R v Mulholland

[2015] NZHC 418

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 DUNEDIN REGISTRY

CRI-2014-045-000023 [2015] NZHC 418

THE QUEEN

v

LEONARD JAMES MULHOLLAND

Hearing:	10 March 2015 (via telephone conference)
Appearances:	R B Bates for Crown S A Saunderson-Warner for Defendant
Judgment:	10 March 2015

JUDGMENT OF GENDALL J

[1]      An  application  with  respect  to  the  defendant  Mr  Mulholland  under  the Criminal Procedure (Mentally Impaired Persons) Act 2003 (the Act) is scheduled for hearing in the High Court at Dunedin on 30 March 2015.

[2]      On 9 March 2015 Ms Saunderson-Warner, counsel for Mr Mulholland, filed an application in this Court seeking a direction that the defendant Mr Mulholland’s appearance be excused at the hearing on 30 March 2015.   The stated grounds advanced for this application were that the defendant has limited cognitive ability

and is unable to participate meaningfully in the Court process.

R v MULHOLLAND [2015] NZHC 418 [10 March 2015]

[3]      Attached  to  the  application  was  a  letter  dated  30  January  2015  from Dr A C Smillie,  Mr  Mulholland’s  general  practitioner.    This  letter  indicated  that Mr Mulholland is a permanent resident at Leslie Groves Hospital, which is part of the Leslie Groves  Rest Home and Day Care Centre in Dunedin.   He is in the Specialised Hospital Unit there, a unit for people with significant cognitive impairment and behavioural issues.

[4]      In his letter Dr Smillie stated:

I do not consider it appropriate that Mr Mulholland attend Court.   He has significant memory loss and has very limited cognitive ability.

[5]      This application is opposed by the Crown.   Mr Bates for the Crown in his opposition raised a number of points:

(a)      Although   attendance   at   this   hearing   might   be   unpleasant   for Mr Mulholland, nevertheless, it could be helpful for the Court to see him and his condition as part of the decision-making process.

(b)Mr Bates also indicated that three of the complainants involved in this matter wish to attend the hearing on 30 March 2015.  At least one of those  complainants  is  travelling  from  Australia  for  this  purpose, Mr Bates says, to try to “put an end” to what is described as a very long process here.  Mr Bates contends that it is important and cathartic for these complainants to see the defendant personally and his condition for this whole process to unfold.

(c)       Mr Bates went on to say that, if Mr Mulholland is brought to Court on

30 March 2015, even if at the time this proved to be too difficult under all the circumstances, then it would be open to the Court to excuse him after a brief appearance.

[6]      In support of the application Ms Saunderson-Warner contended that it is based on the medical evidence which is before the Court, including the two psychiatrists’  reports  and  the  letter  from  Dr  Smillie.    Ms  Saunderson-Warner contends  that  not  only  does  Mr  Mulholland  have  physical  issues  but,  with  his

ongoing and serious dementia, he is completely disoriented as to place and time and has very poor cognitive functioning ability.  In addition she says he suffers from a paranoid personality and would be quite unable to play any active part in the proceeding or to provide her with any further instructions.

[7]      As a result of all this, Ms Saunderson-Warner contends that Mr Mulholland’s

appearance on 30 March 2015 would not assist the process and should be excused. [8]      I take a different view, however, to that expressed by Ms Saunderson-Warner.

[9]      Although  I need to place on one side here issues over the need  for the complainants to fully participate and see the condition of the defendant here, which in my view is not the direct purpose of the s 14 procedure, I am of the view that it is important in this process that Mr Mulholland is in attendance.  The medical evidence before me is not such that I must conclude there is some major impediment or difficulty in Mr Mulholland being present in Court for the hearing.

[10]     Further it may be that, although Ms Saunderson-Warner indicates she does not expect Mr Mulholland to be in any position to provide advice or instructions to her at this hearing, she may be mistaken as to that aspect and he might wish to participate.

[11]     And, after all, if I am to find that Mr Mulholland is mentally impaired in terms of s 14 of the Act, I am then required to determine under s 14(2) whether he is fit to stand trial. And, as to that second issue, I must in terms of s 14(3) of the Act be satisfied to the balance of probabilities, and not simply on the evidence of the psychiatric assessors, but also on any other evidence that might be called for the Crown or on behalf of the accused, whether he is indeed fit to stand trial.  In terms of that evidence, if it was to arise here, both the Crown and the accused independently have the right to call evidence and those witnesses themselves have a right to be heard.

[12]     These    are    important    matters    indeed    which    fundamentally    affect

Mr Mulholland and issues over his fitness to stand trial.

[13]     For all these reasons I am satisfied that his attendance at the hearing on

30 March 2015 is important and should not be dispensed with here.

[14]     For all these reasons the 9 March 2015 application which is before the Court to dispense with Mr Mulholland’s attendance at the hearing was dismissed.

...................................................

Gendall J

Solicitors:

RPB Law, Dunedin

Aspinall Joel, Dunedin