R v Marks
[2017] NZHC 3048
•8 December 2017
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 defendant is unfit to stand trial, on the balance of probabilities; and
(iii)record that finding.
If, however, the Court records a finding that the defendant is fit to stand trial, the Court must continue the proceedings.8
(d)Fourth—if the defendant is found unfit to stand trial—the Court must order that inquiries be made to determine the most suitable method of dealing with him or her.9 To this end, the Court must either:10
3 Section 13(1).
4 Section 13(4).
5 Section 13(2).
6 Section 14(1).
7 Section 14(2).
8 Section 14(4).
(i)make it a condition of a grant of bail that the defendant go to a place approved by the Court for the purpose of the inquiries; or
(ii)remand the defendant to a hospital or a secure facility.
The inquiries must be completed as quickly as practicable and, in any event, within 30 days after the date of the order under which the inquiries are made.11 And a person who has an intellectual disability must, during the period in which the inquiries are made, be assessed under Part 3 of the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003.12
(e)Fifth—when the Court has sufficient information on the condition of a defendant found unfit to stand trial—the Court must make appropriate orders as to disposition.13
On the balance of probabilities, did Mr Marks grab the complainant’s buttock?
[5] The first issue is whether the evidence against Mr Marks is sufficient to establish, on the balance of probabilities, that Mr Marks committed the act that forms the basis of the indecent assault charge.14
[6] Constable Jackie Pretswell has sworn an affidavit addressing this issue. She annexes statements made to the police by the complainant and an eyewitness to the alleged offending, as well as her own contemporaneous statement.
[7] The complainant’s evidence is that on 22 August 2016, while walking to work in Hamilton, she felt someone grab her bottom with their hand. When she turned around she saw a male running off into a carpark. She provided a description of the male, but was unable to see his face as he had his hoody up over his head.
9 Section 23(1).
10 Section 23(2).
11 Section 23(4).
12 Section 23(5).
13 Section 24(1).
14 Section 9
[8] An eyewitness, Ms Gilbert, stated that on 22 August 2016, while walking to work, she saw a man crouching behind a woman who was walking south, away from her. Ms Gilbert heard the woman scream “fuck off” and saw her turn around to face the man. Ms Gilbert then describes seeing the man run away. She did not see his face but was able to give a description of his clothes.
[9] Constable Pretswell’s statement records that on 22 August 2016, while on duty, she and Constable Goodin were alerted to a “sexual attac[k] job” on Harwood Street, where a male had grabbed a woman’s bottom as she was walking. She and Constable Goodin spoke to the complainant, who described to them what had happened. The officers then located a male matching the description of the offender nearby. That man was Mr Marks. When they approached him he attempted to run away. He was then arrested for indecent assault.
[10] Constable Pretswell subsequently conducted a DVD interview with Mr Marks, during which he stated that he did something stupid, that he did not want to but something was telling him to do it, and that he hears ghosts. He went on to clarify that he “grabbed somebody’s arse”, “her bottom”. After he grabbed her he went on his “merry way”. He queried why men cannot do it but women can, before observing that people have taught him that it is not right.
[11] Constable Pretswell has also reviewed security footage of the incident in which she says that Mr Marks can be seen. It shows him running up to the complainant, then quickly turning around and running away from her. A small polystyrene wall partially obscures the view, so the alleged assault is not visible.
[12] Based on the totality of this evidence I am satisfied, on the balance of probabilities, that Mr Marks was the person who grabbed the complainant’s buttock. He accordingly committed the act that forms the basis of the indecent assault charge.
Is Mr Marks mentally impaired and unfit to stand trial?
[13] Given my finding that, on the balance of probabilities, Mr Marks was involved in the offence, it is now necessary to consider whether Mr Marks is mentally impaired and, if he is, whether he is unfit to stand trial.
Is Mr Marks mentally impaired?
[14] The first step is to review the evidence of two health assessors as to whether Mr Marks is mentally impaired. The term “mentally impaired” is not defined in the Act. Kós J espoused a broad definition of the term in R v H:15
[9] “Mentally impaired” is undefined in the Act. On reflection, I think it must encompass more than just “mental disorder” (as defined in the Mental Health (Compulsory Assessment and Treatment) Act 1992) and “intellectual disability” (as defined in the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003). It is possible it includes, therefore, other mental impairments, such as those caused by degenerative neurological condition, substance abuse or acquired brain injury, involving short term memory and frontal lobe deficits, low intelligence or impaired cognition, any of which lead to difficulty in organising or processing information and responding. The focus of the undefined term should be on whether the defendant has a condition that impairs mental function to the extent it may seriously affect the defendant’s ability to comprehend charges, consider options and consequences, plead, or mount a defence.
