R v McIsaac

[2016] NZHC 743

ORDER PROHIBITING PUBLICATION OF THE JUDGMENT AND ANY PART OF THE PROCEEDINGS (INCLUDING THE RESULT) IN NEWS MEDIA OR ON THE INTERNET OR OTHER PUBLICLY AVAILABLE DATABASE UNTIL FINAL DISPOSITION OF TRIAL. PUBLICATION IN LAW REPORT OR LAW DIGEST PERMITTED.

IN THE HIGH COURT OF NEW ZEALAND PALMERSTON NORTH REGISTRY

CRI-2015-031-001360

[2016] NZHC 743

THE QUEEN

v

ERIC BADEN MCISAAC

On papers
Judgment:	20 April 2016

JUDGMENT OF DOBSON J

[1]                 The defendant faces charges of murder, possession of an offensive weapon and burglary. An issue has arisen as to his fitness to stand trial and that requires consideration of the sequence of decisions required under subpart 2 of Part 1 of the Criminal Procedure (Mentally Impaired Persons) Act 2003 (CPMIP).

[2]The two stages are provided for in ss 9 and 14 of CPMIP:

9        Court must be satisfied of defendant’s involvement in offence

A court may not make a finding as to whether a defendant is unfit to stand trial unless the court is satisfied, on the balance of probabilities, that the evidence against the defendant is sufficient to establish that the defendant caused the act or omission that forms the basis of the offence with which the defendant is charged.

R v MCISAAC [2016] NZHC 743 [20 April 2016]

14       Determining if defendant unfit to stand trial

(1)If the court records a finding of the kind specified in section 13(4), 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.

[3]                 There is some uncertainty as to the extent to which the Court needs to be satisfied, when conducting a s 9 inquiry, of any more than the commission of the physical acts constituting the charges in question. The appropriate scope of the inquiry was considered by the Court of Appeal in R v Te Moni.1 New Zealand appears to be out of step with the majority of comparable jurisdictions in the sequence in which the ss 9 and 14 inquiries occur. For the most part, such processes require a determination of whether a person is fit to stand trial before embarking on the inquiry as to whether the defendant is responsible for the acts constituting the offences charged.2

[4]                 The approach adopted by the Court of Appeal in the Australian Capital Territory extended beyond an inquiry into responsibility for the physical acts, to require the prosecution to negative the prospect of mistake, accident or lack of any specific intent or knowledge where those were reasonably raised. In commenting on this approach, our Court of Appeal observed:

[79] That approach requires difficult distinctions to be made. Such distinctions would be unnecessary if the s 9 inquiry were limited to proof that the defendant committed the physical acts that form the basis of the offence,

1      R v Te Moni [2009] NZCA 560 at [67]–[80].

2      See the comparisons in Te Moni at [69]: in South Australia the sequence is left to the discretion of the trial judge, whereas in the United Kingdom and all other Australian states and territory, the s 14 type inquiry precedes the s 9 type inquiry.

as opposed to the actus reus. There is some indication in the Hansard debate relating to the Bill which became the CP Act that that may have been what was envisaged by Parliament as the test applying under s 9. However, that approach does not appear to set a sufficiently high threshold to meet the objective of s 9, which is to ensure that a court has made a finding of criminal culpability before the sanctions which can apply to a person who is unfit to stand trial can be imposed on that person.

[5]                 In a somewhat analogous case to the present involving charges of murder and wounding with intent to cause grievous bodily harm, Venning J approached the task in the following way:3

[24] In my judgment the s 9 inquiry should focus  on the  defendant’s  actions as opposed to his or her state of mind. What is required to be established at this stage of the process is that the defendant caused the physical acts or omissions that form the basis of the offences charged. The only mental element associated with the physical acts in this case to support the charges of murder and wounding with intent, is that the assaults in each case must be intentional. …

[6]                 The consequences of orders under s 14 can include compulsory detention for an indefinite period as a mental health patient. The justification for such orders would be that the defendant would otherwise have stood trial on serious criminal charges, so use of the power to compulsorily detain a person should only be triggered where the Court is satisfied, at least on the balance of probabilities, that the defendant carried out the actions that constitute the physical components of the charges that he or she faced.

[7]                 In this case, the defence has consented to the Court dealing with the s 9 issue on the papers and the defendant has not responded to the submissions filed on behalf of the Crown.

[8]                 Given the lack of challenge to the witness statements filed, at least for the present purposes of a s 9 assessment, I can deal with the facts relatively briefly.

[9]                 The deceased was the 10 year old step-brother of the defendant, who has recently turned 25. The deceased was killed at Waitarere Beach on 5 or 6 October 2015 as a result of head injuries caused by a number of blows struck with a blunt instrument. The defendant initially denied knowing of the circumstances of his step- brother’s disappearance to their mother, and declined to comment to Police during

3      R v MAJW [2016] NZHC 72.

their initial inquiries and at and after the time of his arrest. However, on 17 December 2015 the defendant confessed to a detective that he had murdered his step-brother. That occurred when the defendant was visited in prison for the purpose of the detective taking a buccal sample. The defendant still declined to be formally interviewed in a recorded form and commented that he might eventually discuss his reasons for killing his step-brother but he was not prepared to do so at the time. The defendant did volunteer that nobody else was involved and apologised for what the Police had to deal with in regard to the murder, which he described as brutal.

[10]              I am satisfied that the evidence in the witness statements that have been filed for the purpose of determining the s 9 inquiry more than justify a finding that, on the balance of probabilities, the defendant’s confession was a true one.

