Solicitor-General v Dougherty
[2012] NZCA 405
•3 September 2012
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| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA492/2011 [2012] NZCA 405 |
| BETWEEN THE SOLICITOR-GENERAL |
| AND MICHAEL JOHN DOUGHERTY |
| Hearing: 19 July 2012 |
| Court: Glazebrook, Arnold and Simon France JJ |
| Counsel: C L Mander for Appellant |
| Judgment: 3 September 2012 at 11.30 am |
JUDGMENT OF THE COURT
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.
____________________________________________________________________
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.
Section 19 of the Act provides for prosecution appeals against such findings, but only on a question of law. It prescribes no particular process for the appeal, other than to incorporate the appeal provisions of the Crimes Act 1961, with necessary modifications. Accordingly, based on an analogy with s 380(6) of the Crimes Act 1961, the case stated procedure has been used. The ultimate question posed for the Court is whether, in reaching her decision, the Judge applied an incorrect test.
An abandoned trial
The allegation is that over a period of several years, Mr Dougherty incorporated 48 companies to facilitate his alleged fraudulent activity. It is said that many or most of the persons identified as directors or shareholders of the companies were false, and that the various trading activities identified for the companies were also fictitious. None traded, but each purported to file GST returns. However, seemingly to avoid detection, no company filed more than two returns. The allegation is that, between 3 March 2000 and 17 May 2006, there were 74 fraudulent returns from which Mr Dougherty received over $800,000.
A trial of the allegations took place in August 2010 before a jury. However, on the second day of trial, counsel for Mr Dougherty raised issues about his client’s fitness to stand trial. Judge Field declared a mistrial, and requested the forensic nurse on call to assess Mr Dougherty. The assessment concluded that whilst Mr Dougherty appeared fit to stand trial, there may be an issue as to his ability to make:
balanced, well reasoned decisions throughout a potentially protracted court case, on issues of relative complexity and seriousness ...
The report recommended that Mr Dougherty be assessed by appropriate health practitioners, and this was duly ordered. As part of the fitness to stand trial process, Judge Kiernan completed the required assessment under s 9 of the Act. Her Honour determined, on the balance of probabilities, that Mr Dougherty was responsible for the acts which form the basis of the charges. There is no challenge to that finding.
Reports from two psychiatrists were obtained, and both also gave oral evidence. In order to better consider the significance of this evidence, it will be helpful to set out in general terms the debate over the legal test to which this evidence is directed.
The legal issue
At the heart of the dispute between the parties is the extent to which the Criminal Procedure (Mentally Impaired Persons) Act changes the approach to “unfitness to stand trial” inquiries that had been established under the previous legislation. In particular, is “decisional competence” now part of the fitness assessment? Decisional competence is intended to embrace the idea that not only must an accused person be able to communicate and instruct counsel, but in so doing, he or she must also be able to rationally assess what defence would be in his or her best interests, and be able to choose that defence.
The approach that prevailed under the Criminal Justice Act 1985 was that decisional competence was not part of the inquiry. That position is captured succinctly in R v Power:[2]
That test [under s 108 of the Criminal Justice Act] does not require that the appellant actually give instructions which are in his or her best interests. A high[3] threshold of fitness, including a best interests component, would derogate from the fundamental principle that accused persons are entitled to choose their own defences and to present them as they choose …
[2] R v Power CA187/96, 22 October 1996 at 7–8.
[3]Courts have traditionally described the level of competence required to be established before a person is considered fit to stand trial as “low”. Thus, the reference in this passage to a high threshold is a reference to increasing the level of competence an accused person must display before a finding of fitness to stand trial will be made.
The law as set out in Power was settled law. However, subsequent to the enactment of the new legislation, there are decisions of the High Court, notably P v Police[4] and R v Roberts,[5] that could be taken as saying that the Act has effected a change, and that Power no longer represents the law.[6] The new approach, if it exists, is captured by how Fogarty J in Roberts rephrased the question to be addressed by the health assessors:[7]
So the question is whether or not [R] is “unable, due to mental impairment, to conduct a [rational] defence or to instruct counsel to do so”, in this case.
(Judge’s emphasis)
[4] P v Police [2007] 2 NZLR 528 (HC).
[5] R v Roberts (No 2) HC Auckland CRI-2005‑092‑14492, 22 November 2006 at [57].