(Footnotes omitted)
[15] There are a number of psychiatric reports on the court file regarding Mr Marks. There are reports by:
(a)Dr Shailesh Kumar dated 12 September 2016;
(b)Dr Kadhem Majeed dated 19 December 2016;
(c)Dr Peter Dean dated 22 February 2017;
(d)Dr David Brunskill dated 7 June 2017; and
(e)Dr Shailesh Kumar and Dr Peter Dean (Consensus Opinion) dated 8 November 2017.
[16] I rely in particular on the reports of Dr Kumar and Dr Dean, but note that all of the clinicians who have assessed Mr Marks are of the view that he suffers from a mental impairment, being an intellectual disability. Mr Marks scores poorly on measures of intellectual functioning and presents with serious cognitive deficits. His
15 R v H [2014] NZHC 1423.
IQ score is described as being in the extremely low range and he is said to have similar impairments in adaptive functioning. In addition, Mr Marks suffers from foetal alcohol syndrome. Foetal alcohol syndrome causes brain damage and growth retardation.
[17] In 2013 Mr Marks was assessed as meeting the legal threshold and statutory definition of intellectual disability and was subsequently made a compulsory care recipient for two years, with his care being overseen by the National Intellectual Disability Care Agency. Mr Marks was receiving supervised residential care as a voluntary client at a supported facility in Hamilton at the time when the indecent assault occurred.
[18]Based on the health assessors’ reports before me, it is clear that Mr Marks is
mentally impaired.
Is Mr Marks unfit to stand trial?
[19]The next issue I must determine is whether Mr Marks is unfit to stand trial.
[20]The term “unfit to stand trial” is defined in the Act 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.
[21] The Court of Appeal has noted that when determining fitness to stand trial, there is a duty on the Judge to “rigorously examine” the issue. In SR v R the Court acknowledged the observations made by the English Court of Appeal in R v Walls that it is the “duty of the court, save in clear cases, to rigorously examine the expert
and other evidence adduced against the relevant criteria relating to the issue of
fitness to stand trial”.16
[22] Dr Kumar, in his initial report of 12 September 2016, concluded that Mr Marks was fit to stand trial. Mr Marks then entered a guilty plea. He subsequently sought to vacate that guilty plea, however, in light of further psychiatric reports that indicated he may not have been fit to plead. One of those reports suggested that although he may have been fit to plead in a general sense, a higher degree of cognitive ability may be required where a defendant is required to plead to a third strike offence. That is because of the extremely serious potential consequences of such a plea. (Here, Mr Marks would be required to serve a term of seven years’ imprisonment without parole, unless that would be manifestly unjust).
[23] This Court was accordingly asked to determine, as a preliminary issue, whether the added complexity of the three strikes legislation is a relevant consideration for the purposes of the assessment of fitness to stand trial. Whata J determined that issue as follows:17
[31] As stated by the Court of Appeal in JA (CA402/2014) v R, the assessment of fitness to stand trial is not directed to whether the defendant understands the complex wordings of the law. The interpretation and application of criminal law is for legal counsel. This applies to sentencing procedure as much as it applies to trial procedure. Rather, when fitness to plead is at issue, the focus is much simpler – namely whether the defendant understands the nature and significance of the likely sentence or penalty. This, as Asher J put it in Komene, requires a defendant to be able to understand the sentencing options that will arise following a plea of guilty and what they mean in practical terms.
[32] Inevitably, the three strikes legislation adds complexity in terms of the advice that must be given by counsel to a defendant facing sentence on a third strike offence. But it is the everyday task of criminal lawyers to convey in simple terms complex law to persons who are not legally trained. The evaluative task therefore, for the purpose of fitness to plead, is whether the advice of defence counsel, not the detailed workings of the three strikes legislation, is capable of being understood by the defendant. To that extent only is the added complexity of a third strike offence a relevant consideration.
