R v K - [2017] NZHC 518

ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF DEFENDANT PURSUANT TO S 202 CRIMINAL PROCEDURE ACT 2011.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2014-090-1397 [2017] NZHC 518

THE QUEEN

v

K

Hearing: 21 March 2017

Appearances:

K Lummis for Crown
C P Merrick for Defendant

Judgment:

21 March 2017

JUDGMENT OF LANG J

[on disposition of proceeding under the

Criminal Procedure (Mentally Impaired Persons) Act 2003]

This judgment was delivered by me on 21 March 2017 at 4.30 pm, pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date……………

R v K [2017] NZHC 518 [21 March 2017]

[1] Mr K faces several serious charges, including attempted sexual violation by rape and sexual violation by unlawful sexual connection. He also faces a charge that he dealt with a young girl for the purpose of sexually exploiting her.

[2] On 31 July 2015, I made a finding under s 14 of the Criminal Procedure (Mentally Impaired Persons) Act 2003 (the Act) that Mr K was mentally impaired to the extent that he was unfit to stand trial.1 Since that time there have been numerous adjournments of the proceeding. All of these have been made with the objective of ensuring that the appropriate form of disposition is available.

[3] I am now finally in a position to make those orders.

The offending

[4] The charges alleged that the offending occurred between February 2009 and February 2014. It involved Mr K going to the address where the complainant and her mother lived. The complainant was aged between 9 and 14 years at the time of the offending. Sexual activity would then occur between the complainant and Mr K with the consent and encouragement of the mother. The mother was also charged but she, too, has been found to be unfit to stand trial on the ground of mental impairment.

[5] Before I found Mr K unfit to stand trial, I was required to make a determination under s 9 of the Act that Mr K committed the physical acts giving rise to the charges. In order to do so, I considered witness statements provided to me by the Crown and I viewed two evidential videotaped interviews of the complainant. In my judgment I described the alleged offending in the following terms:2

[5] As will already be obvious, the complainant’s evidence is critical. I consider the manner in which she described events during the videotaped interviews was convincing. During the first interview, she described how Mr K would come to her house because he was a friend of her mother. Her mother would then encourage her to go into the bedroom with Mr K. Mr K would then either undress her himself or get her to take her clothing off. He would then lie on top of her and endeavour to insert his penis into her vagina. She used dolls to demonstrate how that occurred. She also marked

1 R v [K] [2015] NZHC 1813.

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 K

Details

AGLC: R v K [2017] NZHC 518
Case: [2017] NZHC 518
Decision Date: 21 March 2017

CaseChat Overview and Summary

The case of R v K involved a defendant, K, who faced serious charges including attempted sexual violation by rape and sexual violation by unlawful sexual connection, as well as a charge of dealing with a young girl for the purpose of sexually exploiting her. The case was heard in the High Court of New Zealand, Auckland Registry, with the judgment delivered by Justice Lang on March 21, 2017. The central legal issues in this case were the defendant's mental fitness to stand trial and the appropriate disposition under the Criminal Procedure (Mentally Impaired Persons) Act 2003.

The court was required to determine whether the defendant, K, was mentally impaired to the extent that he was unfit to stand trial, and if so, what disposition should be made under the Act. Justice Lang concluded that K was indeed mentally impaired, a finding previously made on July 31, 2015. The court also needed to weigh the seriousness of the charges against K's current mental condition and the options available under the Act for defendants found unfit to stand trial.

After careful consideration of the evidence and the statutory provisions, Justice Lang determined that none of the available options under sections 24 and 25 of the Act were suitable for K. The court found that detention in a hospital or secure facility would be inappropriate due to the nature of K's risk, and other options were either inapplicable or inadequate. Ultimately, the court decided that the most appropriate disposition was to release K into the care of his family, subject to their ability to supervise him and the oversight of the Intellectual Disability Offender Liaison Service. The court also highlighted a legislative deficiency that prevents it from imposing conditions on the release of a defendant whose charges have been stayed, and recommended an amendment to address this issue.

In conclusion, Justice Lang ordered that K be immediately released into the care of his family and that the proceeding be stayed pending further order of the Court. Additionally, an order was made under section 202 of the Criminal Procedure Act 2011 to permanently suppress K's name and identifying particulars to protect the victim's identity.

Orders