Tegg v Police

[2022] NZHC 1097

IN THE HIGH COURT OF NEW ZEALAND NAPIER REGISTRY

I TE KŌTI MATUA O AOTEAROA AHURIRI ROHE

CRI-2021-441-33 CRI-2021-441-34 CRI-2021-441-35

[2022] NZHC 1097

BETWEEN

CHRISTOPHER PAUL TEGG

Appellant

AND

NEW ZEALAND POLICE

Respondent

On the papers
Counsel:	E J Forster for Appellant C R Stuart for Respondent
Judgment:	18 May 2022

JUDGMENT OF SIMON FRANCE J

[1]                  Mr Tegg pleaded guilty to offending committed in December 2017 and February 2018. Convictions were entered. Mr Tegg now seeks to appeal out of time on the basis of fresh evidence, namely expert evidence that he likely had a defence of insanity available to the charges.

[2]                  The 2017 event involved charges of (1) assault, (2) possession of an offensive weapon, and (3) threatening behaviour. Mr Tegg was resident at the time in a mental health unit, but left the premises. He visited a shop where he acted irrationally, threatening a staff member with spray bottles which he ultimately used on himself.

[3]                  The 2018 event involved (4) wilful damage. Mr Tegg returned home having been drinking, got into an argument with the other occupant, and started damaging the property. The description reads effectively as a temper tantrum involving kicking doors and other items, knocking items off a bench and other similar conduct. There

TEGG v NEW ZEALAND POLICE [2022] NZHC 1097 [18 May 2022]

was also at the time a (5) wilful trespass charge where he went into a shop from which he had been previously trespassed. He said he could not remember going there.

[4]                  Mr Tegg was recently charged with possession of a knife. The matter did not proceed as an expert report indicated Mr Tegg likely had an insanity defence. This prompted current counsel to seek advice on Mr Tegg’s likely condition at the time of the earlier events. Dr Barry-Walsh has advised that in his opinion it is likely Mr Tegg had a similar defence to those charges. He is less sure concerning the 2018 event due to less information being available, but considers it likely Mr Tegg was relevantly psychotic at the time.

[5]The appeal faces three hurdles:

(a)it is out of time;

(b)it is a conviction appeal where the defendant pleaded guilty; and

(c)it relies on fresh evidence.

[6]                  I am satisfied each hurdle is overcome by the present circumstances. It is clear that there was no consideration at the time to this defence, and the appeal has been filed as soon as a basis for it emerged. The fresh evidence is from a completely reliable source and its cogency causes freshness to become a background matter. Further, it can be noted Mr Tegg was resident at a mental health facility at the time of the December event and generally there is an apparent irrationality to the conduct which is consistent with the expert assessment. Convictions should not stand where there is the real likelihood the defendant was suffering from mental impairment in the way identified by Dr Barry-Walsh. Mr Tegg’s pleas were given in circumstances where he was not advised of a defence and should be set aside.

[7]                  The appeal is allowed and the convictions  previously identified as  (1)–(5) are quashed.

[8]                  There is disagreement as to disposition. Mr Forster urges there should be no retrial given the lack of seriousness of the charges. This is a relevant and sometimes determinative factor on an appeal, but not one I consider applicable here.

[9]                  First, there is a statutory process concerning “agreed” insanity verdicts which the prosecution may wish to use. There are potentially public protection issues given further alleged offending has recently arisen. That is not a direction from the Court as to what should happen. Rather it is an explanation why the prosecution should be given an opportunity to assess matters.

[10]              Second, there is presently the one opinion on those earlier charges, albeit there are two relevant assessments about Mr Tegg when all matters including the recent discontinued charge are considered. (A different psychiatrist assessed Mr Tegg in relation to the recent allegations.) While the one opinion is sufficient to require the Court to allow the appeal, there is scope for the prosecution to seek a further opinion if it chooses.

[11]              Leave to appeal out of time is granted. The evidence of Dr Barry-Walsh is admitted on the appeal.

[12]              The appeal is allowed, the convictions quashed, and a retrial ordered. Whether that occurs is a matter for the prosecution.

Simon France J

Solicitors:

Crown Solicitor, Napier for Respondent