16 SR v R [2011] NZCA 409, [2011] 3 NZLR 638 at [164]; referring to R v Walls [2011] EWCA Crim 443, [2011] Cr App R 6 at [38]. See also Togia v Police [2012] NZCA 544, [2013] 2 NZLR 478.
17 Marks v R [2017] NZHC 1991.
Outcome
[33] For the foregoing reasons, I am satisfied the answer to the question before me is yes: the added complexity of a third strike offence is a relevant consideration when assessing whether a defendant is fit to stand trial. But the issue is not whether the defendant understands the detailed workings of the three strikes legislation. Rather the issue is whether the defendant is capable of understanding the nature and severity of the sentence or penalty likely to be imposed.
(Footnotes omitted)
[24] Following delivery of Whata J’s decision, Mr Mark’s guilty plea to the charge of indecent assault was vacated, by consent, and a ruling sought as to Mr Marks’ fitness to plead. That is the matter before me today.
[25] In order to determine that issue it is necessary to determine whether Mr Marks is unable, due to his mental impairment, to conduct a defence or instruct his counsel to do so. More particularly, as a result of his mental impairment, whether he is unable:
(a)to plead; or
(b)to adequately understand the nature or purpose or possible consequences of the proceedings; or
(c)to communicate adequately with counsel for the purposes of conducting a defence.
[26] I will first summarise relevant aspects of the psychiatric reports that were prepared after Mr Marks had initially pleaded guilty but before Whata J’s decision, before turning to consider the Consensus Opinion produced by Dr Kumar and Dr Dean following Whata J’s decision. I find all the psychiatric reports helpful in that, given that Mr Marks suffers from a mental impairment rather than a mental disorder, his condition is generally stable over time. There is therefore less risk that the older reports might become out of date than might otherwise be the case.
[27] First, Dr Majeed’s report of 19 December 2016 notes that Mr Marks reported that he had no memory of committing the alleged offence, and that his knowledge was based on what he had been told subsequently. When asked why he had initially decided to plead guilty he said that he always says yes because he “cannot cope with the pressure of court and being questioned”. He had limited insight into what words such as “conviction” and “guilty” mean, nor was he sure what “not guilty” meant.
[28] Dr Majeed further records that Mr Marks did not know the name of his legal counsel and said that he did not remember speaking with a lawyer in relation to the subject of the “three strikes legislation”. Mr Marks did not seem to sufficiently comprehend the consequences of the guilty plea that he entered, particularly in relation to the three strikes legislation and the likelihood that he could receive the maximum term of imprisonment, without parole, if he pleaded guilty.
[29] Dr Majeed was satisfied that Mr Marks did not adequately comprehend the consequences of the guilty plea that he entered. As a result of his limited cognitive functioning, due to his intellectual disability, Dr Majeed thought it highly likely that a court would conclude that Mr Marks was unfit to stand trial if given the opportunity to further consider the issue.
[30] Turning now to Dr Dean’s report of 22 February 2017, he concluded that, despite Mr Marks’ mental impairment, in “usual circumstances” he would have found him fit to plead. However, given the added complexity of a third strike offence (which he noted may well require additional cognitive capacity) he concluded that Mr Marks was likely unfit to stand trial, due to his cognitive deficits arising out of his intellectual disability.
[31] Dr Brunskill, in his report of 7 June 2017, noted that Mr Marks did not know the date of his court appearance, his lawyer’s name, or which court he was due in. When Dr Brunskill went through the charges with him he required an explanation of the terminology including the meaning of the word “indecent”. He struggled to accept that the word referred to behaviour of a sexual nature. He denied any memory of being arrested, nor could he say where he was living at the time of the incident.
[32] Mr Marks also had a poor appreciation of the seriousness of the charges and could not offer a cogent comment. When Dr Brunskill summarised for Mr Marks, at the end of the session, what they had talked about, Mr Marks did not appear to have any recognition that they had in fact discussed the charges he faced, how the court works and so on.
[33]Dr Brunskill concluded as follows:
Even if the professed lack of recall for aspects of his offence is not completely genuine, or for example, influenced by intoxication, his cognitive capacities in general, and his ability to stand up to the rigours of trial remain of significant concern.
