R v S
[2023] NZHC 273
•20 February 2023
ORDER PROHIBITING PUBLICATION OF NAME OF THE DEFENDANT UNTIL FURTHER ORDER OF THE COURT IN THE HIGH COURT OF NEW ZEALAND WHANGANUI REGISTRY
I TE KŌTI MATUA O AOTEAROA WHANGANUI ROHE
CRI-2022-083-001198
[2023] NZHC 273
THE KING v
S
Hearing: 20 February 2023 Appearances:
J J Harvey for the Crown
S J Burlace for the Defendant
Judgment:
20 February 2023
JUDGMENT OF GRICE J
(Fitness to stand trial)
Introduction
[1] Mr S is charged with causing the death of Jeremy Pearcey by an unlawful act, namely driving a motor vehicle in a dangerous manner while under the influence of alcohol, and thereby committing manslaughter.1
1 Crimes Act 1961, ss 151(1), 171, 160(2)(a) and 177; and Land Transport Act 1998, ss 36AA and 61(1)(b) — maximum penalty life imprisonment. At the request of the Crown, and without opposition, leave was granted to amend the charge to include the correct reference to s 160(2)(a) of the Crimes Act (rather than s 160(b)) and to include the references to the Land Transport Act. The decision was delivered orally, noting that a written copy of the decision would be provided in due course and it would be edited to include footnotes and for flow and grammar but would be
R v S [2023] NZHC 273 [20 February 2023]
[2]A trial date had been set in this matter for 30 October 2023.
[3] An issue has now arisen as to Mr S’s fitness to plead. The issue relates to Mr S’s present capacity to engage in any meaningful sense in the court process due to substantial cognitive impairment which has affected his ability to give meaningful instructions and to communicate with his lawyer in an adequate way. This is largely due to a condition popularly known as dementia. Two health assessors who are experts have provided reports to the Court. One is a psychiatrist and one is a psychologist. I refer to those in more detail shortly.
Three-step process under the Criminal Procedure (Mentally Impaired Persons)
Act 2003
[4] As an enquiry into fitness has been triggered, the provisions of the Criminal Procedure (Mentally Impaired Persons) Act 2003 (the Act) apply. The Act sets out a three-stage process which must be followed in the circumstances.2
[5] First, the Court is required to consider whether the defendant is mentally impaired based on the evidence of two health assessors.3
[6] Secondly, if the Court finds the defendant is mentally impaired, it must go on to find whether the defendant is unfit to stand trial.4
[7] Finally, if the defendant is unfit to stand trial, the Court must then undertake an enquiry to determine the defendant’s involvement in the alleged offence.5
[8]I deal with each of those three steps now.
Does Mr S suffer from a “mental impairment”?
[9] The term “mentally impaired” is expansive. The definition goes beyond whether the defendant suffers from a mental disorder, as defined in the Mental Health
substantially the same.
2 R v Mackay [2009] NZCA 378, [2010] 1 NZLR 441 at [34] and [39].
3 Criminal Procedure (Mentally Impaired Persons) Act 2003, s 8A(1)–(2).
4 Section 8A(2)(b)–(c).
5 Sections 10–13.
(Compulsory Care and Rehabilitation) Act 1992 or an intellectual disability. The term “mentally impaired” extends to a mental state or condition that impairs fitness to stand trial and renders the defendant unable to participate adequately in the trial. Participation may include but is not limited to pleading, understanding the nature, purpose or possible consequence of the proceeding, and communicating adequately with counsel to conduct a defence.6
[10] The Court has before it a psychiatric report and assessment by Dr Andrew Bailey, a consultant forensic psychiatrist, dated 29 November 2022. In addition, I have a psychological report prepared by Mr Paul Carlyon, a clinical psychologist with the Mental Health, Addictions and Intellectual Disability Service of Te Whatu Ora – Health New Zealand, that is dated 22 November 2022.
[11]Dr Bailey in his report says:
(a)Mr S has significantly impaired cognitive function in various domains without a specific diagnosis.
