AThe reserved question of law, namely, “did I apply the correct test in finding the respondent unfit to stand trial under ss 4 and 14 of the Criminal Procedure (Mentally Impaired Persons) Act 2003” is answered: “No”.
BThe case is remitted to the District Court for reconsideration of the fitness to stand trial issue.

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REASONS OF THE COURT

(Given by Simon France J)

Introduction

The Solicitor‑General appeals the decision of Judge Kiernan holding that Mr Dougherty is unfit to stand trial.[1] Mr Dougherty is charged with 74 counts of filing false GST returns.
[1] R v Dougherty DC Auckland CRI 2008‑004‑29036, 22 March 2011.
It seems that Mr Dougherty is generally a capable person of average or better intelligence. However, he suffers from a delusional disorder centring on the Inland Revenue Department. He considers not only that he is being persecuted by the Department, but that the Commissioner of Inland Revenue persecutes many people within the community with the aim of forcing them to commit suicide. Mr Dougherty also suffers from depression.
Mr Dougherty’s delusional disorder qualifies as mental impairment within the meaning of that term in the Criminal Procedure (Mentally Impaired Persons) Act 2003. Because of the nature of his mental impairment, which is directed towards the informant, an issue arose as to whether he was fit to stand trial on the 74 tax fraud charges. Section 4 of the Act sets out when a mentally impaired person is unfit to stand trial:
unfit to stand trial, in relation to a defendant,—
(a)means a defendant who is unable, due to mental impairment, to conduct a defence or to instruct counsel to do so; and
(b) includes a defendant who, due to mental impairment, is unable—
(i) to plead:
(ii)to adequately understand the nature or purpose or possible consequences of the proceedings:
(iii)to communicate adequately with counsel for the purposes of conducting a defence.
The key test, then, is whether, because of the impairment, Mr Dougherty is unable to conduct a defence or to instruct counsel. Paragraph (b) of s 4 identifies some of the capacities an accused person must have before it can be said he or she is able to conduct a defence and instruct counsel. It is not an exhaustive list. There is no issue in this case that Mr Dougherty understands the charges, is able to plead, can follow court proceedings and appreciates the jeopardy he is in. The sole issue is whether, because of his delusion about the Inland Revenue Department, he can adequately instruct counsel, and consequently conduct a defence. The District Court concluded he could not.

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 Solicitor-General v Dougherty

Details

AGLC: Solicitor-General v Dougherty [2012] NZCA 405
Case: [2012] NZCA 405
Decision Date: 3 September 2012

CaseChat Overview and Summary

The Solicitor-General appealed against the decision of the District Court that Michael Dougherty was unfit to stand trial. Dougherty was charged with 74 counts of filing false GST returns. Dougherty suffered from a delusional disorder and depression. The Court of Appeal considered whether the District Court applied the correct test in finding Dougherty unfit to stand trial under ss 4 and 14 of the Criminal Procedure (Mentally Impaired Persons) Act 2003. The Court held that the District Court had applied an incorrect test. The Court found that the settled principle that fitness to plead does not include an inquiry into whether the accused will act in his or her best interests remained. The Court emphasised the importance of personal autonomy in this area of the law. The Court of Appeal remitted the matter back to the District Court for reconsideration in light of the law as affirmed in this case, and any fresh evidence that may be presented.

Orders