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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.
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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.
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- Solicitor-General v Dougherty [2012] NZCA 405
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- [2012] NZCA 405
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