The Queen v B (CA236/02)

IN THE COURT OF APPEAL OF NEW ZEALAND

CA236/02

THE QUEEN

B (CA236/02)

Hearing:	28 August 2002
Coram:	Blanchard J Robertson J Panckhurst J
Appearances:	T Ellis and P F Chambers for Appellant J C Pike for Crown
Judgment:	2 September 2002

JUDGMENT OF THE COURT DELIVERED BY ROBERTSON J

On 13 June 2002 Her Excellency the Governor-General by Order in Council pursuant to the powers contained in s406(a) of the Crimes Act 1961 referred to this Court the question of a conviction of Mr B for sexual violation by rape.
The total circumstances are summarised in the Order in Council in the following terms:
Background
2.        Information about trial, appeal, and serving of sentence and liability to detention in hospital – (1) On 12 September 1996, the applicant was convicted in the District Court at Auckland on 1 count of sexual violation by rape.
(2)    On 26 September 1996, the applicant was sentenced by the District Court at Auckland to 7 years’ imprisonment.
(3)On 3 September 1998, the Court of Appeal –
(a)   dismissed the applicants appeal against the conviction; and
(b)   dismissed his appeal against sentence.
(4)    On or about 7 April 2000, an order was made under section 45(2) of the Mental Health (Compulsory Assessment and Treatment) Act 1992 as a result of which the applicant served the balance of his sentence as a special patient under that Act. The applicant has ceased to be liable to be detained under his sentence but remains subject to a compulsory treatment order.
(3)       Circumstances of applicant’s plea of guilty – (1) On first appearing in the District Court at Auckland, on 20 May 1996, the applicant was assigned counsel. Mr Adam Couchman, who sought and obtained a referral of the applicant to Forensic Psychiatric Services.
(2)       A series of psychiatric reports were commissioned and completed in relation to the applicant’s mental state, culminating in a report dated 4 September 1996 by Dr David Chaplow, in which Dr Chaplow concludes that, in his opinion, the applicant was not under legal disability.
(3)       On 27 June 1996, because of concerns about the applicant’s proposed plea, Mr Adam Couchman sought the leave of the District Court to withdraw from the case, and was replaced by Mr Richard Earwaker.
(4)       On 26 August 1996, the applicant gave Mr Earwaker written instructions that the applicant wished to plead guilty to the charge of rape. On 12 September 1996, because of his concerns about the applicant’s proposed plea, Mr Earwaker had the applicant confirm his written instructions in the presence of Mr Couchman.
(5)       The applicant then pleaded guilty and a conviction was entered.
(4)       Applicant’s first application for exercise of mercy of the Crown – (1) The applicant made an application, by informal letter to the Governor-General in late 1998, for the exercise of the mercy of the Crown in respect of his conviction for sexual violation by rape.
(2)       The grounds of the application were:
(a)that the applicant had inadequate legal representation at his trial and, in particular, that the applicant was wrongly advised by his counsel to plead guilty; and
(b)that the complainant had consented to the sexual connection concerned.
(3)       The application was declined.
5.        Applicant’s second application for exercise of mercy of the Crown – (1) The applicant made a second application, dated 16 January 2002, for the exercise of the mercy of the Crown in respect of his conviction for sexual violation by rape.
(2)The grounds of the application are, among others, that there is fresh evidence –
(a)that casts doubt on the fitness of the applicant to plead at the time he was called upon to do so; or
(b)that indicates that a defence of insanity may have been available to the applicant.
6.          Documents – The applicant tendered the following documents, among others, in support of the application:
(a)an affidavit dated 30 March 2001 by Mr Adam Couchman setting out his –
(i)anxiety about the mental state of the applicant;    and
(ii)reasons for withdrawing from the case:
(b)an affidavit dated 30 July 2001 by Mr Richard Earwaker setting out the circumstances of the applicant’s pleading guilty to the charge:
(c)a report dated 29 December 2000 by Dr David Chaplow, in which Dr Chaplow concludes that, in his opinion, the applicant, at the time of being called upon to plead, “may have been adversely affected by delusional perceptions swaying him to plead guilty rather than allowing his Counsel to put a defence of ‘insanity to the Court’

Reason
7. Reason – The reason for the reference is that the documents described in clause 6 indicate that evidence is available that could lead the Court of Appeal to the conclusion that the applicant may not have been fit to plead at the time he was called upon to do so, or may have had available to him a defence of insanity, and that a miscarriage of justice might have occurred.