[6]In S v Police HC Palmerston North CRI 2005‑454‑47, 8 December 2005, MacKenzie J noted that the new wording may represent an increase in the capacity required of a defendant (at [23]).
[7] Above n 5, at [57].
Whilst the italicised words are almost a direct lift from the text of s 4(a) of the current Act, the Judge has added the word [rational] to the statutory language. The purpose of doing this was to make decisional competence, or a best interests inquiry, part of the fitness to stand trial test.
The Solicitor‑General’s position is that the statement of the question posed in Roberts is contrary to Power, and is wrong. It is further submitted that the only explanation for the decision reached in the present case is that Judge Kiernan has applied the Roberts formulation, and this had led the Court into error.
The respondent does not dispute that the District Court has applied the High Court decisions. Mr Tennet submits Judge Kiernan was correct to do so as those decisions accurately stated the law under the present Act. Accordingly, the Crown appeal is to be seen as merely a challenge to the factual findings, and flawed for that reason. Mr Tennet submits that, from a policy perspective, greater flexibility is to be encouraged in an area where understanding of mental impairment and its effects has increased significantly.
Against that background we return to the medical evidence in the present case.
Psychiatric assessments
(a) Dr Pillai
Dr Pillai initially assessed Mr Dougherty in September 2010. Then, together with a second psychiatrist, Dr Djokovic, he further interviewed Mr Dougherty on the morning of the oral hearing, 15 February 2011.
In his initial report Dr Pillai identified Mr Dougherty as being depressed, and as having feelings of being persecuted. He described Mr Dougherty as being totally preoccupied with the perceived injustice of the allegations and charges against him. At that time Dr Pillai did not consider these sentiments were yet being felt with an intensity that justified them being classified as delusional. He noted that Mr Dougherty was able to be diverted from them and was, in his own way, willing to accept alternative explanations for his experiences.
Following the further assessment undertaken on the morning of the fitness hearing, Dr Pillai’s diagnosis changed. He considered his original diagnosis may have been conservative as regards the symptoms of persecution, and now agreed with Dr Djokovic that Mr Dougherty suffered from a delusional disorder. Initially, Dr Pillai had placed more emphasis on the depression as being the driver of Mr Dougherty’s mental state, but now he also was of the view that there was a clear delusional disorder. Dr Pillai considered the beliefs to be at the eccentric end of the scale, and at the limits of normal belief systems, but not bizarre.
Concerning the effects of this disorder on the issue of fitness to stand trial, in his initial report Dr Pillai observed:
In the context of the above mentioned mental status examination I conducted an assessment of fitness to stand trial. Mr Dougherty was clearly able to describe to me the charges he faced and in a concise manner summarised the chronology of this and the criminal justice processes until the time of interview. Mr Dougherty also described his perception of unsatisfactory dealings with his former lawyer who he released earlier this year. Mr Dougherty was able to describe various aspects of his case he believed were abnormal and outside normal practising procedures and in his eyes this was evidence of how normal process had been subverted in his circumstance. He was able to accept this was not necessarily malicious but did believe that it was at the very least avoidant of work and negligent. Mr Dougherty stated he held a neutral opinion of his current counsel. Further he believed the Judge and process of judgement would be “impartial” although based on what he believed was flawed evidence. Mr Dougherty told me how he intended to plead and was able to identify other possible pleas available to him and why they were not appropriate in his circumstances.
In oral evidence Dr Pillai confirmed that his reassessment of Mr Dougherty’s mental state had not led him to change his mind about fitness to stand trial:
I don’t think he’s unable to conduct a defence but the question is whether it will be a defence which is in his best interests.
Dr Pillai considered that Mr Dougherty’s instructions were coloured by his delusions. It meant that Mr Dougherty wanted to introduce a lot of extra material that would not appear to be relevant to the case. Further, his interpretation of the evidence would be coloured by his belief in a conspiracy, and his delusions were influencing some but not all of his instructions to counsel.
(b) Dr Djokovic
Dr Djokovic initially interviewed Mr Dougherty in November 2010, and then again with Dr Pillai on the morning of the hearing.
In her initial report Dr Djokovic noted that Mr Dougherty’s mood, by his own admission, was improved from when he had seen Dr Pillai. However, there was still present the preoccupation with the perceived injustice of the allegations against him. There were also claims by Mr Dougherty that he was under surveillance by the Inland Revenue Department. However, Mr Dougherty explained to Dr Djokovic that he understood the limited confidentiality of the interview, so he would not expand on his views that the Department had set him up so as to destroy him.
