R v H

Case [2014] NZHC 1423 23 June 2014

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ORDER PROHIBITING PUBLICATION OF NAME AND IDENTIFYING PARTICULARS OF ACCUSED UNTIL COMPLETION OF TRIAL

IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

CRI-2013-091-1241 [2014] NZHC 1423

THE QUEEN

v

RUKA TE PONO HEMOPO

Hearing: 18 June 2014

Counsel:

G J Burston for Crown
Mr Hemopo in person
V C Nisbet, Amicus Curiae

Judgment:

23 June 2014

JUDGMENT OF THE HON JUSTICE KÓS (Fitness to plead: reasons)

[1] Mr Hemopo was for trial on 19 May 2014. Shortly before trial the visiting psychiatrist at Rimutaka Prison expressed concern about Mr Hemopo’s fitness to plead. Neither the defence nor the Crown put it in issue. But the psychiatrist’s report triggered the ss 9 and 14 process under the Criminal Procedure (Mentally
Impaired Persons) Act 2003.1 The trial date was vacated.

[2] On 18 June 2014 a hearing was convened under s 14 of the Act. I heard and examined two psychiatrists. I found Mr Hemopo fit to stand trial. This judgment
sets out my reasons for that finding.

1 Herein the Act.

R v HEMOPO [2014] NZHC 1423 [23 June 2014]

Statutory process

[3] The process under the Act is a three-stage one:

(a) Participation: Section 9 of the Act provides that before a Court can determine a defendant’s fitness to stand trial, the Court must satisfy itself, on the balance of probabilities, that the evidence against the defendant is sufficient to establish that he “caused the act or omission that forms the basis of the offence with which the defendant is charged”.

(b)Mental impairment: Section 14 applies if the s 9 threshold has been met. In that case the Court must receive the evidence of two health assessors as to whether the defendant is “mentally impaired”.

(c) Fitness to stand trial: Section 14 provides, further, that if the Court finds, on the balance of probabilities, that the defendant is mentally impaired, it must give the parties an opportunity to present evidence as to whether the defendant is unfit to stand trial and make a finding on that issue. In doing so it considers a number of factors. They concern the defendant’s ability to understand the charges and communicate. Does he or she understand his or her options, and the consequences thereof? Is he or she able to plead? Will he or she follow and understand the trial process? Will he or she be able to defend the charges, instruct counsel (where applicable) and communicate with the Court?

First stage: participation

[4] The scope of s 9 remains controversial. The drafting is unhappy, and the precise purpose of the provision frustratingly obscure.2 The purpose of the provision has been said to be to avoid the possibility of a person being subjected to dispostive
orders denying liberty in the event he or she is found unfit to plead, in circumstances

2 See for example Warren Brookbanks “Special Hearings Under CPMIPA” [2009] NZLJ 30; R v
Te Moni [2009] NZCA 560 at [79]–[80].

where an offence has not in fact been committed.3…

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 H

Details

AGLC: R v H [2014] NZHC 1423
Case: [2014] NZHC 1423
Decision Date: 23 June 2014

CaseChat Overview and Summary

In this case, the defendant, Mr Hemopo, faced a trial on charges of an offence. Concerns arose about his fitness to plead, leading to a hearing under the Criminal Procedure (Mentally Impaired Persons) Act 2003. The court was required to determine whether Mr Hemopo was mentally impaired and, if so, whether he was unfit to stand trial.

The court addressed the statutory process outlined in the Act, focusing on the three stages: participation, mental impairment, and fitness to stand trial. The court considered whether the defendant caused the act or omission forming the basis of the offence, and whether he had a mental impairment that could affect his ability to comprehend charges, consider options, plead, or mount a defence. The court examined psychiatric reports and testimony to assess Mr Hemopo's mental state and his capacity to participate in the trial.

After hearing evidence from two psychiatrists, the court found Mr Hemopo mentally impaired due to an intermittent delusional disorder. However, the court concluded that he was not unfit to stand trial at the present time. The court determined that Mr Hemopo could plead, appreciate the consequences of decisions, and communicate with the court and counsel, provided his intermittent impairment did not hinder his reasoning capacity. The court acknowledged that the assessment may need to be revisited during the trial if his latent impairment re-emerged.

The final orders of the court were that Mr Hemopo was fit to stand trial, subject to the caveats that the court's assessment may need to be revisited during the trial if his latent impairment re-emerged. If that occurred and affected his ability to conduct his own defence, arrangements would be made to ensure a fair trial.

Orders