As noted in the Order in Council, there had been a first application for the exercise of mercy on the basis of inadequate legal representation and the issue of consent. This request was declined. This present application was advanced on the basis that there was fresh evidence as to his fitness to plead at the time he was called upon to do so, and the possibility of a defence of insanity having been available.
In written submission on behalf of the appellant, additional factors were raised including the contention that, even if Mr B was not legally insane, his mental health would have been relevant not as to whether he understood the nature of the physical act of sexual intercourse, but whether in the circumstances in which it took place he knew it was wrong according to commonly accepted standards of right or wrong. Further, an issue was raised in light of Mr B’s now recognised mental disorder, that this may have been relevant to his belief in consent.
Although the Court on a referral of this nature will not operate within an inflexible straight-jacket, consent was specifically in issue in the first application for an exercise of mercy and that application was declined. It is clear from s7 of the Order in Council that the issues now before this Court are whether Mr B was fit to plead when he was called upon to do so, and secondly, whether he may have had available a defence of insanity.
The issue of a defence of insanity is difficult. It is a factor which under our law can be raised only by an accused person. If an accused who is otherwise fit to plead does not raise the issue, it is not a matter into which the Crown can initiate an inquiry (R v Green [1993] 2 NZLR 513) and the powers of the Court itself are heavily circumscribed.
To follow the argument now advanced, it is necessary to summarise the litigation history.
It is clear that from an early stage after Mr B was charged, there were questions being raised about his mental health. He was assessed at the Mason Clinic before depositions. At that stage he was found to be mentally disordered within s2 of the Mental Health (Compulsory Assessment and Treatment) Act 1992 but not to such an extent that he came under disability in terms of s108 of the Criminal Justice Act 1985. In an assessment made on 24 June 1996 by Dr Puloka (and forwarded to the Court through Dr D Chaplow) he was considered to be mentally disordered. In Dr Puloka’s report, there was also reference to an assessment which had been conducted by Dr Tyrone Burgess on 28 May 1996 which notes Mr B’s poor insight and judgment.
On 21 August 1996, Dr Prami Fernandez examined Mr B again, because of continuing concerns being expressed by his lawyer about the possibility of disability. Dr Fernandez’s view was that the appellant was aware of wrong-doing, was infatuated still with the victim and was prepared to plead guilty if she thought he had raped her. Mr B had acknowledged to the report writer that he knew his infatuation was not welcomed by his victim.
A further assessment was undertaken on 4 September 1996 by Dr Chaplow. He reported under a heading “Circumstances Surrounding of Offence”:
He hasn’t yet pleaded but told me that he intended to plead ‘guilty’. I explored this and explored the charges by reading to him the Summary of Facts and taking a history.
He told me that he met the complainant at a restaurant (“the Harbour Master, Waiheke Island) about September or October 1994 and began a sexual relationship in early 1995. Their relationship continued off and on up until about three weeks before the incident leading to the charges. He told me that they had had (consensual) sex three weeks prior to the charges and that at the time did not accept that the relationship had ended, even though a restraining order had been put on him a week or so before the incident. He stated to me that he was still fond of her and believes that she felt the same. He also accepted that his behaviour toward her at times was odd, (such as following her). He agreed that this constituted ‘stalking’. He also agreed that if he had his time again, matters would be different. He said that their relationship had been turbulent on account of both of their ability to drink alcohol to excess (unsubstantiated).
When taken through the ‘Summary’ he was able to discuss in detail whether he agreed or disagreed and to give relevant history about the circumstances leading to the charge.
He further told me that other charges relating to the circumstances had been dealt with and he had been sentenced to “four months”.
He told me that on the night of the alleged offence he hadn’t been drinking, nor had he smoked cannabis for at least a week. After the incident he had smoked a joint (to relieve tension) and was found with cannabis on his person.

And later Dr Chaplow said:

Mental State Examination
He presented initially as very shy and grinned in a silly manner and agreed with anything I said. After ten minutes he settled down and in a sober manner was able to relate intelligently and candidly about being before the court. With encouragement he was able to discuss, refute and argue in a pleasant manner. He reflected ruefully on the past incident and stated convincingly that things would be different in the future when he would return to finish building his house on Waiheke Island.
He understood the charge, the plea possibilities and the likely outcome. He was able to communicate with me very well. He evidenced no features of mental illness and agreed that previously he had behaved strangely. He had insight into the appropriateness/inappropriateness of certain behaviours.
He knew where he was, who I was, the time and the date and why I was examining him.