Dr Djokovic concluded that Mr Dougherty qualified for assessment as suffering from a delusional disorder, persecutory type. Like Dr Pillai, she considered they were not bizarre delusions. In Dr Djokovic’s assessment, Mr Dougherty’s functioning and behaviour had been affected, but not markedly other than the actual delusions themselves, and the impact of the delusions on matters related to their subject matter.
Concerning fitness to stand trial, in her report Dr Djokovic first set out the statutory criteria. She then also identified nine further relevant inquiries that had been identified by Baragwanath J in P v Police, namely whether the defendant could:[8]
· Understand the charge,
· Plead to the charge and exercise the right of challenge,
· Understand the proceedings,
· Follow the course of the proceedings,
· Understand the substantial effect of the prosecution evidence,
· Make a defence or answer to the charge,
· Decide what defence to rely on,
· Give instructions to counsel,
· Make his version of the facts known to court and counsel.
[8]P v Police above n 4, at [24]. These had, in turn, been taken from Australian authorities, in particular Ngatayi v R (1980) 147 CLR 1 (HCA).
Dr Djokovic then assessed Mr Dougherty in relation to these criteria. Concerning the particular issue of his ability to communicate with counsel, Dr Djokovic observed:
He is aware of the importance of communicating clearly with his lawyer in order to assist his defence although Mr Dougherty stated he has “lost confidence in his lawyer”.
He was able to clearly communicate with me his intentions and I have no reason to believe that he will not be able to communicate with his lawyer if he feels confident enough to represent his case.
The report then concluded:
It is my opinion that Mr Dougherty’s current mental state is not currently disabling him to the extent that he is unable to plead, adequately understand the nature and purpose of the possible consequences of the proceedings or to communicate adequately with counsel for the purpose of conducting his defence. It is my opinion that at the time of our assessment that Mr Dougherty was fit to stand trial.
At the oral hearing Dr Djokovic, like Dr Pillai, adhered to her initial assessment that Mr Dougherty was fit to stand trial. She observed that Mr Dougherty’s delusions:
... are influencing his ability to instruct counsel but he is not basing all his instructions on his delusional beliefs, that means part of his instructions are quite valid ...
... he is able to instruct the counsel in the pleas that he wants to enter. He had the ability to understand the nature and the purpose and the possible consequences of the proceeding and he was able to communicate with the psychiatrist – with us – the purpose of conducting the defence and the consequences of conducting the certain defence. Although his defence at times is influenced by those delusional beliefs he does have the ability to partially instruct the counsel.
Decision under appeal
Judge Kiernan reviewed the evidence and discussed the High Court authorities of Roberts and P v Police. The nine factors set out by Baragwanath J and Dr Djokovic were listed and her Honour then concluded:[9]
The real issue in this case is the ability to give instructions to counsel, and deciding what defence to rely on. The evidence I heard of Mr Dougherty’s delusional disorder was that he believes that the Inland Revenue Department is involved in deliberate persecution of individuals within the community for the purpose of forcing them to commit suicide. … I also heard evidence that Mr Dougherty’s delusions influence his ability to instruct counsel. At the same time it was said that he is not basing all his instructions on his delusional beliefs. Accordingly, part of his instructions were valid.
An ability to give partial instructions against a background where a delusional disorder distorts the perception of a person as to why the prosecution has been brought is not a combination that would allow the accused to make his version of facts known to the Court and counsel.
[9] At [20]–[21].
Consequently the finding was made that Mr Dougherty was unfit to plead.
Analysis
As we have noted, prior to the enactment of the Criminal Procedure (Mentally Impaired Persons) Act, the law in this area was settled. It was as set out in the passage already cited from Power, a position that mirrored the law in England.
R v Roberston involved a challenge by an accused person to a jury finding that he was not fit to stand trial.[10] The Court upheld Mr Robertson’s challenge, holding that the decision of unfitness wrongly reflected considerations of whether an accused could act in his own best interests. Medical evidence had suggested Mr Robertson was capable, for example, of understanding his right to challenge jurors, but had also suggested that, because of his delusions, he might exercise them unwisely. Lord Parker CJ observed:[11]
Counsel for the appellant submits that the appellant on the evidence here appears to have had a complete understanding of the legal proceedings and all that is involved and, although he suffers from delusions which at any moment might interfere with a proper action on his part, that is not a matter which should deprive him of his right of being tried. This court has come to the conclusion that this trial was unsatisfactory in that respect. The jury may have thought that the mere fact that he was not capable of doing things which were in his best interests was sufficient to enable them to return that finding of disability.
