R v R - [2015] NZHC 783

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.

NOTE: PREVIOUS ORDER PROHIBITING PUBLICATION OF NAME, ADDRESS, OCCUPATION OR IDENTIFYING PARTICULARS OF THE DEFENDANT PURSUANT TO S 200 CRIMINAL PROCEDURE ACT 2011
REMAINS IN PLACE.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2014-044-2080 [2015] NZHC 783

THE QUEEN

v

R

Hearing: 13, 14, 16 and 17 April 2015

Appearances:

Mr Raftery & Mr Walker for Crown
Mr Wilkinson-Smith & Mr Brosnahan for defendant

Judgment:

21 April 2015

JUDGMENT OF WINKELMANN J

[Section 9 Criminal Procedure (Mentally Impaired Persons) Act 2003

This judgment was delivered by me on 21 April 2015 at 4.00 pm pursuant to
Rule 11.5 of the High Court Rules.
Registrar/ Deputy Registrar

R v R s 9 application [2015] NZHC 783 [21 April 2015]

[1] The defendant is charged with murder and sexual violation. The Crown’s case is that on the evening of 24 May 2014, he abducted Mrs Blesilda Gotingco from Salisbury Road, Birkdale, and took her against her will to his home where he raped her and subjected her to physical violence which resulted in her death. The next day he took Mrs Gotingco’s body to a nearby cemetery, where the body was subsequently located by the Police. The trial of these charges is scheduled for
28 April 2015.

[2] The issue of the defendant’s fitness to stand trial was raised by his former counsel, Mr Niven at a pre-trial hearing on 4 February 2015. At that hearing I issued a minute in which I said that I considered the provisions of the Criminal Procedure (Mentally Impaired Persons) Act 2003 (the Act) had been triggered.1 The procedure having been triggered, the first issue to be determined is that arising under s 9 of the Act.

Statutory framework

[3] Section 9 provides that the Court cannot make a finding that the defendant is unfit to stand trial unless it is satisfied on the balance of probabilities that the defendant caused the act or omission that forms the basis of the offence with which the defendant is charged. Section 13 provides that if the Court is not satisfied of the s 9 matter, it must dismiss the charge against the defendant under s 147 of the Criminal Procedure Act 2011.

[4] Section 10 of the Act provides that where the issue of fitness to stand trial is raised before the trial that the Court may consider:

(a) any formal statements that have been filed under section 85 of the
Criminal Procedure Act 2011:

(b) any oral evidence that has been taken in accordance with an order made under section 92 of the Criminal Procedure Act 2011:

1 Minute incorrectly dated 4 February 2014. I also decided, after discussion with counsel, to order the preparation of two reports under s 38 of the Act in…

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 R

Details

AGLC: R v R [2015] NZHC 783
Case: [2015] NZHC 783
Decision Date: 21 April 2015

CaseChat Overview and Summary

In the case of R v R, the defendant is charged with the murder and sexual violation of Mrs Blesilda Gotingco. The Crown alleges that on the evening of 24 May 2014, the defendant abducted Mrs Gotingco from Salisbury Road, Birkdale, took her to his home where he raped and physically assaulted her, causing her death. The defendant then transported the body to a nearby cemetery where it was found by the Police the next day. The trial is scheduled for 28 April 2015. The issue of the defendant's fitness to stand trial was raised by his former counsel, Mr Niven, at a pre-trial hearing on 4 February 2015. The court was required to decide whether the defendant caused the act or omission that forms the basis of the offence with which the defendant is charged. Section 9 of the Criminal Procedure (Mentally Impaired Persons) Act 2003 provides that the court cannot make a finding that the defendant is unfit to stand trial unless it is satisfied on the balance of probabilities that the defendant caused the act or omission that forms the basis of the offence with which the defendant is charged. The court heard evidence from the pathologist who performed the autopsy on the victim, and from a number of forensic scientists. The court was satisfied that the Crown case that it was the defendant who did acts which caused Mrs Gotingco’s death easily met the required evidential threshold in respect of this charge. The court was also satisfied that there was sufficient evidence to prove on the balance of probabilities that the defendant raped the victim, by which the court meant that the sexual conduct involved penetration of the victim’s genitalia with the defendant’s penis. The court concluded that the defendant caused the acts forming the basis of the offences he is charged with. The court issued an order prohibiting the 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.

Orders