R v Rajsic - [2012] NZHC 2681

NOTE: PUBLICATION OF NAME OR IDENTIFYING PARTICULARS OF COMPLAINANT PROHIBITED BY S 139 OF THE CRIMINAL JUSTICE ACT 1985.

IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY

CRI-2012-004-2810 [2012] NZHC 2681

THE QUEEN

v

NIKOLA RAJSIC

Hearing: 11 October 2012

Appearances: S Wimsett for the Crown M Mortimer as Amicus The Accused in person

Judgment: 11 October 2012

ORAL JUDGMENT OF PRIESTLEY J

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

Counsel/Solicitors:
S Wimsett, Crown Solicitor, Auckland. Email: sam.wimsett@meredithconnell.co.nz
M Mortimer, Barrister, Auckland. Email: mariamort@xtra.co.nz

R V RAJSIC HC AK CRI-2012-004-2810 [11 October 2012]

[1] What is currently before me are procedures under the Criminal Procedure

(Mentally Impaired Persons) Act 2003.

[2] The accused, Mr Rajsic, was to be tried earlier this week on an indictment which alleged against him assaulting a complainant with intent to sexually violate her under s 129 of the Crimes Act 1961. An alternative charge was indecent assault laid under s 135.

[3] At various stages earlier this year legitimate concerns were raised about the accused’s mental state. I note that in the Court of Appeal judgment of R v McKay[1] the Court has leaned in what it described as a “diffident” way to the Act’s procedures being triggered if an accused, his counsel, or the Crown raise questions about an accused’s fitness to stand trial (at [74]).

[1] R v McKay [2009] NZCA 378.

[4] In this case Mr Rajsic did not retain counsel. Concerns have indeed been expressed by Crown counsel and by Ms Mortimer, who has assisted the Court as amicus.

[5] These concerns were clearly echoed by the Court. On 18 September 2012

Heath J referred to various medical issues which had arisen and directed that the accused be examined by a psychiatrist, Dr Nuth. Dr Nuth’s report has come to hand but I do not need to refer to it at the moment.

[6] Section 9 of the Act refers:

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.

[7] The focus must therefore be on whether the Crown, in this case, can produce

evidence sufficient to establish that the accused caused “the act” which lies at the

centre of the two counts which the accused faces.

[8] Mr Wimsett, having reflected on the situation, is content for s 9 purposes for the focus to be on the lesser charge of indecent assault.

[9] The complainant, Ms B, is in Australia. Although she was apparently ready to travel for the accused’s substantive trial she was not prepared to travel to New Zealand for the purposes of this hearing.

[10] Thus the evidence on which the Crown relies for…

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 Rajsic

Details

AGLC: R v Rajsic [2012] NZHC 2681
Case: [2012] NZHC 2681
Decision Date: 11 October 2012

CaseChat Overview and Summary

In the case of the Queen v Nikola Rajsic, the defendant was charged with assaulting a complainant with intent to sexually violate her, and an alternative charge of indecent assault. Concerns about the defendant's mental state led to an examination of his fitness to stand trial under the Criminal Procedure (Mentally Impaired Persons) Act 2003. The Crown was required to prove on the balance of probabilities that the defendant caused the act of indecent assault. The court considered the complainant's police interview transcript, DNA evidence from the ESR, and the photo montage identification by the complainant. The court found the DNA evidence compelling and was satisfied with the integrity of the photo montage identification procedure. The court concluded that the statutory threshold had been met, and the next phase was to assess whether the defendant was fit to stand trial.

The legal issue before the court was whether the Crown could establish on the balance of probabilities that the defendant caused the act of indecent assault, in order to satisfy the requirements of section 9 of the Criminal Procedure (Mentally Impaired Persons) Act 2003. The court considered the complainant's police interview transcript, DNA evidence from the ESR, and the photo montage identification by the complainant. The court found the DNA evidence compelling and was satisfied with the integrity of the photo montage identification procedure. The court concluded that the statutory threshold had been met, and the next phase was to assess whether the defendant was fit to stand trial.

The court reasoned that the complainant's police interview transcript provided a clear account of the assault, and the DNA evidence from the ESR showed a mixed DNA profile with at least one male DNA, and a subsequent sample taken from the complainant showed 30 points of identity. The court also found the photo montage identification procedure to be reliable, as the complainant identified the defendant within two minutes. The court was satisfied that the Crown had met the burden of proof required by section 9 of the Act. The court found that the evidence was sufficient to establish that the defendant caused the act of indecent assault.

The court's final order was that the defendant was fit to stand trial, and the case would proceed to trial. The court found that the Crown had established on the balance of probabilities that the defendant caused the act of indecent assault, and the defendant was fit to stand trial. The court's decision was based on the evidence presented, including the complainant's police interview transcript, DNA evidence from the ESR, and the photo montage identification by the complainant. The court concluded that the statutory threshold had been met, and the next phase was to assess whether the defendant was fit to stand trial.

Orders