[10] R v Robertson [1968] 3 All ER 557 (CA).
[11] At 560.
To like effect is R v Berry, which again was an appeal by an accused person against a jury verdict of unfit to plead.[12] The appeal was allowed, it being concluded that the direction to the jury was unsatisfactory for the same reason articulated in Roberston:[13]
The jury may have thought that the mere fact that he [the accused] was not capable of doing things which were in his best interests was sufficient to enable them to return that finding of disability.
[12] R v Berry (1977) 66 Cr App R 156 (CA).
[13] R v Berry at 158.
No further review of previous authority is required at this point because Mr Tennet accepts that the law was as has been set out. His contention is that the new Act has changed matters, rendering these authorities obsolete.
Support for Mr Tennet’s view comes from the High Court decisions in P v Police and Roberts. In P, Baragwanath J referred to the “new, comprehensive and sensitive” regime New Zealand now had as a result of the enactment of the Criminal Procedure (Mentally Impaired Persons) Act.[14] His Honour emphasised that the categories set out in s 4(b) of the unfit to stand trial definition – the ability to plead, to understand adequately the nature and purpose of the proceedings and their consequences, and to communicate adequately with counsel – were but examples of what capacity an accused must have before a court can be satisfied he or she is fit to stand trial.[15] It was in the context of this observation that Baragwanath J went on to set out the wider list of nine factors that could be considered when undertaking the assessment. Baragwanath J also drew on the writings of Professor Brookbanks, a topic to which we will return.
[14] P v Police at [44].
[15] At [43].
In P v Police itself there was no issue on the facts. By the time of the hearing, as a result of further evidence, the Crown accepted that P was unfit to stand trial, so the Court was not required to analyse the application of the Act to a contested situation.
In Roberts, Fogarty J had declared a mistrial following the accused mistakenly having given evidence without an opportunity to discuss his election with senior counsel. However, the nature of the accused’s now defunct evidence raised in the Judge’s mind concerns about the accused’s fitness to stand trial. Fogarty J accordingly directed that two psychiatrists assess Mr Roberts. In his ruling to this effect, his Honour set out guidance for the psychiatrists as to the relevant test they should consider when preparing their reports. A matter Fogarty J stressed was the difference between:[16]
whether or not an accused is fit to plead from the question of whether or not the accused is fit to make decisions in his own interests as to the conduct of the trial ...;
It was also observed that:[17]
Fitness to stand trial is a far more sophisticated question [than mental disorder] as to whether or not the accused person has the mental competence and stability to be able to make decisions as to the ability to conduct a trial.
[16] Above n 5, at [23].
[17] At [28].
Although not citing R v Power, Fogarty J appeared to recognise these tests to be a departure from the previous approach. He cited in support of his direction the judgment in P v Police and the commentary in Adams on Criminal Law.[18] Changes noted from the old Act were:
(a)a change in the threshold test from “mental disorder” to the new test of “mental impairment”; and
(b)the fact that the traditional three limbs of the fitness to plead inquiry, namely the capacity to plead, to understand and to communicate, were now but subsets of a new overall test of whether the defendant is unable to conduct a defence and instruct counsel to do so.
[18] At [54].
As well as relying on these High Court decisions, Mr Tennet submitted that this Court’s decision in SR v R should be added to the list of authorities in favour of a new approach.[19] We disagree. It is true the Court at one point endorsed the observations of Fogarty J, but that comment relates solely to the observation that a finding of mental impairment was only the initial step in an unfitness inquiry. There still had to be the link from the mental impairment to a consequent incapacity to stand trial. The case does not assist on the present issue.
Decision
[19] SR v R [2011] NZCA 409, [2011] 3 NZLR 638 (CA).
We are satisfied that there is no discernible statutory intention to move away from the settled principle that fitness to plead does not include an inquiry into whether the accused will act in his or her best interests. We accept that the new drafting structure allows scope for consideration of a wider range of factors than previously might have been the case. But there is no statutory support for a change in relation to decisional competence, and we do not consider the Courts should implement one.
