R v Slater
[2025] NZHC 1497
•9 June 2025
IN THE HIGH COURT OF NEW ZEALAND NEW PLYMOUTH REGISTRY
I TE KŌTI MATUA O AOTEAROA NGĀMOTU ROHE
CRI-2024-043-626
[2025] NZHC 1497
THE KING v
JAMIE SLATER
Hearing: 4 June 2025 Appearances:
C E Clarke and P Lange for Crown
N Bourke and P M Keegan for Defendant
Judgment:
9 June 2025
JUDGMENT OF CHURCHMAN J
[Fitness to stand trial]
Background
[1] The first part of a hearing under s 8A of the Criminal Procedure (Mentally Impaired Persons) Act 2003 (CPMIP) was held on 14 May 2025. The hearing was adjourned until 4 June 2025 to allow the Crown an opportunity to cross-examine Dr McFadden. Dr McFadden had filed a Health Assessor Report but had been out of the country on 14 May 2025 and unavailable for cross-examination.
[2] In my decision adjourning the s 8A hearing1 I also directed that Dr Immelman prepare a further s 38(1)(a) report. That further report was received shortly before the 4 June 2025 hearing commenced.
1 R v Slater [2025] NZHC 1153.
R v SLATER [2025] NZHC 1497 [9 June 2025]
The resumed hearing
[3] When cross-examined by the Crown Solicitor, Dr McFadden acknowledged that there had been a significant change in the defendant’s presentation since her original interview of him. She noted that there were a number of risk factors likely to be in play as being causative of the defendant’s current presentation.
[4] When questioned whether the defendant’s behaviour might indicate a choice to try to “play the system” Dr McFadden responded by saying that the defendant has a highly damaged brain and appeared to be unable to regulate his cognitive processes and emotions. She did not see the defendant’s behaviour as being within his control but rather was the product of the brain injuries he had sustained. She expressed the opinion that there was no point in obtaining a communication assistant (other than in a therapeutic context).
[5] She expressed the view that she was now of the opinion that the defendant could no longer be considered fit to plead. She also expressed the view that the defendant did not have the capacity either to make a plea or to give evidence. She thought that, on the basis of the contents of Dr Immelman’s further report, that the defendant’s capacity to communicate had deteriorated since the time she interviewed him.
[6] When she was asked whether she had concern that the defendant could be “malingering” Dr McFadden’s response was to say that the behaviour that Dr Immelman had noted in his second report could be described as a continuation of his pre-existing behaviour and as a product of the stress the defendant was experiencing. She did not see it as an attempt on the part of the defendant to present himself as being more impaired than he actually was.
[7] Dr Immelman’s report of 4 June 2025 expressed a number of relevant conclusions. These are:
(a)[The defendant’s] mental health problems include a range of psychiatric, cognitive, and behavioural domains. His difficulties include: exposure to severe trauma, chronic depression, anxiety, impulsivity and emotional instability.
(b)These difficulties have been further compounded by two traumatic brain injuries, which have resulted in a diagnosis of Major Neurocognitive Disorder due to Traumatic Brain Injury.
(c)[The defendant] poses a significant risk to himself, including recurrent self-injury, and suicidality associated with hopelessness and apathy.
(d)He has a history of impulsive violence and despite denying an intent to harm others [sic]. He appears intermittently volatile and unpredictable. His vulnerability to further health deterioration is exacerbated by uncontrolled epilepsy, poor adherence to medications, and the long-term impacts of traumatic brain injuries.
(e)[The defendant] has experienced a significant decline in memory and executive functioning, as confirmed by both collateral history and standardised neuropsychological testing, following at least two traumatic brain injuries that involved loss of consciousness. These cognitive deficits have resulted in the person requiring assistance with managing daily tasks indicating interference with independence. The symptoms began immediately after the injury, have persisted beyond the initial recovery period, are not attributable to delirium or another mental disorder, and are directly linked to the documented traumatic brain injury.
[8] Dr Immelman confirmed that his second evaluation of the defendant “confirmed and consolidated [his] initial evaluation in all regards”.
[9] When asked questions about whether the defendant might be “malingering”, he described the irrevocable damage done by the two brain injuries and expressed the opinion that the defendant could not have “malingered” this sort of damage. He also expressed the view that it was not now possible to say with any certainty that the defendant has an anti-social behavioural disorder but said that the primary cause of the difficulties being experienced by the defendant was his traumatic brain injuries. He concluded that the frontal lobes of the defendant’s brain had incurred structural damage.
Legal submissions
[10] Ms Clarke spoke to her written synopsis and conceded that, on the basis of the evidence of Dr McFadden and Dr Immelman, the defendant was not fit to plead and that the test under s 8A CPMIP had been met. The defence did not contest this.
Analysis
[11] Having listened carefully to the evidence of the two Health Assessors, I find that the defendant is unable, due to mental impairment, to conduct a defence or to instruct counsel to do so. He is clearly not able to adequately understand the nature or purpose or possible consequence of the proceedings or to communicate adequately with his counsel for the purposes of conducting a defence.
