R v Marks - [2017] NZHC 3048

IN THE HIGH COURT OF NEW ZEALAND HAMILTON REGISTRY

I TE KŌTI MATUA O AOTEAROA

KIRIKIRIROA ROHE

CRI-2016-019-005191

[2017] NZHC 3048

THE QUEEN

v

ANDREW ALLAN MARKS

Hearing: 8 December 2017

Counsel:

R L Mann for Crown G Boot for defendant

Judgment:

8 December 2017

ORAL JUDGMENT OF KATZ J

Solicitor: Almao Douch, Crown Solicitor, Hamilton Counsel: Gavin Boot Law, Hamilton

R v MARKS [2017] NZHC 3048 [8 December 2017]

Introduction

[1] Andrew Marks faces a charge of indecent assault arising out of an incident in which Mr Marks is said to have briefly grabbed a stranger’s buttock on a public street before fleeing. If convicted, this would be Mr Marks’ third strike offence. As a result, Mr Marks would be required to serve the maximum sentence in respect of the charge (seven years’ imprisonment) unless the sentencing court considered that to be manifestly unjust.

[2] Mr Marks initially pleaded guilty to the charge. His guilty plea was recently vacated, however, as there is evidence that suggests that Mr Marks may not have been fit to plead (or stand trial) at the time that he pleaded guilty.

[3] The issue of whether Mr Marks is fit to stand trial on the charge of indecent assault is now before me for determination. The Crown accepts that, on the available evidence, such a finding is open to the Court.

Procedural framework

[4] The Criminal Procedure (Mentally Impaired Persons) Act 2003 (“Act”) prescribes a sequential procedure for determining unfitness to stand trial and for disposing of persons who have been found unfit to stand trial.1

(a)First, the Court must be satisfied, on the balance of probabilities, that the evidence against the defendant is sufficient to establish that he or she caused the act or omission that forms the basis of the offence with which the defendant is charged.2 In other words, in this case, is it more likely than not that Mr Marks groped the complainant’s buttock?

1 This procedure is mandated by the Act. It was put in a more discriminate way by the Court of Appeal in R v McKay [2009] NZCA 378, [2010] 1 NZLR 441 at [50].
2 Section 9.

(b)Second, the Court must record its finding on this matter.3 In this regard:

(i)If the Court is satisfied of the defendant’s involvement in the offending, the Court must proceed to consider whether the defendant is fit to stand trial (i.e. proceed to the third step, below).4
(ii)If the Court is not satisfied of the defendant’s involvement in the offending, the Court must dismiss the charge against him or her.5

(c)Third, the Court must receive the evidence of two health assessors as to whether the defendant is mentally impaired.6 If the Court is satisfied on the evidence that the defendant is mentally impaired, it must record a finding to that effect and:7

(i)give each party an opportunity to be heard and to present evidence as to whether the defendant is unfit to stand trial;

(ii)find whether or not the…

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 Marks

Details

AGLC: R v Marks [2017] NZHC 3048
Case: [2017] NZHC 3048
Decision Date: 8 December 2017

CaseChat Overview and Summary

In R v Marks, the court was asked to determine whether the defendant, Andrew Marks, was fit to stand trial on a charge of indecent assault. The defendant had previously pleaded guilty but later sought to vacate that plea due to concerns about his fitness to stand trial. The court had to determine if Marks was mentally impaired and, if so, whether he was fit to stand trial. The court found that Marks had an intellectual disability and that his cognitive deficits impaired his ability to comprehend the charges, consider options and consequences, plead, or mount a defence. The court was satisfied that Marks was unfit to stand trial because he did not adequately understand the likely consequences of entering a guilty plea, namely that he would be imprisoned for seven years without the possibility of parole unless the sentencing court found that to be manifestly unjust. Marks lacked the ability to comprehend the nature and severity of the sentence likely to be imposed and did not have even a cursory understanding of what "manifestly unjust" might mean. The court also had reservations about Marks' ability to communicate adequately with his counsel for the purposes of conducting a defence. As a result, the court directed that Marks be remanded to a hospital or secure facility to enable inquiries to be made to determine the most suitable method of dealing with him under the Criminal Procedure (Mentally Impaired Persons) Act 2003. The court also directed that a health assessor who is a psychiatrist prepare a report as to whether one of the two orders set out in s 24(2) of the Act is necessary, and assess Marks under Part 3 of the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003.

Orders