Turning first to the text of the Criminal Procedure (Mentally Impaired Persons) Act, the starting point is how the test was previously stated. Section 108 of the Criminal Justice Act 1985 provided:
108 Interpretation
(1) For the purposes of this Part of this Act, a person is under disability if, because of the extent to which that person is mentally disordered, that person is unable—
(a) To plead; or
(b) To understand the nature or purpose of the proceedings; or
(c) To communicate adequately with counsel for the purposes of conducting a defence.
(2) In this Part of this Act, unless the context otherwise requires, references to acquittal on account of insanity include references to the dismissal of an information by a District Court on account of the insanity of the person charged.
It can be seen that the new Act changes this in three respects:
(a)the precondition for a finding of unfit to stand trial is changed from mental disorder to mental impairment;
(b)the traditional three capacities an accused person must have remain as requirements, but it is made plain that the unfitness inquiry is not necessarily limited to those three factors; and
(c)the qualifier “adequately”, already part of the ability to communicate inquiry, is added to the ability to understand inquiry.
The reasons underlying the change from disorder to impairment are well known.[20] There was concern that the existing concept of mental disorder did not cover those whose lack of fitness to stand trial was sourced solely in intellectual disability. The new concept of mental impairment was considered to be flexible enough to embrace not only the intellectually disabled, but also others whose mental health issues, sourced in whatever cause, raised concerns about their ability to present a defence.
[20]They are identified in the explanatory note to the Bill (see the Criminal Justice Amendment Bill (No 7) 2003 (328–1) (explanatory note) at ii).
The change in s 4(b) of the definition whereby it is made plain that the three traditional capacities are not necessarily the only inquiries is not heralded anywhere as a significant change. It receives no mention in the Explanatory Note to the Bill, and is not amongst the changes noted in s 3 of the Act, which otherwise identifies the purpose of the Act as being “to restate the law formerly set out in Part 7 of the Criminal Justice Act 1985”.
It must be accepted that the new drafting means that a capacity –
(a)to plead;
(b)to understand adequately the processes and consequences; and
(c)to communicate adequately with counsel;
is not necessarily conclusive of fitness to stand trial. Other considerations are possible. However, the ability to communicate with counsel was part of the test under the Criminal Justice Act 1985, and there is nothing in the statutory scheme or legislative history to suggest a change to this inquiry was intended. Had it been Parliament’s intention, it would not have re‑enacted this limb of the test in identical terms.
Including a “best interests” component has its supporters. Most prominent is Professor Brookbanks whose views in this area rightly command respect. In his recent text on the topic of fitness to plead, Professor Brookbanks devotes a chapter to this issue of trial competence and best interests.[21] What emerges from this discussion is the author’s opinion that the legislation presently does not provide for this inquiry, although Professor Brookbanks would contend it should. There is no suggestion in the text that the Act had brought about this change or was intended to do so. Equally it is noted that in the United Kingdom, whilst there are law reform proposals for change, the law remains settled.
[21]W J Brookbanks, Competencies of Trial: Fitness to Plead in New Zealand (Lexis Nexis, Wellington, 2011). See also W J Brookbanks and R D Mackay “Decisional Competence and Best Interests: Establishing the Threshold for Fitness to Stand Trial” (2010) 12 Otago LR 265 at 272.
In addition to the absence of any statutory support for change, we note that this Court has recently reaffirmed the importance in this area of personal autonomy. Power and the English authorities both stress an accused’s right to defend himself or herself as he or she wishes. This point was again recently made in R v Cumming.[22] There the accused suffered from paranoid delusions. He was assessed as being fit to stand trial, and the defendant represented himself in relation to a number of charges of sexual offending and assault of a young woman. He was convicted following jury trial. There then followed a rather prolonged appeal process in which Mr Cumming’s fitness to stand trial was revisited.
[22] R v Cumming [2006] 2 NZLR 597 (CA).
Although this Court’s hearing took place a considerable time after the new Act came into force, at the time of Mr Cumming’s trial the Criminal Justice Act 1985 was the operative statute. In the context of fitness to stand trial, and the right of an accused to defend himself or herself, this Court observed:[23]
The right to be self‑represented when defending charges at a criminal trial reflects the principle that accused persons are entitled to choose their defences to the charges that they face, to determine the content of those defences and to present them in the manner they choose to the Court determining the charges. The purpose of the right to self‑representation has been described by the Supreme Court of the United States as being “to affirm the dignity and autonomy” of the accused person in addressing criminal charges (McKaskle v Wiggins 456 US 168 (1984) per O’Connor J). In delivering the majority opinion of the Supreme Court in its leading decision on the right to self‑representation in Faretta – an opinion which Douglas, Brennan, White, Marshall and Powell JJ all joined – Stewart J at p 820 said that the right is:
“... given directly to the accused; for it is he that suffers the consequences if the defence fails.”