Dr Chaplow concluded this report:
Opinion and Recommendations
(1)   Currently Mr B is well and has no features of illness or mental disorder. Looking at the history of events surrounding the incidents leading to the charges, it appears that he was cannabis intoxicated soon after the initial incident (leading to the charge) and was psychotic at the time of the subsequent charges (known as ‘cannabis psychosis’). I don’t think that he was mentally ill at the time of the current incident, though that is only conjecture. It appears that his mental status has gradually settled since his admission to Mason Clinic on 13 June 1996.
(2)   He is not currently under legal disability for all of the reasons given above.
(3)   In mitigation, I believe that Mr B has an avoidant personality and was reluctant to believe his relationship with the complainant was at an end with the resultant escalating behaviour.
He would benefit by counselling advice which could be facilitated within the prison or in the community.
Following receipt of that report, the lawyers undertook the actions referred to in the Order in Council. Having obtained written instructions Mr Earwaker (who was then counsel) had his instructions confirmed in the presence of Mr Couchman (who had previously been counsel). Mr B then appeared in Court where he pleaded guilty. A conviction was entered accordingly and he was subsequently sentenced to seven years imprisonment.
While serving this sentence, in August 1998 Mr B was admitted to Stamford House in Wanganui for four months. He was later transferred to the Mason Clinic where he was diagnosed with a delusional disorder on 17 February 2000 and was held there for a month. He was again admitted to Mason Clinic on 20 March 2000 where he has remained to the present time.
The genesis of the present application is a report of Dr Chaplow dated 29 December 2000 addressed to Mr B’s legal adviser in which he opined that the guilty plea may have been based on delusional perceptions.
The opinions in that latest report are as follows:
Opinion
[a]Mr B has a mental illness. It appears to present as a ‘delusional disorder’ and is exacerbated by cannabis abuse. ‘Delusional Disorder’ is a psychotic illness, whereby the predominant symptom is delusional (namely, fixed false beliefs). It appears that when he first presented (1996) it was in the context of cannabis intoxication and gave rise to the diagnoses of cannabis precipitated psychosis. It is clear in hindsight that he has had ongoing illness necessitating, not only cessation of drug-use, but of anti-psychotic medication.
[b]In regard to the 3 questions you put:
[i]‘B’s fitness to plead at the time of his High Court hearing and whether there is a basis to re-open his case’.
The basis to re-open his case is a legal matter which I will put aside. In retrospect, I do believe that there is a basis to believe reasonably that Mr B, at the time of pleading, was not able to do so because of ongoing delusions.
The basis of s 108 CJA evaluation is notably ‘loose’ and imprecise. Ultimately determination falls on what the defendant tells the evaluator and whether Counsel can take instruction. I note that, at the time, all evaluators (including myself) thought Mr B ‘fit’ to plead, though we did not obtain the history then that he now gives. Our opinion was given in good faith and, on the evidence given then, my opinion would be the same.
[ii]‘What defence would be open for Mr B to pursue, should a re-hearing ultimately be granted’.
As I stated in 1996, as there was an apparent link between his psychosis and the unlawful events, a defence of ‘insanity’ could be entertained. This would have to be balanced against the remaining time of sentence to serve and the likelihood of being made a ‘Special Patient’ (s 1151(b)) and continuing to serve an undetermined sentence albeit in a hospital.
[iii]‘How my (current) opinion contrasts with the two reports prepared for the courts under s 121 CJA 1985 and the reasons for those contrasts’.
My assessment is little changed. The reports were carefully written. The only change is brought about by hindsight when it is now evident that Mr B has an illness, does need treatment and should desist from using hallucinogenic illicit drugs.
I do concede that, in view of the likelihood of him having an illness, that, at the time of making a plea in 1996, he may have been adversely affected by delusional perceptions swaying him to plead guilty rather than allowing his Counsel to put a defence of ‘insanity’ to the Court.
Mr Chambers, who made oral submissions in this Court, argued that the critical factor in this appeal is to be found in passages in the Minister of Justice’s report to the Governor-General when he said:
The petitioner submits a fresh report from Dr David Chaplow dated 29 December 2000 concerning the petitioner’s mental health. Dr Chaplow is inter alia director of the Regional Forensic Psychiatric Services.
It is axiomatic that the point at which it is relevant to consider the mental state of the petitioner is at the time that the offences were allegedly committed. On the face of it then, a report written some years after the event complained of and indicating his mental state at that point, might arguably not be thought to be relevant to his mental state at the time of the alleged offending. Its relevance, however, is that the author of the report revisits the petitioner’s mental state at the time of the alleged offending with the benefit of hindsight and in the light of what is now known about the petitioner’s psychiatric condition. In doing so, Dr Chaplow has effectively cast doubt on his own opinion at the time of the alleged offending so as to raise the very real spectre of a miscarriage of justice.
It follows that on this ground alone, the evidence proffered is both fresh and compelling.
The petition also advances the notion that neither of the petitioner’s two counsel properly alerted him to the existence of a defence of insanity in relation to the allegation made against him.”
From that passage Mr Ellis had argued in his written submissions:
It is clear from Dr Chaplow’s 29 December 2000 report, as well as the Section 121 report prepared by Dr Chaplow on 24 June 1996, that the possibility of insanity as a defence to Mr B had been considered as an issue worth exploring. The presence of this “flag” should have been sufficient for the Court to pursue the matter further if so desired, notwithstanding Mr B’s instructions to enter a guilty plea and that plea having been entered.
The defence of insanity would have been relevant not as to whether Mr B understood the nature of the physical act of sexual intercourse but as to whether, in the circumstances in which it took place, Mr B knew it was wrong according to the commonly accepted standards of right and wrong.
Furthermore, Mr B’s now recognised mental disorder, even if it were not such as to give rise to a defence of legal insanity (which is expressly denied), may have been relevant to his belief in consent. Certainly it would have been relevant to the honesty of Mr B’s belief. His fitness to plead was also clearly in issue.
The first issue is whether the appellant was fit to plead at the time that he entered his plea to the charge.
We acknowledge the Crown’s submission that initial assessments about disability were carefully made. Mr B was a high level user of cannabis and had cannabinoids in his blood consistent with his reported use. When the level of cannabinoids dropped, his behaviour stabilised.
It is relevant, as Mr Pike argued, that Dr Puloka had noted that the appellant had a good insight into his mental state and an awareness of his legal position. Further that he understood the nature and purpose of judicial proceedings. This view was confirmed by Dr Fernandez who said that, although there were signs of inappropriate behaviour, it was not of a sort which suggested an impairment or disability in terms of the approach summarised by this Court in R v Power (CA 187/96) 22 October 1996, particularly when it was said at page 7:
“That test (s 108) does not require that the appellant actually give instructions which are in his or her best interests. A very high 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.”
However, we cannot ignore the clear and unequivocal evidence of Dr Chaplow in his latest report when he says:
I do believe that there is a basis to believe reasonably that Mr B at the time of pleading was not able to do so because of ongoing delusions.