(b)It is unlikely that as a result of this he would have been unable to appreciate the nature and quality of his actions or appreciate the wrongness. It is highly likely that his voluntary intoxication prior to the alleged offence contributed to his decision-making.
(c)Mr S would meet the criteria for mental disorder in terms of the Mental Health (Compulsory Treatment and Assessment) Act 1992.
(d)Mr S has significant cognitive impairment which would likely cause a serious danger to his own safety were he not to have support.
(e)The mental impairment significantly affects his cognitive ability so he has a very limited appreciation of the court processes and indeed of the offence with which he is charged.
6 Tully v R [2020] NZCA 690 at [31], adopted in R v Hape-Moke [2022] NZHC 2785 at [7].
[12]Dr Bailey says of Mr S:
… He has a very limited appreciation of the court process and indeed of the offence with which he is charged. Although he has a superficial understanding of the roles of the people involved in the court process and of the difference between entering a guilty or not guilty plea, his inability to retain information, even for relatively short periods of time, means that he is unable to provide instruction to his lawyer. It is highly unlikely that he would be able to engage in any meaningful sense in the court process. Due to the likely progressive nature of his cognitive impairment, it is unlikely that he will become fit to stand trial, even with optimal support and treatment.
[13] Dr Bailey says Mr S’s condition might be described as a “disease of the mind”, but it did not render him incapable of understanding the nature and quality of its actions or the morality of the actions at the time of the offence.
[14]Dr Bailey went on to say:7
… As a result, it is unlikely he would be able to make out a defence on the
basis of insanity. In addition, his voluntary intoxication through alcohol consumption would have likely had the effect of disinhibiting his actions and undoubtedly [played a] part in the sequence of events.
[15] Therefore, for the purposes of the Act, Mr Bailey concludes that Mr S has a significant cognitive impairment which could be thought of as a “disease of the mind” in terms of s 23 of the Crimes Act 1961, but it is unlikely he could make out a defence on the basis of insanity. Nevertheless, he is unfit to stand trial under the provisions of the Criminal Procedure (Mentally Impaired Persons) Act due to his cognitive impairment and it is unlikely he will become fit to stand trial even with optimal support and treatment due to the nature of the mental impairment.
[16] Mr Carlyon, a clinical psychologist who assessed Mr S, carried out a number of tests on him. A screening assessment of Mr S’s cognitive function was first carried out. In this Mr Carlyon administered a test to screen for “feigned or exaggerated psychiatric disturbance and cognitive dysfunction.” The result was that there was no likely feigning in any area, and he was of the opinion that the screening assessments reported on could be relied upon. Mr Carlyon administered the Older Adults Cognitive
7 Emphasis in original.
Screener (OACS) test. This examined a range of domains related to neurocognitive impairment on reported information.
[17] The psychologist concluded that Mr S exhibited impairment in six of the seven domains explored. They were: executive function; complex attention; language; perceptual-motor; social-cognitive; and learning and memory. Three domains in particular appeared to be very impaired, that is below the level of a sample of people with dementia. They were executive functioning, complex attention, and learning and memory.
[18] Mr Carlyon then administered the Addenbrooke’s Cognitive Examination (ACE III) which is a screening, rather than an in-depth, assessment of a range of cognitive abilities, including attention, memory, fluency, language and visuospatial. Mr Carlyon formed the view that the results permitted a reliable interpretation.
[19] The Addenbrooke Cognitive Examination provided a score of 71/100. This is strongly suggestive of cognitive impairment. The psychologist indicated this was consistent with the earlier test and exhibited impaired memory and intention.
[20] In summary, the screening assessments of Mr S’s cognitive functioning highlighted deficits in memory, executive functioning, and attention. Mr Carlyon gave his opinion that Mr S was mentally impaired because of a neurocognitive disorder and the impairment is such that he is unlikely to be able to instruct counsel or conduct his own defence. He said:
… While I believe he could plead in an informed way, and that he understands a sanction (such as imprisonment) is possible, Mr [S] could not adequately communicate with his legal counsel. Screening assessments suggest significantly impaired memory and attentional functioning and that is compounded by his vulnerability to confabulation (erroneously filling in the gaps when his memory is poor) and tendency to accept direction or suggestion from others whom he perceives as in authority, or expert.