[11]              Their mother’s witness statement confirms she dropped the defendant and his step-brother at the Waitarere Domain on 5 October 2015. Both of them were observed making purchases at a 4 Square store and a liquor store at Waitarere Beach between

6.15 pm and 6.30 pm that evening.

[12]              The defendant’s mother received a telephone call from him at 3.40 am the following morning, 6 October 2015. The defendant had earlier told his mother that he would be seeing a woman who lived at the beach. In the telephone call, the defendant explained that he had argued with that woman and wanted his mother to come out and talk to him. When the defendant’s mother arrived, the defendant explained that his step-brother was staying with a friend of the woman he claimed to have been with, which friend had a daughter of a similar age. The defendant was at that time carrying the deceased’s backpack.

[13]              After the defendant and his mother had walked some distance along Waitarere Beach, the mother returned to her car and observed the defendant entering the Waitarere Forest. She waited for him to come out, but he did not, so the mother went to the home of the woman described by the defendant as the friend with whom he had argued. That woman told the defendant’s mother that she was not friends with the defendant, that she had never met the deceased and that the defendant was not staying

with her. She did not know anyone who had a daughter with the name the defendant had specified as being of a similar age to the deceased.

[14]              A search and rescue operation was commenced. The defendant was located coming out of the Waitarere Forest shortly before midday on 6 October 2015. He gave an explanation as to the circumstances in which he had separated from his step-brother and said that he hoped he would be found.

[15]              When the defendant was located, he was in possession of a knife and the Police officer who encountered him arrested him for possession of an offensive weapon. At that point the defendant told Police that he did not have any information which could assist the Police in finding his step-brother.

[16]              As part of an aerial search being conducted by helicopter, the body of the deceased was located on the morning of 8 October 2015. The body was discovered in sand dunes adjoining the beach. It was covered by a white blanket and a light blue blanket that were spread out on the tussock grass. On further inspection, Police discovered that the deceased’s body had been covered by a sleeping bag. The opinion of ESR scientists is to the effect that the deceased had been killed in situ. A Stanley log-splitting axe was located near the bedding.

[17]              Prior to all these events, on 4 October 2015 the owners of a beach house at Waitarere Beach discovered that their property there had been burgled. The state of their beach house suggested somebody had been spending time there, and they discovered bedding which did not belong to them. The owners packed the unfamiliar items into a large carry bag, which was placed on the front porch of the property.

[18]              On 8 October 2015, the owners of that property returned and noted that the bag containing the unfamiliar items was no longer on their porch. They also discovered that a recently purchased log-splitting axe was missing.

[19]              Later in October 2015, fingerprinting at that address found matches with the defendant’s fingerprints at three places.

[20]              The Crown case is that the bedding items were those found at the scene of the murder, and the log-splitting axe taken from that property matches the axe found at the scene.

[21]              Subsequent DNA analysis on the mouth of a water bottle found near where the deceased was found showed the DNA of both the defendant and the deceased. Also, a can of Codys alcohol found to one side of the bedding revealed the DNA of the defendant.

[22]              The defendant had been with the deceased during the period in which the murder must have occurred. He remained in the area where the body was found throughout the relevant period, his DNA was present on items found at the murder scene and he is closely linked with the items left out by the owners of the burgled property in the vicinity, which were then used to cover the body of the deceased. The defendant provided untruthful explanations to his mother as to a friendship with another woman at the beach, and his call to her at 3.40 am suggests unusual activity. He had the deceased’s backpack with him when he met his mother soon after making that call. He was certainly not sleeping peacefully on the night in question.

[23]The s 9 threshold is clearly met on the murder charge.

[24]              As to the burglary charge, the defendant’s fingerprints place him at the scene. The reconstruction suggesting he subsequently returned to retrieve the items that were left out by the owners of the beach house, in addition to taking the log-splitting axe, satisfy me on the balance of probabilities that he committed the burglary.

[25]              As to the charge of possession of an offensive weapon, being found in possession of a small knife may not of itself be sufficient to characterise it as an offensive weapon. The context and state of mind of the person found in possession may be relevant in making out whether the item did constitute an offensive weapon.4 The witness statements do not link the knife found in the defendant’s possession to any of his activities prior to the time of his arrest. Nor is there any suggestion that the arresting officer was fearful that the defendant might use the knife on him at the time.

4      Compare with R v Te Moni, above n 2, at [77].

[26]The only reference to the knife in the arresting officer’s statement is:

At this point I arrested McIsaac for possession of a knife, as he had a knife on him.

[27]              The wider context is that the defendant was a prime suspect in the disappearance of his step-brother who had last been seen in his company, and their mother had observed the defendant in possession of his step-brother’s backpack when the defendant called her to the beach at 3.40 am.

[28]              There is no suggestion that the defendant had some legitimate purpose for being in possession of the knife. In those circumstances I am satisfied, on the balance of probabilities, that the purposes for which the defendant had the knife included the prospect of its use as an offensive weapon. Further, as discussed above, the focus of the s 9 inquiry is on the act that forms the basis of the offence, and there is no doubt the defendant was in possession of a knife. Therefore the s 9 test is also satisfied on that third charge.

Result

[29]              The s 9 test is satisfied on all three of the present charges. I accordingly direct that the second stage, the inquiry under s 14, is to proceed as scheduled on 29 April 2016.

Dobson J

Solicitors:

Crown Solicitor, Palmerston North Ord Legal, Wellington