Later, at p 834, citing Brennan J in a concurring judgment in Illinois v Allen 397 US 337 (1970) at pp 350–351, Stewart J added:
“The right to defence is personal. The defendant, and not his lawyer or the State, will bear the personal consequences of a conviction. It is the defendant, therefore, who must be free personally to decide whether in his particular case counsel is to his advantage. And although he may conduct his own defense ultimately to his own detriment, his choice must be honoured out of ‘that respect of the individual which is the lifeblood of the law.’”
The decision of the Supreme Court of Canada in R v Swain (1991) 63 CCC (3d) 481 at p 504 per Lamer CJC is to the same effect.
The exercise by accused persons of their right to conduct the defence personally accordingly is not premised on an expectation that they will do so in a skilful or effective manner. The context of intended self‑representation does not permit the Court, when considering if ss 24 and 25 rights are infringed, to take into account whether the decision to dispense with counsel is in accordance with the accused’s best interests.
[23]At [42] and [43]. Mr Cumming successfully appealed to the Supreme Court. (Cumming v R [2008] NZSC 39; [2010] 2 NZLR 433.) However, the different result turned on fresh evidence introduced at that stage of the process, which established that Mr Cumming was indeed unfit to stand trial.
In the course of his submission Mr Tennet referred us to decisions in overseas jurisdictions. Our analysis of those cases leads us to conclude that this concept of personal autonomy influences similar statements of the law. In R v Taylor, the Ontario Court of Appeal resisted arguments for an increased threshold for capacity and affirmed a “limited cognitive capacity” standard which expressly did not include a best interests component.[24] It was considered that introducing a best interests component:[25]
… derogates from the fundamental principle that an accused is entitled to choose his own defence and to present it as he chooses... An accused who has not been found unfit to stand trial must be permitted to conduct his own defence, even if this means that the accused may act to his own detriment in doing so.
[24] R v Taylor (1992) 77 CCC (3d) 551 (Ont CA).
[25]At 567. The Court stated that the fact that a disorder causes a defendant not to act in his best interests does not of itself lead to a conclusion of unfitness to stand trial. This statement was expressly endorsed by the High Court of Australia in Eastman v The Queen [2000] HCA 29, 74 ALJR 915, at [26].
Another case referred to by Mr Tennet is R v Friend, where there is a reference to the test including an assessment of whether an accused “can understand and reply rationally to the indictment”.[26] However, there is nothing in the balance of the judgment to suggest that, in including the concept of “rationally”, the Court of Appeal was intending to introduce a best interests component or depart from the settled position.
[26]R v Friend [1997] 2 All ER 1011 (CA) at 1018. Brookbanks and Mackay above n 21, at 272 refer to this passage in Friend, but also acknowledge the law in the United Kingdom is settled and does not include a decisional competence inquiry.
We recognise that it is possible to take different views on the issue, and Professor Brookbanks sets out reasons in support of including a best interests inquiry. He contends that allowing people to make irrational decisions, where that irrationality is sourced in mental impairment, impugns the integrity of the criminal justice process. Further, he queries the validity of the personal autonomy viewpoint when there is an underlying incapacity to know what is best, and therefore meaningfully to exercise the autonomy.
There is obviously substance in that viewpoint, but so too is there merit in the competing view that one should not make decisions for people just because the immediate wisdom of their choices is not apparent. For example, on one view of the present case, and indeed it was a proposition put by defence counsel to the psychiatrist, Mr Dougherty has no apparent defence at all. So is he to be denied the right to dispute the charge based on his belief that he is being persecuted?
Although the extremes of his beliefs, as they touch on the motives of the Commissioner, are obviously irrational, Mr Dougherty would not be the first or the last defendant to run a defence sourced in the belief that he is being picked on. He is a man who understands what is happening, knows and understands the charges, and is able to tell his counsel what defence he wants to run. It may not be an effective defence in terms of testing the prosecution case, but here his other choices (perhaps) are simply to put the Crown to the proof or to plead guilty. And because he will not (it seems) choose those options because he considers the charges to be the product of a desire on the part of the Commissioner to persecute him, it is contended he should not have his day in Court because he is not thereby fit to stand trial. That this should be the law is not at all apparent to us, especially when one considers the jeopardy to which a person is exposed once they are held to be unfit to stand trial.