In my opinion, Mr [S] is unfit to stand trial for the alleged offending. I do not believe it is at all likely that his condition will improve.
[21] Mr Carlyon confined himself to the assessment at hand and made no assessment of Mr S’s offence-related risks or needs. He has not given any opinion about potential treatment or care pathways. However, Mr Carlyon concluded that in
his opinion, at the time of the assessment Mr S was unlikely to be found fit to stand trial for the current alleged offending and the defence of insanity was not likely to be available to Mr S.
[22] The submissions of both the Crown and Ms Burlace for the defence do not contest the evidence of the health assessors.
[23] The Crown referred to the case of R v Tofilau, a decision of this Court involving a case where the defendant was suffering from dementia.8 He could understand the Court processes but could not instruct or adequately communicate with counsel. So, it is similar to this case. .The defendant was found unfit to stand trial.
[24] Mr S has been suffering from what is popularly described as dementia. I am satisfied that it is appropriate to record findings that Mr S is both mentally impaired and currently unfit to stand trial.9
Is the evidence sufficient to establish that Mr S caused the accident which forms the basis of the offence with which he is charged?
[25] I must be satisfied on the balance of probabilities that the evidence against Mr S is sufficient to establish the basis of the offence.10
[26] I have received, in addition to the Coroner’s report and the crash investigation report, eight formal written statements. I have heard from Mr S’s lawyer, Ms Burlace, and the defence has also filed written submissions. These note that the Crown has submitted that the Court can be satisfied that the defendant caused the death of Mr Pearcey by his dangerous driving under the influence of alcohol.
[27] Ms Burlace indicated she does not wish to be heard further on that. She accepts that it is a matter for this Court on the material provided by the Crown as to whether in the circumstances it has been established that Mr S caused the accident forming the basis of the offence with which he is charged.
8 R v Tofilau [2019] NZHC 2145.
9 Under s 8A(2) and (2)(b) of the Criminal Procedure (Mentally Impaired Persons) Act.
10 Section 10(2).
[28] The submissions indicate that this Court should then direct inquiries be made pursuant to s 23 of the Act to assist in the disposition of this matter.
[29] The Crown has filed a crash investigation report prepared by Senior Constable Matthew Love, as well as the Coroner’s report prepared by Dr Amy Spark and a number of formal statements by witness who observed the driving of Mr S immediately before the accident and assisted at the accident scene.
[30] That material shows that on 10 June 2022, a Ford utility driven by Mr S collided with a Volkswagen Golf driven by Mr Jeremy Pearcey about four kilometres outside of Turakina toward Bulls. Mr Pearcey died of multiple injuries sustained in the motor vehicle accident. The Coroner’s report confirms the injuries that he suffered caused his death. He died at the scene of the accident.
[31] Mr S’s blood level was 186 micrograms of alcohol per 100 millilitres of blood. This is nearly four times the legal limit. A cannabis substance was also identified in Mr S’s bloodstream, but the Crown does not rely on the presence of this as the basis of the offence as it was minimal.
[32] At the time of the impact Mr S would have been driving at about 114 kilometres per hour.
[33]The witnesses at the scene described Mr S driving dangerously about
2.3 kilometres north-west of the scene. Mr S attempted to overtake a vehicle driven by Mr Arnold around a blind corner with Mr S driving south in the oncoming northwest traffic passing lane.
[34] Mr S’s driving was also observed by Mr Gwynn and Mr O’Connor, who were travelling toward the defendant’s oncoming vehicle. They were on their correct side of the road but had to move left to avoid a collision with Mr S who was driving toward them on the wrong side of the road. Mr Gwynn had been in the passing lane in an over taking manoeuvre and made contact with Mr O’Connor’s car when both moved to the left.
[35] Mr S then proceeded for another 1.4 kilometres before the accident occurred shortly after the earlier incidents. Mr S had been followed by a vehicle driven by Ms Glasgow, who described the defendant’s driving as “really, really bad”, “really erratic” and “hanging out in the other lane”.