The doctor specifically noted that all evaluators, including himself, had thought Mr B fit to plead. Further the issues which are now raised, to call into question the original assessment, are matters which were not averted to by Mr B or by his legal advisers or by any of the doctors who saw him. However what Dr Chaplow, a highly respected expert in this field, is saying is that the particular emphasis upon his cannabis abuse may have masked an underlying mental condition which could have adversely affected his ability in a manner which was relevant under s108.

There are some particular characteristics about this application which, in our judgment, are of critical importance:
(a)both the lawyers who were involved with Mr B in 1996 had serious and continuing concerns about their ability to communicate with their client and to obtain proper instructions
(b)there were repeated assessments of his medical condition instituted and requested by the Court
(c)there was observed by all the professionals involved inappropriate and bizarre behaviour during this time
(d)Mr B, having pleaded guilty and been sentenced, continued to exhibit serious mental health problems which necessitated his being transferred from penal institutions to mental health facilities
(e)the most senior of the medical practitioners who expressed views on the issue of disability in 1996, now in clear and unequivocal terms, indicates that he may have been mistaken.
We are of the view that the cumulative effect of all those factors is to raise a serious issue as to whether Mr B was fit to plead at the time that he entered his plea in 1996. There is therefore a real possibility that a miscarriage of justice could have occurred and accordingly we are satisfied that the appeal should be allowed, the conviction based on his plea of guilty must be quashed and he should be remanded for retrial.
Whether there is a further trial in light of the period which he has already served in prison, his present mental health condition, and the general effluxion of time are matters for others to determine.
That conclusion on the first issue disposes of the matter but for completeness we should record that we were not satisfied that the issue of insanity had been adequately or properly addressed in the material before us.
Most importantly there is no evidence to suggest that, even if an evidential basis for raising insanity existed, Mr B was denied the opportunity to do that. There is nothing in the contemporaneous documentation, or the lawyer’s affidavits, which would suggest it had ever been seriously considered that Mr B should raise the issue of sanity. There is clearly recorded material which would suggest that Mr B had never wanted to do that and would not want to do so now.
As noted earlier, it is only in the most exceptional of circumstances that the Court itself could have intervened and put Mr B’s sanity in issue without his consent. There is nothing in the material before us to suggest that that very high point had been reached in this case.
In the written submissions, it was asserted that this Court should contemplate a substituted verdict of not guilty by reason of insanity. That was not a viable possibility. As well as the difficulty that Mr B has not indicated that such is his desire, the evidence before us could not possibly lead to the conclusion that, if the matter had been raised at the instigation of Mr B, a jury would inevitably have returned such a verdict.
On the basis on which we have dealt with the first issue, this question does not require adjudication. If there is a further trial, then Mr B can decide whether he wishes to raise insanity as a possible defence and a proper inquiry can then be undertaken into that question as part of the court process.
The appeal is accordingly allowed. The conviction is quashed and the matter is remitted to the High Court for retrial.
We record that Mr B’s application for a re-hearing under s14 of the Crimes (Criminal Appeals) Amendment Act 2001 (CA94/02) has been withdrawn.

Solicitors
Crown Law Office, Wellington

[2002] NZCA 241

2 September 2002