognitive difficulties, memory deficits and lack of attention. The defendant struggled with understanding, focus, recall, processing information and communicating.
[29] Mr Greig was able to identify that he was facing charges relating to a driving incident but could not recall the incident nor that he faced a charge of manslaughter. When discussing the consequences of a not guilty plea, he described “lawyers fighting in court” but did not know what a jury was or how it was selected. He was unable to identify any evidence that might be before the court and could not recall his blood sample being taken nor being told he was intoxicated at the time of the accident.
[30] Dr Dean reported that Mr Greig has a mild to moderate cognitive impairment secondary to brain injury. This has led to a limited capacity to understand the nature and purposes of proceedings against him, a poor recollection of the accident, inability to process court information, and limitations in his capacity to make competent decisions about these proceedings. He does not retain new information and can become fixated on single matters. Even with assistance, he is unlikely to adequately follow proceedings.
[31] Dr Dean recognised that there is a different threshold for fitness should Mr Greig choose to enter a guilty plea. He reports that should Mr Greig enter a guilty plea it is likely that he would struggle to recall he had entered a plea without considerable support given his ability to retain and recall information is impaired.
[32] Consequently, Dr Dean opined Mr Greig was unfit to enter a plea and unfit to stand trial. He submitted the only disposal option available to the court would be a discharge under s 25(1)(d) of the CP(MIP) Act.
[33] In his 3 March addendum, Dr Dean reported that as improvement for traumatic brain injuries such as this usually occurs in the first 12 months following the injury, it was unlikely Mr Greig would see substantial improvement in function.
[34] Dr Dean reported that the major impediment to Mr Greig being fit to stand trial was his ability to process, retain and retrieve new information. Mr Greig’s cognitive impairment impacting on fitness is immediate recall and processing of new information. When pressed, he could demonstrate some knowledge of court processes however had no knowledge of his charges at the outside of the assessment, but later showed some capacity to broadly understand a trial would not result from a not guilty plea. Dr Dean found that if Mr Greig is unable to remember the information provided to him, then no amount of time will help him perform the tasks required of him to be fit to stand trial.
Submissions
[35] Neither Mr Harvey, for the Crown or Mr Lucas, for Mr Greig, made submissions as regards the fitness determination. Both were content for the court to determine the issues with reliance on the reports of the health assessors.
Analysis
[36] I have considered the written reports of both psychiatrists and their joint memorandum. There is a clear consensus of expert opinion such that I am satisfied
that Mr Greig is unfit to stand trial. It is however for the Court and “not for medical [professionals] of whatever eminence” to determine this issue.10
[37] Both experts considered Mr Greig was unable to recall specifically which charges he was facing, the facts of the offending, any evidence that might be put before the court, the role of a jury, or the potential outcomes of a plea. Nor, when discussed with Mr Greig, was he able to retain knowledge and recall these details after a short period. Given these limitations, I accept the opinion of both experts that Mr Greig did not have sufficient understanding to make an informed plea to the charges he faces, understand the legal process to a sufficient degree to effectively follow and participate in the trial, nor communicate adequately with counsel for the purposes of conducting a defence, under ss 4(b)(i), (ii) and (iii) of the CP(MIP) Act. In other words, he lacks the capacity to participate effectively in his trial.
[38] I also find that, in these circumstances, a postponement of the fitness determination is not appropriate. As reported by the experts, given the time since the original injury, it is unlikely that Mr Greig will see substantial improvement in cognitive function. And while Dr Foulds originally recommended that Mr Greig’s medications be amended to allow for a reduction in fatigue and improvement in cognitive functioning, both experts have since confirmed that this amendment to his medications is not possible in the short- to mid-term nor will this change in medications likely improve any cognitive functioning for the purposes of fitness to stand trial.
[39] I am conscious that the engagement of a CA was considered, but it was determined a CA would not be of sufficient assistance to overcome the challenges posed by Mr Greig’s impairment, as the primary issues do not relate to the defendant’s language or communication ability, but rather his recall, comprehension and decision-making abilities.
10 Mathew Downs (ed) Adams on Criminal Law – Procedure (online ed, Thomson Reuters) at [CM8A.02], citing R v Rivett (1950) 34 Cr App R 87 (Crim App).
Result
[40] Based on the evidence I have read I am satisfied on the balance of probabilities, that:
(a)Mr Greig is mentally impaired;
(b)he is unfit to stand trial because, due to his mental impairment, he is unable to plead, to adequately understand the nature or purpose or possible consequences of the proceedings or to communicate adequately with counsel for the purposes of conducting a defence; and
(c)this is not an appropriate case in which to postpone the fitness finding after the evidence has concluded.
[41] The next step in the process is for the Court to enquire into Mr Greig’s involvement in the offence under s 10 of the CP(MIP) Act. It is at this stage where Mr Greig’s involvement can be determined in an appropriate manner as the public interest requires.
[42]I direct the registrar to schedule an involvement hearing.
...................................................
Eaton J
Solicitors:
Crown Solicitors, Christchurch
Counsel:
K J Basire, Barrister, Christchurch J D Lucas, Barrister, Christchurch