[12] There have been a number of cases where the Court has accepted a mental impairment as having been caused by a brain injury.2
[13] As required by s 8A(2)(c) I record my finding that the defendant is unfit to stand trial.
2 See R v RTPH [2014] NZHC 1423 at [9]; Jones v R [2015] NZCA 601 at [15]; and R v Rafferty
[2021] NZHC 1143.
Involvement and Disposition hearings
[14] As a result of my finding that the defendant is unfit to stand trial, I am now obliged to enquire into the defendant’s involvement in the offence under s 10 of CPMIP. I have to decide whether I am satisfied, on the balance of probabilities, that the evidence against the defendant is sufficient to establish that he caused the act or omission that forms the basis of the charge against him.
[15] If I am not satisfied of the matters set out in s 10 (2), I will have to dismiss the charge against the defendant with the result that my finding that the defendant is unfit to stand trial will be quashed. If I am satisfied of the matters set out in s 10(2) then I will have to proceed to deal with the defendant under subpart 3 of CPMIP.
[16] I raised with counsel on 4 June 2025 the issue of whether or not there is sufficient evidence of self-defence for that matter to be a live issue at the involvement hearing.
[17] Ms Clarke’s position was that there was no evidence that the defendant acted in self-defence other than the fact that the defendant had touched upon it in his statement.
[18] Having reviewed the statement, it does not contain a direct reference to self-defence but there are some comments that would indicate the defendant went and got a knife as a result of the fact he was scared of the five or six gang members who were in the room.
[19] Ms Clarke was of the view the issue of whether the defendant caused the act or omission that formed the basis of the charge against him could be established on the papers. Mr Bourke was of the view that, simply on the basis of the comments in the defendant’s statement, it was unlikely that a Judge would leave the issue of self-defence to a jury.
The case law
[20] The Court of Appeal in Repira v R3 has recently reviewed a case law in relation to involvement hearings.
[21] In Repira the Court of Appeal specifically considered the mental element that was required to be considered in any inquiry into a defendant’s involvement in an offence.
[22]Relevant to the issues facing this Court, the Court of Appeal said:4
As we come to shortly, the settled position in New Zealand is that at an involvement hearing, the prosecution is required to prove the actus reus of the offence, including any mental element that is integral to actus reus. In addition, the Court may consider a possibility of mistake, accident or self-defence where there is objective evidence of that. Otherwise, the issue of mens rea does not arise for consideration. (italics added).
[23] At the involvement hearing, I will therefore need to consider whether the Crown has satisfied me, on the balance of probabilities, of the defendant’s involvement in the acts constituting the offence of murder. I will also need to consider whether the Crown has negatived, on the balance of probabilities, the availability of any defence of self-defence.
[24] Unless challenged by the defendant, the Crown is able to lead evidence by way of statement. If the defence wants to cross-examine any of the Crown’s witnesses, they have the right to do so.
[25] Counsel have indicated that it may be possible to hold both the involvement hearing and disposition hearing on the same day.
[26] Section 13(4) CPMIP requires that, if I am satisfied that the defendant is unfit to stand trial, and of the defendant’s involvement in the offence to the extent that he
3 Repira v R [2024] NZCA 677.
4 At [13].
caused the act or omission that forms the basis of the charge against him, I must then move to disposition.
[27] Subpart 3 of CPMIP specifies the course the Court is required to follow where a defendant is found unfit to stand trial.
[28] Section 23(1) requires that when a person is found unfit to stand trial the Court must order that inquiries be made to determine the most suitable method of dealing with the person under s 24 or s 25 of the Act.
[29] Section 23(2) states that for the purposes of these inquiries the Court must either —
(a)make it a condition of a grant of bail that the person go to a place approved by the Court for the purpose of the inquiry; or
(b)remand the person to a hospital or a secure facility.
[30] Section 23(3) of the CPMIP states that despite any provision in the Bail Act 2000 in deciding whether or not to grant bail for the purposes of subs (2)(a) the need to protect the public is the paramount consideration.
[31] Section 23(4) provides that inquiries under s 23(1) must be completed as quickly as practicable and, in any event, within 30 days after the date of the order under which the inquiries are made.
Discussion
[32] In anticipation that the Crown will be able to establish the defendant’s involvement in the killing of the deceased and that there is no objective evidence to support any defence of self-defence, I direct that a report be obtained by Dr Immelman pursuant to s 23(1) CPMIP to address the most suitable method of dealing with the defendant.
[33] Given the clear view expressed by Dr Immelman in his second report that the defendant presents a major risk to himself and the public, it would not appropriate to grant him bail. I therefore remand the defendant to a secure psychiatric facility. That remand is to facilitate Dr Immelman’s preparation of his report on the most suitable method of dealing with the defendant at the disposition hearing.
[34] I also direct that, no later than five working days prior to the date fixed for the involvement and disposition hearing, the Crown files and serves submissions in relation to both matters with the defence filing and serving submissions in response no later than two working days prior to the date fixed for the hearing.
Churchman J
Solicitors:
Crown Solicitor, New Plymouth for Crown