Further, the practicalities of implementing a best interests test have not, in our view, been sufficiently examined. The present case illustrates the practical difficulties a Court would be presented with. Apparently, the psychiatrists and defence counsel all knew what Mr Dougherty’s instructions were, but the Court did not. How then is it to assess whether Mr Dougherty is acting in his best interests, and whether he is able to do so? Is that assessment to be measured against other available “rational” instructions he might give, and if so, by what means is the Court to know what those alternatives might be? In the absence of a pre‑trial statement, a Court does not know what an accused says about the offending.
As we acknowledge, there are legitimately competing views, but that emphasises that the proper route for change, if one is to occur, would be a law reform exercise. What can be said at this point is that the law was settled, a reform was undertaken which culminated in the 2003 Act, there is no indication that Parliament intended to change the settled law, there has been no change in the comparable authorities in England, and as recently as 2006 this Court reaffirmed its commitment to the underlying principle of giving pre‑eminence to personal autonomy that informs the Power statement of the law. Given these factors we accept the Solicitor‑General’s submissions and confirm that Power continues to state the law.
Before moving on to consider the particular case, we wish to emphasise that there are various aspects of recent decisions that we endorse. We accept that the issue of fitness to stand trial is a case specific contextual assessment that must have regard to the nature of the impairment, how it manifests itself and the complexity and nature of the charges being faced. And perhaps also to the number of charges, because that can affect not only complexity but also the length of the trial, and therefore increases stress. Stress can in turn affect the severity and impact of the mental impairment.
We also see merit in the expanded list of factors identified in P v Police. They provide useful guidance to the health assessors as to the types of decision that arise in a trial process. They are not themselves the test, because that is set out in s 4 of the Act and must always be the ultimate question. But vagueness is a constant challenge in this area and something that helps focus the inquiry is of value. In this regard it may often be helpful for the nature of the charges and the apparent trial issues to be identified early on, so that the health professionals’ assessment can be more case specific in terms of the task that will be required of the accused.
An example of a contextual approach is provided by this Court’s recent decision in Barton v R.[27] The details are not important but this Court agreed with the trial Judge that Mr Barton was fit to stand trial on some charges, but not on others where a greater level of complexity (consent and reasonable belief in consent) was involved. The case also illustrates the type of measures that can be put in place in mental impairment cases to ensure a fair trial, including limiting the type of question asked of the accused, were he to testify.
The present decision
[27] Barton v R [2012] NZCA 295.
We consider the appeal must be allowed. The decision reached by the District Court is referable only to a best interests test. Although her Honour does not expressly say that, the cases to which she refers are Pv Police and Roberts. It being our view that an incorrect test has been applied, the proper course is to remit the matter back for reconsideration in light of the law as affirmed in this case, and any fresh evidence there may be.
We also observe that we do not consider her Honour’s decision was available on the facts as presently disclosed, even having regard to a best interests test. Both psychiatrists were of the view that Mr Dougherty was fit to stand trial, and although of course their opinion is but advisory, the reasons that inform those views are significant. Mr Dougherty had been able to explain his intended plea, identify other options, and explain why he considered those options were not appropriate. He was also able to explain to Dr Pillai the consequences of conducting his defence the way he wanted to. Given these factors we consider there is presently no evidential basis that could support a finding of unfitness to stand trial.
Finally, since the matter may be the subject of a further hearing, we urge caution as regards concepts such as “partial instructions”. We frankly did not understand exactly what was meant by that, and found nothing in the evidence that assisted. It may have been a reference to instructions being partially sensible and partially not, but it was not clear. If it did mean that, then it will not be a relevant consideration, other than in an extreme case such as R v Carrel where the delusion meant the accused could not give instructions at all.[28]
Orders
[28] R v Carrel [1992] 1 NZLR 760 (HC).
The question posed, and our answer, are:
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? No.
The matter is accordingly remitted to the District Court for reconsideration of Mr Dougherty’s fitness to stand trial.
Solicitors:
Crown Law Office, Wellington for Respondent
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