…
… his cognitive capacity to appreciate, process and retain the consequences of a guilty plea (including with respect to the “three strikes” legislation) is impaired, irrespective of his unsophisticated maintenance of lack of recall, and it is for this reason that I consider him to be unfit to stand trial.
He does not appear to possess the potential to effectively challenge jurors should it be necessary, nor is it clear that he could effectively follow legal proceedings, or meaningfully communicate with a legal representative. He struggles to produce a coherent narrative, and he maintains a lack of recall beyond potential purpose.
With respect to the application of 3rd strike legislation, in my view this would raise the cognitive complexity of the task before Mr Marks to a level which is beyond his grasp, including a need to be cognisant of complicated terms such as “manifestly unjust” for example. Furthermore, there is no evidence to suggest retention of subsequently discussed important legal information (such as the effects of the 3rd strike situation), or the evolution of the cognitive flexibility necessary in the light of this either.
[34] Dr Brunskill accordingly expressed the opinion that Mr Marks was unfit to stand trial.
[35]Finally, Dr Kumar and Dr Dean prepared a Consensus Opinion, following the
delivery of Whata J’s judgment. Key points include that:
(a)Mr Marks has a mild intellectual disability.
(b)The doctors did not consider Mr Marks fit to stand trial should he
enter a “not guilty” plea.
(c)Dr Dean found Mr Marks to be perplexed over the issue of the third strike. He did not appear to have any comprehension of the meaning of the third strike legislation in even a superficial sense.
(d)Mr Marks is easily led and will often agree to suggestions, which is common in those with intellectual disabilities.
(e)Dr Dean confirmed that Mr Marks appeared unable to understand that his sentence would be more severe as a result of this being a third strike offence.
[36] In summary, Dr Kumar and Dr Dean agreed that Mr Marks did not have sufficient capacity to understand the nature and severity of the sentence likely to be imposed.
[37] Taking all of this material into account, I am satisfied on the balance of probabilities that Mr Marks is unfit to stand trial. In particular, as a result of his mental impairment, it is my view that he does not adequately understand the likely consequences of entering a guilty plea, namely that he will be imprisoned for seven years without the possibility of parole unless the sentencing court finds that to be “manifestly unjust”. Mr Marks simply lacks the ability to comprehend the nature and severity of the sentence likely to be imposed. He is motivated to enter a guilty plea simply to avoid the stress of court proceedings, without appreciating the likely consequences of that course.
[38] Mr Marks does not appear to have even a cursory understanding of what “manifestly unjust” might mean. He is therefore unable to make an informed assessment as to possible sentencing outcomes, or to properly comprehend any advice his counsel may give him on the topic.
[39] I also have serious reservations about Mr Marks’ ability to communicate adequately with his counsel for the purposes of conducting a defence, in the event that that became necessary. I note, in this context, that it is not beyond the realms of possibility that Mr Marks could have a defence to the charge. In particular, I note that when he was asked if he understood his rights, before making a statement to the police, he answered “no”. Given his intellectual disability, it seems quite possible he did not understand his rights. This potentially raises issues regarding the admissibility of the admissions he made in his police statement. Without those admissions, the case against Mr Marks would be significantly weakened, as neither the complainant nor eyewitness were able to identify him.
[40] Given my finding that Mr Marks is unfit to stand trial, inquiries now need to be made pursuant to s 23 of the Act, in order to determine the most suitable method of dealing with Mr Marks.
Result
[41] Pursuant to s 9 of the Act, I am satisfied, on the balance of probabilities, that Mr Marks was the person who grabbed the complainant’s buttock, and accordingly committed the act that forms the basis of the indecent assault charge.
[42] Pursuant to s 14 of the Act, I am satisfied, on the balance of probabilities, that Mr Marks is mentally impaired and is unfit to stand trial.
[43] Pursuant to s 23(2)(b) of the Act, I direct that Mr 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 ss 24 or 25 of the Act.
[44]Finally, I direct that a health assessor who is a psychiatrist:
(a)prepare a report as to whether one of the two orders set out in s 24(2) of the Act is necessary (in particular, whether it is necessary that Mr Marks be detained in a secure facility as a special care recipient under the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003); and
(b)assess Mr Marks under Part 3 of the Intellectual Disability (Compulsory Care and Rehabilitation) Act 2003, with a view to an order being made under s 25(1)(b) of the Act, if appropriate.
Katz J