R v S - [2023] NZHC 273

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

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 S

Details

AGLC: R v S [2023] NZHC 273
Case: [2023] NZHC 273
Decision Date: 20 February 2023

CaseChat Overview and Summary

In the case of The King v S, the defendant, 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, thereby committing manslaughter. The defendant's fitness to stand trial has been brought into question due to substantial cognitive impairment, largely attributed to a condition known as dementia. The court must decide if Mr S is mentally impaired, unfit to stand trial, and if the evidence is sufficient to establish that he caused the accident which forms the basis of the charge against him.

The court considered two expert reports, one from a psychiatrist and the other from a clinical psychologist, both of which concluded that Mr S is mentally impaired and unfit to stand trial. The reports indicated that Mr S's cognitive impairment affects his ability to engage in the court process and communicate with his lawyer. Both experts agreed that Mr S's condition is unlikely to improve, making it improbable for him to become fit to stand trial even with optimal support and treatment. The court found that Mr S meets the criteria for mental impairment under the Criminal Procedure (Mentally Impaired Persons) Act 2003.

Furthermore, the court found that the evidence produced by the Crown, including witness statements, a crash investigation report, and the Coroner's report, was sufficient to establish on the balance of probabilities that Mr S caused the death of Mr Pearcey by his dangerous driving under the influence of alcohol. The evidence showed that Mr S was driving erratically and in the wrong lane, leading to the fatal collision. The court concluded that Mr S is currently suffering from a mental impairment and is unfit to stand trial.

In conclusion, the court found that Mr S is currently suffering from a mental impairment and is unfit to stand trial. Pursuant to the Criminal Procedure (Mentally Impaired Persons) Act 2003, the court directed inquiries to determine the most suitable method of dealing with Mr S. The court also made an order that Mr S's name be suppressed on an interim basis, to be reviewed at the disposition hearing. The disposition hearing is set for 28 April 2023, and Mr S is remanded to that date or such other date as advised by the court. Mr S is remanded on bail with the 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 is reserved for counsel to apply for further directions.

Orders