ORDER PROHIBITING PUBLICATION OF NAME(S), ADDRESS(ES), OCCUPATION(S) OR IDENTIFYING PARTICULARS OF WITNESS- PURSUANT TO S 202 CRIMINAL PROCEDURE ACT 2011. SEE
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2020-090-002204
[2022] NZHC 642
THE QUEEN v
RICKY JAMES RAFFERTY
Hearing: 21-25 March 2022 Appearances:
H Steele and E Rangamuwa for the Crown P Davey and A Watt for Mr Rafferty
Judgment:
1 April 2022
JUDGMENT OF WYLIE J
This judgment was delivered by Justice Wylie On 1 April 22 at 3.00 pm
Registrar/Deputy Registrar Date:…………………………
Solicitors/counsel:
Meredith Connell, Auckland P Davey, Auckland
R v RAFFERTY [2022] NZHC 642 [1 April 2022]
Introduction
[1] The deceased, Angela Smith, was killed some time during the evening of 13 May 2020. She had sustained a severe beating and she had been both stabbed and cut with a knife or knives. She died from multiple blunt and sharp force injuries.
[2] The defendant, Ricky Rafferty, and William Heremaia were jointly charged with Ms Smith’s murder.
[3] Mr Rafferty has been found unfit to stand trial pursuant to s 8A of the Criminal Procedure (Mentally Impaired Persons) Act 2003 (the CPMIPA).1 His involvement in what occurred now falls to be determined pursuant to s 10(2) of that Act.
[4] On 10 August 2021, a jury found his co-defendant, Mr Heremaia, guilty of manslaughter.
The scope of the s 10(2) involvement hearing
[5]Section 10(2) of the CPMIPA provides as follows:
10 Inquiry before trial into defendant’s involvement in the offence
…
(2) The court must decide whether 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.
[6] If the Court is satisfied, to the prescribed standard, that the evidence against Mr Rafferty is sufficient to establish that he caused the act or omissions that form the basis of the offence of murder (or the included offence of manslaughter), then there will be a disposition hearing under subpart 3 of the CPMIPA to determine how to deal with Mr Rafferty.2 If the Court is not so satisfied, it will be required to dismiss the charge.3
1 R v Rafferty [2021] NZHC 1143.
2 Criminal Procedure (Mentally Impaired Persons) Act 2003, s 23.
3 Section 13(2).
[7]The purpose of s 10(2) is:4
… to avoid the possibility of a person who is found unfit to stand trial being subjected to detention or similar measures in circumstances where he or she has not, in fact, committed an offence.
[8] The scope of the s 10(2) enquiry has been the subject of some debate, both judicial and academic.
[9] In R v Ardler, the Court of Appeal in the Australian Capital Territory considered the Australian equivalent of s 10(2) and set out three possible interpretations of the phrase “the acts that constitute the offence charged”, namely:5
(a)proof…
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- [2022] NZHC 642
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CaseChat Overview and Summary
The court ordered that inquiries be made to determine the most suitable way of dealing with Rafferty under the Criminal Procedure (Mentally Impaired Persons) Act 2003. Rafferty was remanded to the Mason Clinic, and a disposition hearing was scheduled to be held within 30 days of the judgment. The court directed the Registrar to contact the health assessors who evaluated Rafferty for the fitness for trial hearing to obtain reports, if possible, to assist in the disposition hearing.
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