[36] The collision occurred entirely in Mr Pearcey’s lane of travel. There were no other vehicle defects or road conditions which would have been causative of the collision. In particular, nothing related to Mr Pearcey’s driving or his vehicle contributed to the accident.
[37] I am satisfied, given the evidence produced by the Crown in the formal statements and reports, that Mr S caused the death of Mr Pearcey by his dangerous driving while under the influence of alcohol.
[38] In relation to some charges an inquiry as to the mental element of the charge is required in order for the Court to be satisfied that the acts that form the basis of the charge are made out under s 10 of the Act. In this case, that issue does not arise. The focus for consideration is on the acts forming the basis of the charge.11
[39] Under s 171 of the Crimes Act, the definition of manslaughter is culpable homicide not amounting to murder. Culpable homicide is defined under s 160(2)(a) of the Crimes Act as consisting of the killing of any person by an unlawful act.12 The unlawful acts in this case are driving in a dangerous manner and doing so while under the influence of alcohol.
[40] I am satisfied on the balance of probabilities that Mr S caused that act that forms the basis of the charge against him.
[41] I make that finding based on, in summary, first the opinion of the Coroner who conducted the post-mortem. In her report of 8 August 2022, she concludes the cause of Mr Pearcey’s death were the multiple injuries he suffered in the car accident.
11 Known as the actus reus.
12 The Crown was granted leave to amend the charge to refer to s 160(2)(a) which refers to culpable homicide by unlawful act. Counsel for the defendant did not oppose the amendment noting the amendment caused no prejudice to the defendant.
[42] Secondly, the evidence of the witnesses who observed Mr S’s driving immediately before the crash indicated that he was driving very erratically, in the wrong lane and toward the path of oncoming traffic.
[43] Thirdly, the evidence in the Crash Report including the technical evidence relating to the examination of the vehicles and of the scene of the accident. This indicates that the accident occurred entirely in Mr Pearcey’s lane and involved a head- on collision. Evidence taken from Mr S’s vehicle indicates his vehicle was travelling approximately 114 kilometres per hour immediately before the crash.
[44] I am satisfied on the balance of probabilities that the evidence taken together is sufficient to establish that Mr S caused the act that forms the basis of the charge against him. The acts gave rise to the death of Mr Pearcey as a result of the collision.
Conclusion
[45] I find the necessary causal link between the events in issue and Mr S’s actions to be established in terms of s 10 of the Act.
[46] I conclude that Mr S is currently suffering from a mental impairment and is unfit to stand trial.
[47] Pursuant to s 23 of the Act, I now direct that inquiries be made to determine the most suitable method of dealing with Mr S under s 24 of the Act. Those inquiries must be completed as quickly as practicable and, in any event, within 30 days after the date of this order. For that purpose, I will make some further orders about those arrangements.
[48] I direct that the reports prepared by Dr Bailey and Mr Carlyon for this Court be made available to Mr S’s treating clinicians and I reserve leave for counsel to apply for any further directions in this matter.
Suppression
[49] The interim suppression order in place relating to Mr S’s name will continue until the disposition hearing. This continues at the request of the Crown and the defendant on the basis it is to enable the Crown time to consult with the victim’s family. The matter of final suppression will be dealt with at the disposition hearing.
[50] I make an order that Mr S’s name be suppressed on an interim basis, to be reviewed at the disposition hearing on 28 April 2023.
[51] The disposition hearing is set down for 28 April 2023 in this Court. Mr S is remanded to that date or such other date for hearing as advised by the Court.
Bail
[52] Mr S is remanded on bail on the existing bail terms and conditions with a further condition that he attend as required at the offices of the Regional Forensic Mental Health Services Palmerston North or such other place as directed by a health assessor appointed for the purpose of the inquiries under s 23 of the Act.
Leave
[53]Leave is reserved for counsel to apply for further directions.
Grice J
Solicitors:
Wilkinson Smith Lawyers, Whanganui Debbie Goodlet, Whanganui
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